RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 4300, 7 December 1876, Page 2

RESIDENT MAGISTRATE'S COURT.

Wednesday, December 6. (Before J. Bathgate, Esq., K.M.) Alleged Perjury. The further hearing of the case of Smythies v. Russell was taken in Mr Bathgate's room at 10 a.m. Aa before, Mr Denniston appeared for the prosecution ; and Mr Macassey for the accused. Mr Macassey intimated that it was not intended to call any evidence for the defence, but that he should urge that the information should be dismissed on broad points of law and fact. Mr Denniston : I was under the impression that the law points had been raised and decided. His Worship : Only the nonsuit point. Mr Macassey may reply to the evidence. Mr Macassey, in glancing at the evidence which had been tendered during the course of this inquiry, desired at the outset to draw his Worship's attention to some remarks that fell from his Honor the Chief Justice recently relative to committals from the Magistrates' Courts. The remarks he was about to quote fell from the Chief Justice in the course of a case in Wellington, where an application was made to release upon bail some one who had been committed by the Kesident Magistrate of that City, and it was during the argument, as reported by one of the Wellington papers —the ' New Zealand Times '- that the Chief Justice made some severe remarks upon the conduct of business in the inferior courts. His Honor said—

In his opinion Justices and justices* clerks did not understand their duty in conducting prosecutions. There were far too many committals in the Magistrates' Courts ; justices thinking that if there was a probability of a primd facie case beißg established, they were justified in sending the case to the Supreme Court for trial. Many people thought that the" Supreme Court was to blame for the number of acquittals which occurred every year, but the real fact was that prisoners were sent to trial without the evidence having been gone into properly in the inferior tribunal and there being consequently very often a valuable link in the chain of evidence missing. He (Mr Macassey) was not quoting the above in any other than the most general application, and he should found upon it thia test, which he submitted was the proper one, viz., whether there was any reasonable probability of a Grand Jury finding a true bill. The published report of the Chief Justice's remarks was, he believed, substantially correct, and very recently, while in Wellington, he was informed that the next number of the 'Jurist' would contain an authorised report of what appeared in the 'New Zealand Times.' If he was right in applying such a test to the present case, namely, whether there was any reasonable probability of the Grand Jury finding a true bill, he might also apply this test, would his Worship, acting as a Grand Jury, say there was sufficient to put the defendant upon bis trial ? Answering that in the negative would virtually dispose of the present information. lie contended that, looking at tht; tviilcnce, 1 litre was here an entire absence of any one of the various elements which went to constitute the offence of perjury. Undoubtedly, in every of this sort, the chief point which the prosecutor had to establish was that the statement made by the accused was not only material but false. He contended that here there was not a particle of evidence, even supposing that every statement arraigned by the prosecution was untrue, to show that it was wilfully and corruptly sworn. In one of these very cases—Russell v. Barton—where there was a prosecution for perjury, and afterwards an action for malicious prosecution was brought, Mr Justice JEtichmond, upon an application being made for a new trial, said— My own answers to'the questions tut to the jury

might havo been different; still when these ones, tions are answered iu the affiirtuative, it is by no means certain that the prosecution tor perjury is justified. Auian is not justified in preferring a charge of perjury in every case in which he has reason to believe that his adversary has made an trioorrect statement. It is not enough that the statement is false; there must be reasonable ground for believing it to be wilfully and corruptly

His Worihip t What year Was that ? f\? l »? laccassey : In 1866 - 0f cours e be (Mr Macassey) quite granted that it often might be that the falsity of the etateme»t itself might carry with it »onie internal proof of it« bslng corrupt and wilful: but here, ho submitted, the evidence was entirely the other way, Russell had no ob l?°* to servo in Blearing the affidavit whigh, t>s they had heard, was prepared for him by Mr Barton. It was used iu answer to an apphcatiou me,te by Mi- Smythies requiring either Mr Barton or Mr Howorth to pay the amount of his taxed ooutfl in the case of Russell v. Barton. As Mr Smythies had himself admitted, Mr Russell was virtually free from him, as far as any liability to him was concerned, long before proceedings were taken in 1888. Mr Smythies had procured Captain Russell's imprisonment; proceedings in bankruptcy were afterwards taken at his instance, and Captain Russell obtained his disoharge, m that Inasmuch as any liability on the paH of Russell was at an end, it fol lowed that his desire for assisting in the struggle with which Barton was involved I with Mr Smythies, was to benefit Mr Barton J ftud not himself. It was impossible to conceive any motive he could have had in stating that which was either wilfully or corruptly false. In the information which had been sworn in this case, it would have been observed that Mr Smythies himself had been guilty of what he would call a mis-statement in the important matter of time. The commission of the alleged offence was given in one year, whereas in point of fact the affidavit was sworn in another year. As he had before remarked, he had no desire to make anything of this beyond saying that what applied to the case for the prosecution applied to the case for the defendant. It was not every false statement that justified a man coming before a Court and accusing the person making it of stating that which was wilful and corrupt. Looking, therefore, at those statements which he would ask his Worship to go over he would contend not only that there was no evidence that they were false, but in point of fact there was a great deal of evidence to show that they were substantially true. The first statement complained of was :

That during said negotiations for settlement I explained to the said Henry Howorth, as the fact was, that a large proportion of the costs I showed to him were not chargeable against me, and that all the criminal proceedings against the defendant, George Elliot Barton, were undertaken for costs out of pocket ;»he, the said Smythies, stating to me at the time he urged me to commence them tbjtt he required them to clear his own character before the Judges, because as the .tatter then stood it did not appear whether he or the said George Elliot Barton had committed perjury. He (Mr Macassey) would confine his attention for the present to the first alleged assignment of perjury; and he submitted that looking at the evidence before his Worship there was a great deal to show that it was substantially correct. Mr Smythies himself, in his evidence, apparently felt that his former relations with Mr Barton had been of such a character as to preclude the possibility of his undertaking the conduct of the proceedings iastituted by Capt. Russell, in the ordinary role of a professional man. Then it appeared that Mr Rees, who had just arrived here from Victoria, came upon the scene, and Mr Smythies himself volunteered, or at all events agreed to render his assistance, provided it did not involve his appearance in Court. Of course, the question here was whether Capt. Russell could be accused of stating wilfully what was untiuc -when lie ouooccdod in eliciting from Mr Smythies the statements which he (Mr Macassey) had just referred to. Take the proposal which was made to Mr Ure in the memorandum in Mr Smythies' handwriting, which apparently he (Mr Smythies) forgot the other day, because he was then unable to tell the circumstances under which it was sent. At all events, it appeared that some sort of negotiations took place before the proceedings were taken which ended in Capt. Russell being imprisoned—that some overtures were made for settlement. In this memorandum, Mr Smythies proposed to take off all the charges connected with these socalled criminal proceedings, amounting to about L7O. In the face of a circumstance of that sort they now heard Mr Smythies stating that he was under no sort of obligation to waive one shilling of those claims. It was, he submitted, strongly in favor of the defendant, if at a time when everything was fresh in the recollection of all the parties Mr Smythies volunteered to give up the claim that he now asserts was a fair and legitimate claim. Mereover, they had the fact—whatever the reason might have been—that when the bill of costs was taxed, as Mr Smythies told them, the Registrar disallowed the costs of the proceedings, or some of them.

Mr Smythies: It was because the items were lumped. Mr Macassey : But there is the fact that the items were disallowed, whatever the reason was. There were the memorandum in Mr my thies's handwriting, and the correspondence which had been read, particularly the letter set out in the very affidavit Captain Russell had sworn—in the letter which was produced and read: that addressed to the ' Daily Times' in the year 1866, in which he said—- . The action was brought and more proved in contradiction to Mr Barton's affidavits than came out in the prosecution, the evidence being stopped then, but no report of the case was published, and therefore I bad failed in showing publicly, though proved, that whad I had sworn before the Judge was true. With the view of having the case heard before Mr Gees lett Dunedin, so that I might be cleared before the public of the charge of pei jury made by Mr Barton, I assisted Eussell with the information, but immediately upon his admission I handed the papers over to Mr Bees and acted no more in the matter, except as a witness, although I believe Mr Eees considered me as solicitor to the prosecution.

He (Mr MaGassey) submitted that every word in that was of the higktst importance, because unquestionably it showed that Mr Smythies felt himself to be peculiarly situated that he considered he was involved iu some species of moral contest with Mr Barton, the question being really one affecting his credit for veracity and straightforwardness. Taking, therefore, these three points to which he had drawn his Worship's attention, he submitted not only that there was nothing to support Mr Smythies's assertion that this statement in the affidavit of Capt. Russell was untrue; but there was a great deal that tended to prove that substantially it was correct. He invited attention to this circumstance : that in considering the character of the statements complained of in ihe information, it was unfair to Capt. Russell uot to glance at the 'vliole of the statements in his affidavit, because he set out wherever he eould- evidence corroborative of his own view ; he referred to letters wherever letters could be invoked; he quoted newspapers wherever that could be done, so that in professing to give a mere unsupported statement of his own of a'conversation which occurred botween them, it was aided by the sources of information to which he had appealed. Then they came to paragraph 2, which was admittedly not the subject of a prosecution for perjury ; and he passed over that. The third assignment of perjury was That while the said Henry Smythies -was still prosecuting the said action, he had in his actual fossession full copies of the said two deeds, which, was informed, by him ani lelieve he had, on the

twenty-third day of June, one thousand eight hundred and sixty.six, taken from the Supreme Court, where said oopies had been left with the Deputy* Registrar as exhibits to an affidavit sworn, on the twenty-second day of June, one thousand eight hundred and sixty-six, by George Elliot Barton and John Honibourne Sanders, , , ,

Unquestionably that Was the stinging elaUaG , in Captain Russell's affidavit, And it was . quite evident from the proceedings ihgti* -' tuted here Mr Smythies felt it very keenly. Ho would only «ay in regard to that, that if Capti Russell had been instigated by tttty feeling of malice, in the proper sense of the term, nothing could have better gratified that disposition than the proceedings Mr Smythies had himself taken, because it only required that this prosecution should fiud its way into the Supreme Court, when they would have every word raked up and made public through the columns of the newspapers, in order to revive one of these old scandals. He submitted that the evidenco of Mr Smythies and his son tended to show that Russell, by these three para graphs, had endeavored to fasten upon him (Smythies) a charge of unprofessional conduct ; and that he done so upon admittedly most ample grounds. He submitted, even taking Mr Smythies' statement to be true, it was impossible to conceive a graver act of professional misconduct j that of which he in effect pleaded guilty. According to his own showing, it seemed that he was employed by Russell, the former client of Mr Barton, to conduct some business of his, part of which was to apply for, and if possible obtain, copies of two instruments affecting a run in Southland, in which he was interested. It appeared from the letter placed in the hands of Mr Smythies that he had offered if copies of these documents were furnished he, on behalf of Russell, or Russell, should pay the costs incurred. Mr Smythies went on to tell the Court that, although that letter was written, I he did not of his knowledge afterwards make application for the delivery of the papers which he had asked to be copied, but that subsequently application was made to the Supreme Court for a rule nisi to attach Mr Barton or his firm for not delivering up these documents. This rule was argued and discharged, and they had heard that it was upon that very occasion that Mr Smythies became possessed of these two instruments. Mr Smythies : That is not correct. Mr Macassey : That is as I read the evidence. Mr Denniston remarked that on one of the days Mr Macassey was absent Mr Smythies asked leave (which his Worship granted) to correct a mistake in his evidence as to dates. Since his previous examination Mr Smythies had found out the actual date of this occurrence, and he was able to fix it. Mr Macassey said his observations were not directed to that fact. When Mr Smythies interrupted him he was about to quote his very words. According to the shorthand writer's notes, Mr Smythies said, in reply to the question—

Q. As order of time is of some consequence, I am going to draw your attention to some dates. You see the letter I have already read is dated in April. When was your application made for a rule nisi for attachment P It was discharged, with costs, was it not?—A. I dou't recollect; the proceedings will speak for themselves. I cannot, after this length of time, recollect matters of that nature.

Q. This is the point lam coming: to. "Was it not upon the argument > f that application that you took away with you the two deeds referred to ? A. I have already said, in my depositions, that I think it was so. I believe it was. I take that from Captain Russell's affidavit. I have no recollection myself when it was.

Mr Macassey : That was just what he was stating : that upon the argument ot the rule ni-i to attach Mr Barton, because he did not deliver up these papers, Mr Smythies became possessed of them at the Courthouse, and took them down to his office. It seemed that, according to Mr Smythies'own account, he was himself very strongly impressed with a sense of the impropriety of his proceedings. He felt that the deeds belonged to Mr Barton; that they came accidentally, but nevertheless improperly, into his possession, and that his first duty was to at once return them. But instead of doing that he felt coerced by what Russell said. He did not return them, but retained them and permitted his son to make copies of them. Hut so strongly did he ,feel that he was lending himself to a transaction of a grossly improper character, that he declined then and there, in most emphatic terms, that he would not allow his name to appear on the back of the copies; that he would not make them a subject of charge; and that he would have neither anything to say to them, nor allow them to be copied in his office. Assuming that to be correct, as he (Mr Macassey) was quite willing to do, it was evident that Mr Smythies considered at that time that he was lending himself to a transaction of which many men would be ashamed. But how did he get over the he (Mr Macassey) would call the conscientious difficulty. Instead of the instruments being copied in his office, they were copied, as he (Mr Smythies) first said, in his son's house, but upon an interjection by him (Mr Macassey) as to whether it was done in the son's house, Mr Smythies replied, "In my house," so that apparently it was conceived that while copying the deeds in his office was something that ought not to be tolerated —a change of site, in selecting his house instead of the office, removed the difficulty altogether. Then it appeared that these copies were kept in the possession of either Mr Smythies or his son—either at the house or the office—for the space of a couple of months. At all events, according to the sou they had it that some time later than that when he had gone to Russell to apply for payment to account of costs, Russell had asked and persuaded him to give up possession of the copies. Assuming that to be true, and what both Mr Smythies and his sou had stated was'free from all objection, he (Mr Macassey) submitted that it was impossible to conceive anything of graver importance, anything more thoroughly discreditable to a professional man than that Mr Smythies admitted he was guilty of. Granted, for a moment, there might possibly be some slight distinction between what Russell said in his affidavit and what Mr Smythies and his sou had stated in their evidence, it was not because of any discrepancy in matters of comparative iusignificance that, therefore, an imputation of perjury was to be made. What was it Mr Russell swore ? That while the said Henry Smythies was still prosecuting the said action, he had in his actual possession fuU copies of the said two deeds, which I was informed by him, and believe he had, on tto tweuty-third day of June, one thousand eight hundred and sixty-six, taken from the Supreme Court, where said copies h*ul been left with the Depu'yRejjistrar as exhibits to an affidavit sworn, on the twenty-second day of June, one thousand eight hundred and sixty-six, be George Elliot Barton and John Honibounn Saunders.

He (Mr Macassey) submitted that the gist of the charge there made against Mr Smythies was that he had been guilty of doing something which would exclude him from practisiug as a solicitor, or, to adopt his own view of that fact, "that lie was guilty of conduct which ought to shut him out of the beneficent consideration of the Legislature." What was the excuse Mr Smythiee offers as a palliation of his con duct ? It was that he was acting in his capacity of solicitor to Russell; that Russell had imposed upon him the strongest injunctions, not to part with these instruments—these two deeds- to Mr Barton, because as Barton was indebted to him in more than would pay for the copying of the deeds, the keeping of them was not in any way an improper act, or an act of injustice to Barton. Still he (Mr Macassey) apprehended that no professional man was entitled to take

' ttp such a position as Mr this matter. He was essentially the guardian of his own honor, the sole judge of what the dtlty of a professional, man was, and it was quite idle to Bay-that because his client, as he now asserted, required him not to part with the possession of these documents his duty to the Court of which he was "officer ttud to the profession of which he was a member Was to be sacrificed. The mere question whether Russell did advise Mr Smythies, as he Bwore he did, to return the documents, or whether, as Mr Smythies asserts, Russell forbade him to return them was, he (Mr Macassey) submitted, a thoroughly insignificant question. The real charge Contained in the affidavit was that Mr SmythieS was guilty of conduct of which any professional gentleman ought: to be ashamed Then they k?d in the following paragraph the assertion that Mr Smythies prosecuted the action while he bad in his actual possession full copies of ito deeds. But it might be convenient, in order to shorten the proceedings, that he should advert to what appeared in paragraph 6:— That a considerable portion of the costs in the said action fur discovery of the contents of said deeds were incurred subsequently to the possession by the {said Smythies of the said copies, asd Ire- .' monstrated with said Smythies against his carrying on the said action after he had fall knowledge of se id deeds, hat he induced mo to believe that said notion involved other rights, and that I wonld recover heavy damages agalnstithe said Ho worth, Barton, and Howorth; but I now believe the said - Smythies carried it on solely to harrass and oppress - the defendants, and to make costs against me; and he, in fact, afterwards discontinued said aetion, which never came to a trial. According to the evidence to which he* was about to direct attention, he submitted that those statements were substantially correct. Mr Smythies had endeavored to avoid their effect by assuming that while the proceedings were barren of fruit or bore no fruit ultimately Captain Russell derived very considerable benefit from his endeavors; ' that he was paid LSOO or 1/700 as the direct consequence of the proceedings instituted by him (Smythies). The evidence, however, showed plainly that this was an entire misconception on the part of Mr Smythies. a2 had been seen, Russell had had allowed against him a demurrer on the part of certain of the defendants (Miller's trustees); and with regard to Mr Barton's firm, it appeared that the action against them was afterwards discontinued, so that no immediate result of a "beneficial nature accrued from the proceedings. Let them go a step further. Mr Smythies wished it to be; assumed that the money awarded to Russell followed almost immediately upon the pW* ceedings being discontinued. But they naot heard the arbitration had come to nothing j as Mr Morris had told them the three arbi- • tratois entertained different opinions aud no award was made. Then Russell became insolvent—once at all events : he thought Mr Smythies said once or twice; but it was not under the first insolvency that he (Russell) purchased his estate but under a later one. Then, according to what they had heard, the estate was exposed for sale by public auction. Mr Smythies himself was the purchaser, but he failed to comply with one of the conditions of sale which required that cash should be paid on the fall of the hammer. The consequence was that the so-called estate was sold a second time, and Russell, or Mr TJre for him, became the purchaser at L 63. Then, having, as it were, regained possession of his estate, some new arrangements were entered into between the trustees and Russell, ttre consequence of which was they eventuallypaid him a considerable sum of money, either LSOO or L7OO. The result, however, was evident; there was a lapse of a very considerable time—he believed somewhere about two or three years—between the purchase of the estate by Russell and the proceedings which Mr Smythies instituted in the Supreme Court, and which ended, as the evidence showed, in casting upon Russell nothing -but a very large burden of costs. The declaration in the case in the Supreme Court asked for, among other things, the discovery of the contents of two deeds. The declaration alleged : - That the said deeds are now in the possession of the said defendants—John Davie, Henry Hart, and Samuel Solomon Lazarus as such assignees, and the plaintiff has no copy of either of the said deeds. Then it asked that Either that the assignment by the plaint'ff to the said James Miller and Heury Miller shall be declared null and void, and the plaintiff be reinstated in the possession of the said moiety of the said ran and flock of sheep, or that the defendants John Davie, Henry Hart, and Samuel Solomon Lazarus, as such assignees as aforesaid, shall be declared to bo partners with the plaintiff under the terms of the said deed of partnership, and that the partnership accounts may be taken and balanced between the parties, and the partnership determined from and immediately after the settlement thereof. There was the material statement contained in the declaration that the deeds were in the possession of the defendants, the trustees in the estate, and that the plaintiff had no copy of either of them. Now Mr Smythies had himself given the occasion when he became possessed of these copies. Mr Smythies : No. Mr Denuiston : Mr Smythies gave general evidence of what he believed to be the date, but upon looking over it afterwards, he found it to be some time in October—after the second of October. Mr Macassey : Take it either way. I am quite willing to assume one of two things : either that Mr Smythies originally gave us a correct statement, that statement being to some extent founded on Russell's affidavit, or that he has since seen fit to alter the statement which he has made. Mr Denuiston : His answer was general he now makes it specific. Mr Macassey: I must take exception to any witness altering his depositions in an inquiry involving an accusation of perjury. Mr Denniston remarked that it had been already agreed by his Worship to allow the addition to be made to the depositions, but that on account of Mr Macassey's absence when the application was made, he (Mr Denniston) had been willing that the matter | should be adjourned. His Worship: I have no objection to I allow it to be made, subject always to the remark that if a witness of his character comes afterwards to correct his evidence he takes all the consequences. Mr Macassey : We have taken the precaution of getting short-hand writers' notes of the questions put to Mr Smythies and of his answers. Mr Denniston : As I have no short-hand notes I should like to know the actual state* ment. Mr Macassey : I must be allowed to conduct my own case. Mr Denniston : Looking at the circumstances, 1 must ask your Worship to take Mr Smythies's statement as to the date. It was entirely owing to Mr Macassey's absence that this was not done before. Mr Macassey : It would not make the slightest difference in what he was about to say—it only called forth comment. If an amendment was made in the statement of a witness sworn to in a prosecution for perjury. His Worship would have the clearest recollection of Mr Smythies' cross-examina-tion upon his bill of costs, of taking him over the items day by day, and. of endeavoring to get from him a statement of the amount of costs which had been incurred at the time when these copies were in his possession. Mr Smythies was asked the question— What was the total amount of your costs in that case?—Ll2s9s 2d, less L1217s Cd. The latter amouut was paid, if he (Mr Macassey) remembered aright, to the opposing party."

About June 2S, when you got ''the copy .rleedß'in I2!^ r i2*«'?i n *», was il 07ea so-much ?—I see the ■om 13 L 29 15b Ba, S&that those two statements of the total SJ o f , th e Mil of costs~-Li29 9s 2d, less oo j t ' an(i tfte atn °ttnt due upon the 26r& June, enabled bis Worship to -see tho amount of costs iucnwvd after Mr Smythies Had become possessed of theinformation in the copy-deeds, and likewise showed the ex ent ■Kussell Was unuecessarily burdened with an Goligation for costs. Thus upon Mr Smithies' own showing, as stated in Russell's affidavit. He submitted that a number of facts were entirely undisputed—the action never pro ceeded to trial; it was discontinued; no immediate beneficial results accrued to Russell from it; and if Mr Smithies bad observed the conditions of sale by which he bought, the beneficial interest afterwards acquired by Russell would have become his K bles s) property. As it seemed to him (Mr Macassey) the only part of the para graph to which exception could be taken Wra the imputation that Mr Smythies continued to prosecute Russell's action after he had acquired the information he was previously seeking for, and continued to prosecute it to the detriment of his client. He did not know that he could bring out the matter more clearly rhan by simply drawing attention to the amount of costs incurred in that action, and to the amount which had been incurred up to the time when the copydeeds got into Mr Smythies's possession. His Worship would at once see the utter uselessness of the litigation and the amount of costs which Mr Smythies had unnecessarily cast upon his client. His (Mr Mucaasey's) attention had been drawn to an Slaendment which was made some time later! by Mr Smythies. Witness: I now correct my statement in page 32 of the depositions, and say that it is true a considerable portion of the coats were incurred subsequent to my possession of the copies of the deeds. So that that was, as it seemed to him (Mr Macassey) an entire admission of the correctness of what Eussell said. He submitted that after a lapse of tight or nine years the magistrate should not Keep in suspense over the head of a person in Captain Russell's position the stigma involved in a charge of perjury. Nothing could be more offensive than to raise against any intelligent person the charge that he was not only swearing falsely, but that he swore so corruptly, wickedly, and deliberately. As he had already said, there had been a long interval which there had been no attempt to explain satisfactorily ; and as he had observed at the outset, he did &§t-suppose there was the slightest probability of any grand jury listening to such a f hwgS ior a single moment. Mr Smythies nad endeavored to explain the cfelay by putting it that while cognisant of the fact that this affidavit was made years ago, and that he was then inclined to object to many of the statements in it, it was only of late years that it had been productive of any harm to him. It had been said that these charges by Captain Russell had furnished the stumbling-block to his readmission to his profession: he was before this Court in order as it were to remove that difficulty and to pave the way for some legislative action. He submitted that the admission contained in that statement meant that Mr Smythies did not come before the Court as a prosecutor ought to do. Swearing wickedly, corruptly, and designedly was, he (Mr Macassey) submitted, the only motive allowable in a court of justice to establish the charge of perjury. Here, as he contended, Mr Smythies sought in a most improper and unbscoming manner to influence the Legislature ' by arraigning before a criminal tribunal Captain Russell, his former client, whose charges had remained undisturbed, no action having been taken to take his affidavit off the file, nor any proceedings, civil or criminal, taken in respect to it. It was noticeable—he was speaking now of the question of motive—that in the year 1868 Mr Smythies wrote to Russell complaining of the statements contained in his affidavit, saying— It may be that you have forgotten that I possess written evidence to refute these statements, and probably Mr Barton, when he drew up the affidavit, did not know that I possessed them.

Not one single scrap of documentary evidence had been produced by which Mr Smythies would be enabled to support his assertion. Mr Smythies might possibly relieve himself from that difficulty by saying that his papers having been destroyed or burnt when he retired from practice in 1869, and that those papers referred to in the letter just quoted were destroyed too; but this was a matter upon which one might comment at some length. During the course of thi3 inquiry Mr Smythies had not even suggested that the contents of any of those papers, if not destroyed, would have helped him. He had made no allusion to any paper which, had it existed, would have tended to support him in the assertions he had made that the affidavit was utterly incorrect, and he (Mr Macassey) submitted, m consequence, that the absence of that evidence, and of all allusion to it, were in themselves circumstances tending to cast a grave amount of suspicion on the present prosecution. Nov, Russell had at once replied to Mr Pmythies's letter, to the effect that if there was anything in his affidavit to which it could be proved exception could be taken, or that he could be conviuced it contained any inaccuracies, he would immediately make amends and corrections. He offered to remain in town and to attend at Mr Smythies' office to hear what he had to say. To which Mr Smythies replied : The false statements in your affidavits are all thoses which relate to your showing Mr Howorth bills of costs delivered to you in October, and the charge made against me of purloining the eonies of deads out of the Re,istraV' s office As yoTmus, know these to be falsa I need not prove it to you Could anything have been fairer or have indicated a proper motive more clearly than that offer by Russell, who said in effect Convince me that I am wrong if you can '• show me by any d cumentary evidence you may have that my recollection of the circumstances is at fault, and that I have been led thereby into mistakes, and I willonlvbe too happy to correct them." A few clays after the affidavit had been filed, Mr ferny tmes was only inclined to take exception to Mr Howorth having been shown the bills of costs delivered to Russell in October and to the charge made against him (bmythies) of purloining the copies of deeds out of the Registrar's office. Yet after the lapse of eight years, not only were these statements themselves incorrect but various other statements now to be found in the information, which covered, as would be noticed, considerably greater grounds than were alluded to in that letter. Then Russeil received no reply to his last letter, and Mr femythies remained in the country for a number of months. Speaking to the defr.y thatocenrredas from June, 18t>8, MrSmytb.ii s continued in practice before Mr Justice Wa.rd for mouths afterwards, and it was in the beginning of 1869 that he was removed : but during the whole of that interval no stops were taken by him to arraign Russell before the Supreme or any inferior Court on a charge of perjury, U or was any application nude to remove his affidavit from the fil& of tne Supreme Court, But after the lwwo of many years, when, strance to spy almost every witne-,8 who "could 4pose to the inana-cmciit of Messrs Howorth, Barton, and Ho worth's business in 1866 7 was dead or out of the country, tin's stale charge was l>en>g tried, which pWcd the defendant at every conceivable disadvantage. Granted that Mr Howorth senr took no active part ia the conduct'of the

firm's business, they had the fact that eVery important witness wag dead or out of the country. Mr Bryan ia in San Francisco, Mr Devore was in Auckland, Mr Sandera was dead, and Mr Barton is in Wellington. He submitted that all the circumstances being fairly considered, his Worship should deter mine whether he should exercisehis discretion and not commit the defendant. As already pointed out, a refusal to commit did not in any way prejudice the prosecutor, because he might have his recognisances taken, and he might prefer a bill before the Grand Jury at the next sittings ; but where the magistrate, exercising his judgment, committed the defendant, it practically gave to the prosecution the endorsement of the magisterial approval, and so long as that remained in suspense over the accused's head, he was necessarily subjected to a great deal of unpleasant observation, and his position was certainly not an agreeable one. While, if there was fairly here any matter in controversy, it would be the Court's duty to commit, yet in the entire absence of everything which was requisite to constitute the crime of perjury, his Worship should dismiss the accused, and leave the prosecutor to take such other proceedings as he might think lit.

Mr Smythies having been permitted to make certain additions to his evidence, His Worship intimated that he would deliver his decision on Wednesday next.