CO885-(11-13) — Page 372

PUBLIC RECORD OFFICE

'' य 'ग

Reference :-

C.O.

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

No. 138.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Mr. Bram-

Temple, 25th May 1877. ston's letter of the 2nd of March last, stating that he was directed by your Lordship

1876.

to transmit to us a copy of a despatch from the Governor of South Australia, No. 39, 24 forwarding, with previous Acts relating to the same subjects, an Act passed by the November Legislature of South Australia in November last, entitled Insolvent Further Amendment Act, 1870," together with a Memorial praying the "An Act to amend the Governor not to assent to that Act, but to reserve it for the signification of Her Majesty's pleasure.

2. That we would observe that the Government of South Australia were desirous of receiving our joint opinion upon the points raised in that Memorial.

3. That the objections entertained by the memorialists were not very clearly stated,

but they appeared in the first instance to object to a clause necessitating an appeal to the Commissioner of Insolvency, which obligation was stated to be very disadvantageous to small estates.

That this was a matter which in your Lordship's opinion was one clearly for the Colonial Legislature to decide, and was not a point upon which our opinion appeared to be needed.

4. That the other clauses objected to by the memorialists were the 4th and the 9th. 5. That by the 4th clause non-resident creditors were not to be computed in number or value in reckoning the majority necessary to give validity to a deed of composition until after six months from the execution of the deed, unless they have, resident in the Colony, duly authorised and known agents. That your Lordship apprehended that that clause was within the competence of the South Australian Parliament seeing that the effect of it was not so much to deprive absent creditors of any right as to deprive resident creditors of the power of accepting a composition from their debtor without the knowledge of the absent creditors, who would nevertheless be bound.

6. That the 9th clause declared the Act to be retrospective, and the questions upon which your Lordship would more particularly wish to receive our joint opinion were whether clause 4 could lawfully be enacted by the Parliament of South Australia, and whether, having regard to that clause, the 9th section was within the powers of the South Australian Parliament, seeing that it altered the conditions of the existing

contracts.

Mr. Bramston was pleased to add that your Lordship would further be glad to be favoured with any observations which might occur to us upon the general scope and principle of the Act.

In obedience to your Lordship's commands we have the honour to

Report

That the effect of the 4th section may be to leave it doubtful for a period of six months whether a deed is valid or not, so that if within that time an effort were made to set the deed aside by reason of an insufficient number of assents, the Court would be obliged to declare such deed invalid, although it might be perfectly certain that but for the 4th section the assents would be sufficient. It is obvious such a provision is unreasonable and impolitic.

The avoiding of deeds valid at the time of their execution by er post facto legisla- tion seems to us most objectionable, and this undoubtedly might be the effect of the 9th section. Although, however, in our opinion, both sections 4 and 9 are objection- able, we cannot say that they may not be lawfully enacted by the Parliament of South Australia.

We have, &c..

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

(Signed)

JOHN HOLKER. HARDINGE S. GIFFARD.

▲ 12916.-134. 25.-12,84.