RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 4251, 11 October 1876, Page 2

RESIDENT MAGISTRATE’S COURT.

Wednesday, October 11. (Before T. A, Hansford, Esq., R.M.)

Judgment was given for plaintiffs by default in the following cases:—Coleman Burke v, James M‘Cabe, claim L 6 10s, for beer supplied ; same v. Alexander Muir,' L2O 9s; Arrow v. Greenwood, L2 17s, en a judgment summons (in instalments of Ll per month); Ziele and Co. v. W. Gawn, L3O, on a judgment summons (immediate payment or fourteen days’ imprisonment); Cooper v. Bainton, L 3, for money lent. E. M‘Liskey v. Isaac Buckley.—Claim L 4 15s, for goods supplied. Defendant admitted the claim, and the case was adjourned till the Bth prox., in order that defendant may pay the amount in instalments. Muir v. Sampson and Sampson.—Claim LlO, for the alleged wrongful conversion of a brown mare. Mr Denniston appeared for plaintiff; Mr A. Bathgate for defendants. Judgment was reserved. (Before J. Bathgate, Esq., E.M.) Alleged Perjury. —James Ure Russell was charged, on the information of Henry Smytbies, for that he did on the 10th day of June, 1868, in a certain matter then pending in the Supreme Court at Dunedin, falsely, wickedly, &c., commit perjury in a certain affidavit made by him. The allegations of perjury were set out in the information, as being contained in the following extracts from the defendant's affidavit

That during: said negotiations for settlement, I explained to the ►aid Henry Howarth, as the fact was, that a large proportion of the costs I showed to him were not fairly chargeable against me, and that all the criminal proceedings against the defendant, George Elliott Barton, were undertaken for costs oat or pocket; he, the said Smythies, stating to me at the time he urged me to commence them, that he required them to clear his own character before the Judges, because as the matter then stood it did not appear whether ho or the said George Elliott Barton hod committed perjury. * * * That so far from my being indebted to him in said sum of four hundred and thirty-four pounds sixteen shillings, 1 claim that rightfully he is indebted to me on foot of said accounts and costs. * * * That a port of the said Henry Smythies claims against me are for work done in the ease of Bnssell v. Strode after the said Smythies had notice of my intention to settle. * ♦ * That while the said Henry Smythies was still prosecuting the said action, he bnd in his actual possession fall copies of the said two deeds, which I was informed by him and believe he had, on the twenty-third day of June, one thousand eight hundred and sixtysix, taken from the Supreme Coart, where said copies had been left with the Deputy-Eegistrar os exhibits to an affidavit sworn, on the twentysecond day of Jnne, one thousand _ eight hundred and sixty-six, by George Elliott Barton and John Honiboarne Sanders. * * * That, -after the said Smythies had obtained the said copy deads ab aforesaid, afcd wfeea be ms mil amge

of their content*, fc* fttlSelr denied to Mr Justice Chapman, on a motion In tad said last-mentioned CattsC, that he had seen them. * * • Tlwtaoon* siderable portion of the costs in the »-.« action fop difeovery of the contents of said deeds were toourred subsequently to the possession by to® said Sinythies of said copies, and I remonstrated v*ltn said Smythies against his carrying on the said action after he had full knowledge of said deed 0 , but be induced me to hollers that said action in* volved other rights, and • hat I would teooverheavy damages against the mid Howartu, Barton, and Hownrth j but I nowjbelteve the said Smythiescarriediton solely to barrassand oppress thedoien. dants, and to make costs against me; and he, in fact, afterwards discontinued said action, wmoh never came to a trial.

Mr Smythies, addressing the Court, said the duly he had taken upon himself on this occasion was, he might truly say, the most painful he had ever taken in the course Of hie life. It was at all times painful to take criminal proceeding!? of this nature against any person, but that pain was much IfiOMMsd when the persons stood in tho relations of client JU id Holieiror, as the defendant and he had done. That paiil Waa infinitely increased by his being obliged to take fipen himself the double duty of prosecutor and counsel. From circumstances that were well known, he had been hunted to death by the members of : is own profession in this town, and his Worship could well understand—Mr Maccasey (with whom Walt Mr Howorth for tho defendant) submitted that it was not competent for Mf Smythies to appear in tho role of counsel for the prosecution and herald his case with such a spee bas he was making, He must proceed with the case in the ordinary Way-=stflp into the witness box himself and call witnesaca.—Mr Bmytiuea replied that from the nature of the afflJ toe Caurt w.mld see the matter required considerable explanation to bo Understood, and a goou deal Of that explanation could not be given as evidence to contradiction of tho affidavit.—His Worship reminded Mr Smithies that he was not sitting there to trf the case;’ therefore any explanation was quite unnecessary, if it was requisite to bring out in the course of the caße a full narrative of the facts, that must bo done by himself ftUd his witnesses upon Oath, and It would form part of the procedure, which, If there were any further proceedings in the way of Committal, would be forwarded to the proper quarter. But Mr pmythies was at present out of order in entering into any explanation which properly should be Stated l»j evidence upon oath. Neither prosecutor nor counsel had any right to address the Magistrate. Anything Mr Smythies considered neeessary to afford a clear view of the case ought to be given in evidence and not by way of address. There WaS one point he would allow Mr Smythies to speak upon. He thought it due to Hr Smythies himself, to the Court, and to the public that some explanation should bo given why ai this time of day—eight years after the i occuirenoe—proceedings ore taken. Some explanation should be given to account for the long delay that had occurred since the commission of the al'eged offence, why it had been allowed to 110 asleep so long, and he would limit Hr SmythiS® observa ions to that explanation.—Mr Smythies answered the first part of his Worship’s remarks by saying that his evidence in that case would take a great many pages and would occupy a great dealof lime. Forconveuience,hehaddeeireatomake . such observations as did not touch exactly upon the contradictions to the affidavit, leaving that part to be ; aken down in the depositions.—His Worship s f As a matter of practice and correct law, I am not at liberty to consider anything but what is in the depositions, upon which alone I make up my mind whether I send the case for trial or not.—Hr Smythies remarked that if he had had counsel toil question wonld not have been raised. The various Causes that first of all prevented him from bringing the case before and compelled him to do so now wonld come out little by little. Tho affidavit—the sulject of these proceedings—had been-* used against him in too case of Bussell v. Barton, against, him in the judicial inquiry of 1872, and latterly in one of the highest tribunals in the county—viz., in Parliament. He wonld contend that on each of these occasions the defendant came into Court with this affidavit, and declared that he made oath and said Henry Smythies raid so-and-so.—His Worship; Shortly, your explanation is that although this affidavit was made eight years ago it has been recently used to your prejudice, and you desire to clear yourself.— Mr Smythies: Just so. I will read a letter I wrote to defendant on the 30th nit. to show that I have no illwill-not the slightest—towards him. —Mr Macasaey objected.—Mr Smythies said in sub* stance his letter asked the defendant to confess that the affidavit was false, but ho refused to do so. —Mr Smythies was about to enter upon an explanation of the facts. when Mr Macassey informed the Court that Mr Begistrar Ward had just told him that the original of the affidavit was at present in Wellington.—His Worship held that he could not proceed without it, and after some argument the further hearing of the matter was adjourned for a fortnight, tho defendant being admitted to bail in his own recognisance of LSO.