SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXI, Issue 4853, 11 October 1876, Page 3

SUPREME COURT—IN BANCO.

Tuesday, October 10. (Before his Hour the Chief Justice.) CONTEMPT OF COURT.

The Court sat at 10 o’clock, to resume consideration of the contempt of Court case in which Mr. Barton' appeared to answer the charge. Mr. Barton; May it please your Honor, I appear here now with five statements which your Honor required me to have; verified upon affidavit. . 1

His Honor : Mr. Barton, yon are, stating what is'inaccurate. I did not require that anything of the kind should he placed on affidavit, such matter being in my opinion entirely irrelevant to the : present inquiry. This I have already stated. But rather than check a person standing on his defence of a very grave offence, I permitted you to make the statements.

Mr. Barton : I am sorry your Honor considers it necessary to contradict me in so curt a manner. I must ask you to address me with the respect due to my age and my position at the bar.

His Honor ; I have every desire to do so, Mr. Barton ; but shall check you when you make statements which to my ownknowledge are not according to fact. Over and over again I have told yon that I consider the statements made jjy you as totally irrelevant. . Mr. Barton : Will your Honor permit me, under the. circumstances, to refer to the very able report of yesterday’s proceedings which appears in; this morning’s paper, the New Zealand Tihes.

His Honorc, I .am willing to admit, Mr. Barton, that the report is accurate— X do not know that it is quite accurate, but it is a most careful report. Mr. Barton : If yonr Honor will permit me to refer you to that report, you will find that you first required me to make a statement on oath, which I objectedto as a member of the Bar ; but you overruled'that objection. His Honor : Once and for all, Mr. Barton, I shall permit you -to State anything you may think fit, so long as you confine yourself within becoming limits. -1 should not think it proper - to check a .prisoner standing in that dock when making, statements in his own defence, and shall not‘eheck you. Mr. Barton ; Them,, if your Honor pleases, I will bow read, the affidavits to which ! have referred. ;’ ! will’first read the affidavit.of Mr,. Baker,’who was engaged as interpreter in the case Segiha v. Hokapu Te Puni. It is as fol-.

lows:— 1 ’ I, Ebegeser Baker, Native Interpreter, mate oath and say—.. : '■ 1. That ‘ I was la attendance on the trial of Kegina against Te Puni in the Supreme Court at this present October'aitttng. 1 2. That, oh, the morning of Tuesday, the 3rd day of October instant, I was'busy in ..the-offices, of .the Resident Magistrate's Court with some matters necessary to be attended at once, and that while'so engaged George Elliott Barton, Esq;, barrister-at-law, • came to me dressed in his robes as a barrister. * I was obliged to keep him waiting a few . minutes before I could attend to him. . , 3. Mr. Barton'then on that morning several time* asked me to accompany him to see the native witnesses. I replied, ", Hold .on a minute, Mr. Bartoni.” Mr. Barton appeared in a great hurry. 7 . At thjs time I was much pressed by reason of there’being a number' of people wishing to sign judgment before me prior to ten o’clock. .When I went into the Supreme' Court with Mr. Barton it was seven or.eight minutes past tan o’clock. I looked at the Supreme Court clpck at the time. ’

4. Mr. Barton deslred ine to speak to the witnesses for him, as he did not know them. I: did not quite understand what he wanted me to do. He was in a great ’hurry to get back into the court, and left me before I quite understood him. '■* ’

Mr. Barton then read the following draft of an affidavit prepared for Mr; Bell's signature : " '

I, Hehfy Dillon. Bell, of ‘Wellington, in the province of Wellington, New Zealand, barrister-at-law, make oath and say—1. That I am the Acting-Crown Prosecutor of this district. ... 2. That oh Tuesday, the 3rd day of October, I was in attendance at the Supreme Court in Wellington as counsel for; the Crown ;In the case of Kegina v. Te Pnni, and whilst rpbing I drew the attention of George Elliott Barton,' the counsel for the said Te Puni, that certain of the witnesses for the defence had on the previous, day ..violated the order of the Court by remaining in Court during the hearing .of the case, and X asked him to see the witnesses, and to give me a list of their himes.y'

3. That the said George Elliott Barton thereupon informed mS that he did not know the!names of all the witnesses,, .but would go and see Mr. Baker, the interpreter,' and get from him the names, and also get him to see that the Maoris do not come into Court till called on. i / ; ’ i -

4. That ; at ten o'clock punctually I attended the said Court, and as the said ft. E. Barton did not at once ‘come into Court, I addressed the learned Chief Justice, and said that the said O. B. Barton was seeing certain i Maori witnesses, so that they might not violate the, order, of the .Court excluding witnesses from being present during the examination of other 5. That when the said George Elliott Barton came Into Court a few minutes afterwards I informed him shortly of what had taken place before he came into Court. Note.—Mr. Bell will please to add to this draft anythlng.that.be thinks proper. If Mr. Bell’s recollection of what afterwards took: place before the Judge when Mr. Barton came In, in any respect differs from what took place when he Was before the Judge this morning, Mr. Bell will please to add it to the affidavit. Mr. Bell wrote the following letter to Mr. Barton oa the subject;—■

■Wellington, October 0,1876., D£Ah Me. Babton,—On thinking over the matter tery carefully* X have come; to the conclusion that 1 had better not make any, affidavit in the matter of your alleged contempt. I may say at onco that I believe the draft affidavit submitted by Mr. Fitzherbert to me this morning is correct in every respect; and I should be quite willing to swear to the facts as stated therein, if .1 could see. the necessity for my being in any way formally .connected with the matter. But as I believe that your own affidavit Is quite sufficient to prove the facts aa you state them, I do not see any reason for taking a course which I am very unwilling to adopt. lam now expressing no opinion upon any difference as to facts which may exist between the Chief Justice and yourself.-—I have, &«.;• Henry Billon Bell.

G. E. Barton, Esq. , ; This, your Honor, is the affidavit of Elliott L’Estrange Barton ;

I, Elliott L’Estrange Barton, of PetohV’ECar Wellington, In the province of Wellington, New Zealand, law clerk, make oath and say— : ,;' 1. That oa the trial of the Queen‘v. To Puni I was In attendance on George Elliott Bkrtbn, Esq., counsel for the defence, as his clerk. 2. That on Tuesday, the 3rd day of October inst., I entered the Supreme Court at between five and seven minutes past ten; the Court was then sitting, but the said George Elliott,Barton'4ras not there. 3. I saw the said George Elliott Barton enter the Court, and at the moment’he entered I looked at the, clock, the hands of which were at seven minutes past tea. I observed the fact 'because I was anxious lest the absence of 'the said George Elliott Barton should not be capable of satisfactory explanation* and I did not then know the cause of his prolonged absence. 4. That I have toad the affidavit of O. E. Barton herein, and- I.soy that the statement in paragraph 4 of what occurred.in Court is true, and! was present at the time..

6. I- was nlsb present when the said O. E. Barton refused to address the jury, and the statement la paragraph 6 of the Said! affidavit of . the saldG. E. Barton of whit then occurred in Court Is correct. 6. That X believe all the other statements in .the, said affidavit of O; E. Barton to be true, and so believe it.becauso of conversations which took place be-' tween'toe and the said G. E. Barton between the said

3rd day of October and the day on which the summons to.show.causeia Uria.maUet jvaa served upon.theaaidG. Erßarton; • ... j Mr. Barton then . read his bwn’'affidavit, as ■•follows:;-— — : ■ ;

I, George Elliott Barton, Esq., of Petooi, in the province of Wellington, make oath and say—1. That in Hilary Term, in the year 1849, I was called by the Lord Chancellor of Ireland- to the lrlsh Bar, and, am - still a member of that Bar,d am a graduate of the University of Trinity College, Dublin. I am a member of the Bar of Victoria, and I am alsb a member of the New Zealand Bar.-; -

12. That on the morning of .Tuesday,, the. 3rd-day nt October instant, Iwas in attendance at the Courthouse, and robed ready, at a quarter before,ten, for 1 the Court when it should sit. - ■ . ■ ■ -■-■■'

At a little before ten, Henry Dillon Bell, Esq., barrister-at-law. and Crown .Prosecutor,-came-into the robinjf-roora of the Bar in the said Courthouse, and while robing, he requested me to give him a list of the names of the witnesses whom I intended to call for the defence that day.in the case of Kegina v. Epuni.-’Ho also complained to me that-the witnesses’ for the defence on the previous day had remained in the Court contrary to the order of the Judge, and informed me that I must see the witnesses should not on that day violate the order. I informed Mr. Bell that! was. unacquainted with the names'of some, of the witnesses, and also with the Maori language,, and that in'some instances X could not distinguish the witnesses from the other Maoris present, in Court, but that X would'see Mr. Baker and get from him the names, and also get him to give the Maori-witnesses to understand that they were to remain out of Court. I then went to look for Mr. Baker, and found him in the inner office of the Resident Magistrate's Court surrounded by a great number of people and engaged in transacting business. I tried to get him to attend' to me. but was obliged to wait until he should, be disK ehgaged. After he was disengaged he came with me to the front of the Courthouse, where the Maoris were, some sitting, and some standing about, I tried to make Mr. Baker understand that X required of him to get the names of those that were to be called/and' to give the Maoris to understand that they were motto come into Court. Thinking that , I had made (Mr. Baker ...sufficiently understand what I wanted, I hastened with all speed into, the Court, and there saw his Honor the Chief Justice sitting on the bench waiting. I then looked at the clock, and was surprised to find that I had consumed so much more time than I had thought. The hands of the clock stood at seven minutes past ten. I proceeded to my place, and was about to address the Court in explanation of my absence, when the said Henry Dillon Bell whispered to me that he -had explained to the Court what I had been doing. Thinking that the Court had been satisfied by some explanation from him, I. remained qniet. waiting for the return of the interpreter, without whom the case could not proceed. 4. His Honor the Chief Justice then addressed me, severely rebuking me for keeping the Court waiting. I rose from my seat and commenced an explanation of my absence, Informing his Honor that I had been inthe Courthouse from a quarter before ten. In the course of my explanation his Honor the Chief Justice, as I understood him, stated it was my duty to bo in the Court at the sitting of the Court. I replied to his Honor by stating that I was in the Court, intending to follow up that statement by describing where I was. and what I had been doing. His Honor stopped my intended explanation by an interruption to the effect that I was not in the Court as I had stated. I repeated my statement that I was, and was then about to proceed with a detail of tho facts, when his Honor ordered me to sit down and not argue with the Court. 5. I sat down in obedience to tho order, and re i mained silent, under the Impression that his Honor would treatit as offensive if I made any further attempt to explain. My feeling was that I had been insulted and humiliated. ' 6. I called many witnesses, and examined them in the course of the trial. Mr. Bell made several applications to the Court of different kinds, which, had I not been laboring.under a sense of humiliation and I may say fear, I should have opposed before the Court on various grounds ; and when it came to my tnm\to address the jury, I felt unable to keep ray thoughts* upon the evidence and declined to address them. Ithen, daring the time the Judge was charging the jury, as I sat at the table In Court, wrote a letter to the Hon. the Colonial Secretary, making complaint and asking for an enquiry, and X marked it with the word “private." I forwarded that letter from the Courthouse. 7. After the trial was concluded I returned to my office in Brandon-street, and I there came" to the conclusion that it would not be right of me to send such . a letter without immediately imforming his Honor the Chief Justice of the fact, and X then, between the hours of four and five o’clock, wrote the letter to his Honor the Chief Justice, annexed to the affidavit of Chudly Wilmer, sworn and filed in this matter. I signed that letter with my name, and enclosed it in an. envelope addressed to his'Honor the Chief Justice. 8. I gave the said letter, enclosed In' the said envelope and- sealed, to my clerk; with: Instructions that it was; to be brought over to the Courthouse' and left there for his Honor for delivery to him when he should leave the bench. I was not in Court when, the verdict was given,' but I was afterwards, and before I had* so seat the letter to his Honor tho. Chief Justice, Informed that the Jury had given their verdict, and I was under the impression the .case had been concluded, and X felt "that as far as I was concerned I had finished with the case. I left my office to go home for the day to Petoni at about twenty, minutes .befpre five, in time to catch the five o’clock train; arid I did not deliver the letter to my said: clerk until just before I was so leaving. X .. , . , 9. I say that I sent the letter to- his Honor the* Chief Justice though a sense of honor in order that he shouldnot .be under the impression; that'l was 'bia back, i I felt, ,that urideF the :! circuinstancfes ft was not prbper’that T should ttddfessihhn either familiarly or in the ione of former friendship. 1, felt hound to address .him in the spirit of an accuser, and I thought it neithqrimproper nor discourteous that when informing him ! had .dq-; 'minded an inquiry I should state that I wag not' aware of any act on my part meriting his hostility. ‘lswear that X wrote to the,Colonial Secretary demanding a private inquiry in the hope that by keeping the matter private I should be leaving a door open to some satisfactory conclusion. I shrank from an accusation of so high an official, and X had no desire to injure or degrade him if I could possibly avoid it. I also swear that my private letter to the Chief Justice himself was not intended by me in any way .to j affect his judgment in any case ponding before the Court, but was only intended to; give him the earliest fair notice that I had demanded an inquiry. I used no threat that I would demand an inquiry, but informed him of the fact that Iliad already done so. :i,-. ■ (.1 , >!•

His Honor: No doubt the writing ■; of that letter was very improper conduct; -'it was just as proper to send a letter to’the Colonial Secretary or any other Minister.

/. Mr. Barton ; I mentioned this circumstance inimy affidavit because from the fraine of the reports jin the Press I believe the public are under the impression that I: sent your Honor an anonymous letter., I ihaye now to read to your Honor the affidavit of William Bassett, of the Hutt.. [This affidavit gave Bassett’s impression of the facts of the occurrence on*' Tuesday, which was that his Honor's conduct was offensive to Mn' Barton.] These, may it pleasure your Honor, are the affidavits which I have been able to have sworn to by various persons in the short time I have bad at my disposal. His Honor : All I can say with regard to that last affidavit is, that it would have been more appropriate if the question was ais to whether the fact that you had kept the Court waiting for several minutes was a venial offence, even though you had Omitted to’rise and express your regret for doing so. But that is not' the subject of inquiry here to-day. As I have stated over and over again, it is as to whether the letter written by you was of an offensive description. ' Mr. Barton: Your Honor, the inquiry here to-day, as I stated in my argument yesterday, is partly as to the intention of the writer and his state of mind when writing that letter. His Honor 1 1 do not agree that his state of mind has much to do with the question, except' in reference to a mitigation of the punishment for the offence of coritefnpt. I am quite willing to hear you on that point, Mr. Barton. If a person commits a gross contempt of a Court of Justice, then his state of mind at the time is not very material, except for the purpose I have mentioned, Mr. Barton : I am not for one moment asking the Court to mitigate the punishment for my offence. I am ready to take the punishment for my offence, whatever it may be. His Honor : I quite understand the position you occupy, Mr. Barton. Mr. Barton ; I am not afraid to'do so, and am; always willing to obey, the laws of my country In eVery possible respect. I assert, your H6n'6r, in my own defence, that I have not been guilty, by word or deed,'of any dis- ■ respect to the Court in this matter ; that 1 (whether rightly or wrongly—as it seems to me, I acted rightly) complained,to the proper quarter ; and my complaint; being -a private communication, I thought I was bound in honor to let you know at once that I had done, so. If I am right in supposing that I was justified in taking such action—if your, Honor comes to the conclusion that there are circumstances in which counsel rday address a communication, either verbally or in writing, to a Judge, then the question •;will, resolve . itself into this—(l.)' Was my, communication intended to libel the Judge ? (2.) Was it intended to insult the Jud&e ?' ’(3;) Was it intended to cause the Judge to alter his judgment in the case pending before the Court? I submit that these are the' offiy three classes of possible contempt. ~ His Honor-: Your, apprehension of a Judge’s position ik, this, bo fair as I understand, that he .may adinimSfSr justice with he may be actuated by feelings, ,of .hostility .to. a particular side) not in one,case only, but generally, and yet to say that to him or .of him: is not to say anything insulting. Mr. ; B^top“ Of him,” your Honor. Honor : Of him, and to him. > . Miyfevtton is your Honor referring.to r the ■ letter- IWrote t o .the .Colonial Secretary ?; t < ■

———TV.;',.. rTTf /Ati.v*. V- -i- v-' His Honor: That'letter is not before the ;CBnfi?"hfiH;KHotb'eing'probeedefi'upon; - ’ - ' - ■'■ | Mr, Barton.j/Jf./ydnr Honor,wishes me to -read that-letter-I- shall do so.-; - : 1 His Honor ■:« You may-take what course you -think fit, Mr. Barton, so far. as it is within proper bounds. 1 !■-'(• a> - : 1 -- I Mr. Barton : Your Honor made reference to thedetter, and you should either givb ■ or deny me permission to read it, one way or. the other. ■ 1 His Honor; Mr. Bartonj 'you are rather in ithehabit of stating things' not" strictly as’they 'should’be stated. It was not I who commenced referring to the letter; when !, said a person “;may say of or to a Judge,’’’you 7 then asked me whether I was referring to the leiter written to the Colonial Secretary. • , - i Mr. Barton : When your Honor said that Jf ■ understood.that you were referring to. my,state-; meat to somebody else. ■ ■ i His Honor : L was not referring to that; I ;was simply referring to, the letter written,,to. -myself—of myself. ; ' Mr. Barton : What was said to your ; Honor; I respectfully submit, was . said with the,.view and, purpose, to .which I. have sworn, on my solemn oath;;; and. .!.' think your. Honor would have seen that that .was the", purpose, if ybu_ had not been so much excited by the receipt of that letter.: I 'Understand’ the position Xtb’ be i this—that itiis. conceded: to ime now! Ss' a’right to make a complaint in the propej quarter.j: » , His Honor: It is the right of every subject, Mr. Barton. ■ ; , i ~,

: Mr.. Barton: Just so, your-Honor. - I-claim no more'-than 'the right of a' British 1 subject; Tliafc being,'conceded to me, 1 then 'the' whole question resolves itself into this: have I a right to inform the Judge that I have taken that step; or, if. I shrink ! from taking the constitutional course and choose a private one, which must result in either one of two’ things; —that the Judge will lose his position on the bench, or I lose my position at the bar and must leave the country; the question then.is, whether ! am entitled to ask the only other persons, namely, one branch of the Legislature privately' instead of three branches of the Legislature publicly, to investigate thaimatter. Having taken the step I did, had I a right to acquaint the Judge with it at 1 bnce,Valid,iri respectful language, stating the fact that I had called for an inquiry, That is really the between us. I respectfully submit that'acj' cording to the authorities there is a marked distinction between stating to a Judge what ; has been done, and stating what a person intends to do. One, is a threat, and the other ; is simply a fair notice of a, fact. Witli reapecih to my right of complaint, your Honor, as I understand, concedes that I have the right to • complain to somebody. \ His Honor; No doubt you have, if you have, a ground of cbmplaint. . Mr. Barton; Of course; but that is not the question here. It is impossible that L ean argue' on, that point without evidence, and I must therefore abstain "from; it, unfortunately for me. The charge must publicly. <V ' His Honor : I cannot receive any state-, ments which could be . made otherwise than publicly, , . , !j . Mr. Barton : Your Honor no'. doul?t .has' seen a little publication by the late Lord St. Leonards, written just before his death. -I do. not possess a copy, hut have a recollection of part of the matter cohtainedin.it. That noble lord thought it necessary to write a little book because of some statements that reflected uppn, him in “Lord Campbell’s Lives of the. Chancellors,” and thought it necessary to describe what took placebetweenhimand a oertain Lord Chancellor in the ’ course of an unpleasantness between them in which Lord St. Leonards, it appeared, thought himself 1 insulted, or, was,' insulted—l cannot give the exactlanguage, because. I am quoting from he' describes an interview between himself and the Lord Chancellor in private, and' describes how he required and obtained from the Lerd' Chancellor an' apology. * I ask your Honor therefore what is the difference between' a private verbal communication’ between ‘ the counsel and the judge, and -jo-’ similar communication in writing. 'lf your Honor will refer to the book (you no doubt are acquainted; ;,witbit).you'will‘find'tbat the.disoussiom^vhicH 1 took, place , was ratber ap angry one ; and I respectfully submit thift if so great and learned, a counsel as Edward /Sugden, , Lord St.. Leonards, thought he was entitled to say (that ,'to ; . the .Lord. Chancellor of England, (surely it] is reasonable ,'thatl might make the mistakq of’thinking I had a rightto address (heVJpdgp privately and by letter, ’lf. I am mistaken, I will amply apologise at once. I , say at once, 1 your Honor, that if, after what, I hayo urged, you are still aggrieved-at that letter ,and that it was sent to insult you, I shall j express the most, humble regret,. and. in the ,pjost, humble terms in which I can- possibly .express itj not, however, with any sense-of-humilia-tion on my part, because I. shall not express that regret! thinking that your/ Hopor will’ mitigate the punishment E deserve. lam not beta craving mercy, or any thing of thatjkiftdI ’came here to defend the rights'of the Bar and suitors in my person. ■ : ' His Honor ; That is. your own view. Ido not know that your brother practitioners have ■' asked’you to defend them. . * 1 Mr. Barton : I never said that; but the honor of the Bar is tea certain extent in,the keeping of every • member of it. ■ ■ His' own sense of honor, 1 if delicate, will made him conscious that l any act on his part which derogates, from his r own honor i as'counsel will derogate to some ; extent from the honor of the whole Bar.' ‘And I feel that your* Honor will concede to me this —if your ;Honor * can possibly assume 1 for a moment, for argument’s sake, that I felt the right and 1 privileges of the bar were trenched upon, that a sense of honor would compel me to i stand up for those rights. I do'not ask; your Honor to agree with the premises) ,T ! . only ask you to agree with the conclusion. If,' after having heard my argument and the statement of facts which I have laicfbefqre you, and if, after exercising the utmost’ 6i?y6nr reasoning powers, and the calnlest 'ah'd 1 coolest judgment, you then come to the conclusion that I wrote that letter merely, for the purpose of insulting and,,offepding you, then, your. Honor, I am willing and ready to make the humblest of apologies. Independently of that,; if your Honor comes to the conclusion, after, what you have now heard; read, and stated by me, that I sent that letter as a threat to prevent your Honor from deciding the case of Te Puni properly——- , - i His Honor: I had no such idea; Mr. Barton. Mr. Barton : Your Honor misunderstands i me. I was going-to say that it would bo suicidal’ for counsel to write such a letter tb the Judge, who, as it turns out now, though I was not aware , of it at the time,, was'next morning to deliver sentence upon the prisoner. But I cannot believe, 'nor do I bfelievo/ that any letter from me or anyotie else would l have had the slightest affect upon ; your Honor in' the judgment which you thought it necessary to inflict; lam sure of that. The only third point remaining is, was- the letter a threat of any kind. , I ask your ' Honor's l careful attention ;to the * difference between two cases : on counsel informing a Judge he is about to do certain things which are, intended to affect the action of the Judge,; that is'a threat; but'if,'after having done those things, a person, ’ whether counsel or otherwise, simply informs the Judge that he has done so, then I respectfully submit' that it is impossible to call that a threat, for it is not a threat. Therefore, I repeat again, if your Honor thinks that letter was Intended tb insult you, I will apologise, though asking no mitigation of punishment. Your Honor, does not-think, as I understand, that, the letter was intended to affect your judgment.

His Honor : You must allow me to saythat I said. ;I did. not think you Wrote .that letter with ,any intention to' affect my judgment,'. That, ; is what I said. Nor. do; I believe; it; and I am; going now perhaps, as far as I have any right to ; go, when I- say, that I, never: entertained any other, belief thah that you did i not intend,,byithat letter to affeotmy judg'ment on the, case before the. Court.,' i.That is to, say, I gave you credit for sufficiennt common sense not to'suppose that anything you could jvrite, to me would affect my judgment in any case.,; i-. 1 ■■ ■ ;-.i Mr. Barton : I must ask your Honor to go further—ai’very • little further—and give' ine credit for a sufficient sense -of; honor not to attempt such a’-thing. ' ' * “

His Honor : _J ) have.said,,Hr !l ßfir.tqg to l,bej, lieve-you -had no design; whatever in writing' that letter with Preference --'to-affecting my judgment., ' ""V. "“.Vu ( 7rr ( Mr: Barton : Your. Honor has. been, person-, ally acquainted jwith me for .a 'great many' years, and I- submit that nothing I haveSsaid or done in'your Honor’s presence justifies you in making the statement you have. jdst. made, at the same time carefu !ly'excepting from it thafl have any sense of honor) ! His* Honor': You.are under', a wrong impression. What is it you suppose Lsaid? ; : Mr. '* Barton : I am under. no wropg impression. r * His Honor ; Mr: Barton, may I ask you to state what you suppose I said, and-’ that you, are objecting to V , \ j Mr., Barton - : : T will, your Honor. I sjiip.-,, pose you' to have stated this, that anything',! could do or say would not affect your judg; ment. I, am incapable of attempting to influence your Honor, but your Honor does not by any means'say, so. On the contrary, your words seem to imply that I would,bo* capable of such an act., ..'

! His Honor,: If you ask) me to give- you'a good character at the Bar—— . ; Mr. Barton ; I do not.

; His Honor:: ! have' not said anything that justifies the opinion ‘ you' have formed. If you' ask me to say anything about your honor, ,and I Ido not at once'respond,) yoiijhave no reason’ to assume that I am fefibpting on your,honor. /t- ---; : Mr. Barton :I, dxd ? n<it ”asK you to express any opinion'as to I simply said' that if you could nbt c6m‘e to‘certain conclu:; sioni -after the statements-, .laid. before,,, yqqr j Honqfj'* that. .1: woqid/apologise ; ;t,hat, :; if I your Honor. camo i f;q ! Cie r l ;a i ll ; ,other, conqlu-. signs : that 'my case came (within the,Law, and that I had no outlet, , , I.was attempting to put: this to the Court,,whemyour;Honor changed, the subject. I was leading, up to this, when, your Honor deliberately interrupted me before I had concluded.’ .’ ' ’

iHis Hqnqr ,: Mr. Barton, you are now com-; mitting as gross a contempt of Court as is possib(e to, commit. You are imputing to, the Judge who sits here, cpnduct .which, if he were guilty-pf it, would render it neoesaary that.he should, be removed from the Bench. vv , MrV Barton : not iu any, w,ay, desirous of imputing improper^oqduct.to the Court, .1 acknowledged yesterday,jthat: yo,ur Honor was, in a perfectly cool frame of mind. , ; : '.-Hiß, Honor You have imputed that lam ,now in the conduct ~of . this case actuated by, .'imme desire to do you an,ill turn. .. • ;Mr.“ Barton : If ; - your Honor thinks that, I at once state that I had no intention to con\Toy such an impression by:any words,! haye given utterance to. ~. . His Honor.Vl can only judge by language and .conduct, Mir. Barton,, ~7',;■ • ■:

Mr. Barton V, precisely,what’ i judge by, your Honor ; and . when l felt ~a few miuut es ago' that my honor had been touched, ;your Honor will pardon me if I judged also-by ;the form of language your Honor used. , , , , . : ; His Honor : 1; Jiaye'i^^stated.xthoti;! do not think you had any intention to bias .my judgment in the 1 ijUatter, before' me) and as I have said I gave .you credit for too much common sense to suppose that, you could bias it, and you then asked .'me-to go one! step further and .say that -yoift had no intention except such as 'was consistent with jhur (personal honor. , >.,>■■■ . ; Mr, Baitpnj In that respect, yes, your Honor,'

[His Honor a. Just so'; add to that I madeno response, nor. was I' bound to make any response.; . '

[Mr.- Barton t M regret that; your Honor should leave.the!.matter in that way. - But I shall offer no. further observations in respect to it; ; I will leaVer, .the? fact's of the case beforethe Court, and address myself to' the law. The first proposition!;-! ask your ‘Honor to direct your mind to is this, that the Bar have clear and: defined rights up to a certain point. That is to say,when the .Bench ,trenches, upon the rights of the Bai?;the .Bar* have a right by law to require thenßedchnot to overstep the line, just l as; well .as the {Bench have; a: right-to compelthe Bar to withdraw! thbir-footsteps from-the 1 line if the latter fhahe .{overstepped the limit - i allowed.- them.,. i It..'is . absolutely mecessary to .my case that lishouid- endeavor l to .’show your' Rpnor where -thdt.line; is;.anff the' whole l question will : resolve ’dtself irinto'-this—^whether 1 ‘ have overstepped, the? line. " Now, your Honor,'; for that, purposei'itoifl'inecfessary that I should’ very shortly i call v your'- Honor's attention to 1 ; the .rights and privileges of the!Bar, arid'its .present • coriditiori),Always your Honor - toibear this .iniViriinid, that, the' rights claimed' by the Bar ato. riot personal- rights, l but' ! the' rights of suitors—the f public- and the fcoriritfyv Ini “ Campbell’s Lives !of the Chancellors,’’ 1 1shall be able- to l point’ out to your) Hcfrior tw.o most {remarkable l instances in which that! line, was being gradually- fixed; and 1 will then’ call ' attention: to - .tile! most riiodem; bate iri ; which that ffnq; was.-marked betwheri-'a^Fuil '■ ! Court arid memhers-of the Bar.' Erithe early day a jt,ia.a question whether the Bar 1 had any rights at all. I will call your Honor’s:,atteri: , tion l to' circumstances which* show that they probably had no rights, or very little 'at 1 any rate.-: - [Mr.'- Barton then ’Lord 1 “Campbell’s Lives of the Chancellors,”,draw-’: ing special atterition’to’ Lord Ethkme’a defence ’ b£ .the rights of-the vgltittie'S,’p. 414; ' imp. the! author’s,-remarks therefth)-'as ’seeming . to apply.to the,present case.] ’’4* 1 1 11 i; ' J IS His Honor : I bah see 1 he'tween the cases;, - r Mr. Barton*: It is a ngatter, s of bpinibri,' then) your Honor, and,l bow tp'jthe |Cpurt., J.have now to call your Honoris attention to case w hich took place in one pf Counts,, in Ireland, iri the. year 1869,1.: It xyas a con-, tempt case. It was a famous, case, ypur llpripr, because it was ’ an 1 immense struggle bptwpen', the Irish Bench and the attorneys, who' pltitoately passbd Pertain resolutions. ; His Honor :, Have ypu jjny report pf it,?,V ... Mr. Barton:) None, your Hoibr, except that published in the Weekly' Ffeman.'s 1 Journal ,o£ April ,24, May J, and May'2.,| ( Thia, ppae has been cited by me iri’the Supreme, Clpurt, befpre. Mr. Justice Warp,. ,in, rpgprd to'a contempt case iri which I was engaged in Dunedin. The case is of. such imipense lepgth that ! cannot pretend to ‘ take up your Honor’s time in Court by reading it. .. 1 His Honor: My Jime is entirely at the disposal of the, .first’ matter; heforp you, ) Mr. Barton. Xhave no desire to check you as to -time. • -! ...... , ■

i Mr. Barton then, proceeded,. to explain; the nature of . the casf of iMr; J,ame? Barry, who was called.heforo. the. Judges in the .Court of Common Pleas, to answer for certain observations made by him at Youghal on the 13 th of April, ,1869.7 m relation-to the decision of; the Court of Cbmmoa -Pleas on the, Youghal election petition, his' counsel being Mr. Butt, Q.C.j'who' ; ,w£vs.. .late ..on entering ,Oqprtj bpt apologisedj' apdypn. mahmg application)for,an acljournment ,bf the case,'it was granted to, him.,' Ho, quoted from a. later date of the same papOT.'ppnt'aiiiihg a,'report ,pt the pro-, ceedings inßwry’Bcase,andpoiuted out a paa-, ’sage in the j of Lord Chief Justice Monahan tptho effect that “.Mr. Barry,should not Kayo, b?^n,, ordered by the Court to make any affidavit in relation to the, publication hr question.’,! The publication referred to ■ w.as the Oqrts-fiseamtoter* which contained a.lreport of Mr. Barry's,,speech at a public meeting at 1 Youghal; Mr. Barton ,theni quoted;frour a. continuation .of the report of the proceedings - in the, same ,'Cose, to show that the contempt was not, “professional” ;misconduct on; thepart of Barry, according to the learned counsel Mr. Butt, and he (Mr. Barton) contended that the’present proceeding could not affect him professionally—that is [to say, that it 'should l not affect his position as a barrister. His Honor : I am of a. contrary- opinion, Mr.. Barton.. , Mr. Barton': X had better give your Honor authorities.' I '' ‘ , His Honor : So far' as , I know, the later authorities are : the other-way. The’ case of Wallace(Law Journal, 36-38) seems to be quite the other way. ■ 1 Mr, Barton :-I - shall ask your Honor for your authorities. ,i • -ri ■ ,'tj His Honor,: 1 shall have no objection to supply-you- -with -them,- Mr.- Barton; ; .You assume that if J the' l Court should arrive at the' conclusion that ’this 'letter, was a ’contempt of Court,' it has; no; 1 powcr to deprive 'you'jpf a: portion of your position at the Bar, ; :: ‘ l n '"' ■y“

mfent on that pomt.' . 1 Mr. Barton f’^wilßread'first'lrom 1 - I 'Starkie lac'e.—lf a cblomaiCourt iiijadjudicaiihg iipdri ; a- contempt, substitute' an | inappropriate mode of punishment ‘ |br * the,' offence, the order will' be set aside on appeal to. the judicial.Commit.teC of Privy CbuncU in England. As'in a case Vliere ( an order .Was' |inade! for suspending an 'attorhey and barrister' bf the Supreme Court of Nova Scotia from practising in that Court, for having, addressed a' letter to the Chief 'Justice' reflecting on the Judges and the administrationof justice in thatEourt; . oh.'appeal. ;to the judicial Committee,of Briyy /Council, ■the.order ,was ( discharged, on the ground that it substituted a penalty and, mode of punishment i which' were not appropriate and, fitting for the pffence. • The letter, although a contempt of i poprt; and ■ punishable by, fine and imprison,, ' merit, .was .written by the appellant in his. ifidividual and private capacity „as a sgitor in, respect of a supposed'grievance,,and had no ‘’connection with hisjprofessiopal,character. It ,w;as, therefore, not competent for the Supreme .Court to do more than award the. customary punishment for. contempt of Court.” --1 - respectfully submit; your Honor, that ' that is. what'.L have' done. ' If it is agreed first that I have, committed the- offence, I have -simply - Committed that offence, and; should be;subject only ,tp . the appropriate!punishment- for that. jHis.Honor : My opinion is not formed upon, this mutter ; but,-as I have said, lam desirous of hearing...argument- to show that in suoh a case as this, ,'where a contempt of Court has "been committed, the punishment should not be ; the -deprivation of- the practitioner’s; position ;for. a' certain period to be determined bn. I believe there is authority to show-that the law isithe other way. , , r - ■ Mr. Barton : But of -course the Slater case .will be the' law of the land.

'His Honor: That case, I -assume'that you refer to the case of . Wallace, is against you. It draws ; a distinction between -what is ; dpne as a suitor and \Vhat is done.asiiai barrister in his professional character, il. don!t see how you can argue that what is, done’here to-day - is not done in your professional character. : | Mr. Barton ; I; contend that it cannot'be said that I am guilty of contempt in my character of barrister, because I was a barrister at the time I wrote a private letter, referring to no Case in Court.

7 His Honor: You are not strictly accurate there.' You referred to conduct in Court,; and to my conduct as Judge in a case in.; which you wore interested as a professional man.; ! Mr. Barton : We have nothing to do with! that at all, as your Honor has already stated.; jHis Honor : I was drawing yoitr,attention: to the fact-that the letter is one which must have passed between you as barrister and myself as Judge. For myself, I (hope the authorities are as I believe them -to be—l .believe that they ought; to 7 be, if .they are; not—that the deprivation of the ,poy.‘er to apt in a professional capacity with regard to barristers or solicitors, should be appropriate punishment, for contempt, and not imprisonment or fine. . : ' :

iMr. Barton proceeded to refer to Mr. Barry’s case, pointing but that the Judges’ were of opinion that Mr., Barry should not have been ordered to make ah affidavit,'and that they therefore discharged the orders made by the Court of Common Pleas. ‘ 1 IHis Honor : That would seem the most •reasonable thing to do. ' ' 'Mr. Barton’: I have had to file an affidavit in this case.

. 'His Honor : I have already said I can see no similarity in the cases. ! Mr. Barton ; And if the case comes before the CoUrt-of Appeal I shall rely upon that as. bne'bf th'e grounds of argument in my favor. I shall be prepared with a shorthand report of all that has taken place in this Court, and trust that your Honor \yill find,it,perfectly accurate jHis ,Hohor : I have said over and over again. j|r. Barton, that you' have not' been to make an affidavit, and : should hot go upon 'the affidavit you have (filed, except for the pur- ; pose of enabling you; to make an explanation of 'something that occurred ‘on - Tuesday morning 'last, which might lead to a mitigation of the punishment for your offence. The .contempt 'of Court was proved by the affidavit of Mr. ! ’Y(ilmer alone, as you well know, Mr. Barton, arid that" case you mention .has rio application whatever. ' '• • ' |Mr..Barton : When your Honor pleases to, ! sa|y,J Jvell know certain things,” I,think it is ’useless for me to proceed further., 1 His Honor ; You ought to know. jMr. Barton : I think, your HOrior, it is time ;I should conclude my address to the Court, and Irriust ask your Honor if you do not think yo|ur state 61 mind is in that condition which..renders it necessary, that I should stop?.... His Honor : Now you see, Mr.,Barton, you ’are doing what I.have .already warned, you agfdust. You are’ imputing that the Judge is riot conducting himself as he ought to do. , [fir. Bprton :;! •am imputing nothing, your Honor. I was simply stating what I believed tojbe correctj.jandjthp, proper, course to pursue., r ■ His Honor :‘No doubt it is natural that at themomentia person,conceives hiriiself to be insulted He'should feel agrieved thereat;/ it is riot in human nature to feel otherwise. But I rimst say now that I am.entirely, disembarrassed of 'any such feeling; and am perfectly calm. Mr. Barton ;! Then,' yOur! HOnor; without expressing any reason, why'l thinkfit right I should say no more, I respectfully close my observations. , !

■, His Honor* All I can say is that if you dejure to make any further observations, or ad]6Um the Court for that purpose, I am most anxious to give you that opportunity. Mr. Barton : I shall ask for no adjournment, your Honor. It is quite essential that for the purpose of arguing before the Court I should keep my mind perfectly calm, and-if anything be stated which causes anger or indignation to rush through my veins, it prevents me performing the task to which I have set myself.' • ; i His Honor : It is very much to be regretted that you did not avail yourself of what must have been at your disposal, namely, the sef-’ vices of one of your Iprofessional brethren to advocate your course. ' Mr. Barton: It was impossible that_ my professional brethren could do that which I had a sense in my own mind it was necessary I should do in this case. I acknowledge the eminence of Mr. Travers, and the'great ability of Mr. Buckley, and I acknowledge thaitherearein this townsome very eminent lawyers. My friends Mr. Stout and Mr. Bees are men of the highest eminence, as high as any’men who’ have ever the Bench in this country'; but I acknowledge this also, your Honor, ' that I feel .that this is a’matter of my personal honor, and :the course which I at first determined to take was a course which ho counsel on my behalf,, could, possibly take for. me.! I must take it. myself, therefore. Xhave endeavored in every. : way ,to make;the argument as impersonal as possjble, i andc I' feel ,l! hive been successful in making my remarks entirely respectful.. ' But, I, do not feel any longer in the frame of mind to 1 take- that course, and I must -ask your Honor's permission to sit down, merely stating that I am ready to receive the judgment of the Court whatever it may be. . His Honor : You do not'desire any adjournment for the purpose of argument. ‘ ■ 1 ■ ‘ Mr. Barton : No, your Honor. :; His Honor :' Then -1 reserve ray judgment in this matter until Friday next, at 10 o’clock, at which timefMr. Barton is" ordered to attend. BEIjK V. THE EMIGRANTS AND COLONISTS AID

COKPOBATION (LIMITED). .. . This jyas.a demurrer by ; ( the defendants^ to the plaintiffs 'declaration,, The, declaration set out that the plaintiff (with others) had been induced to-emigrate to New Zealand by' the defendants, for the purpose of forming a special settlement at Manawatu ; that in pursuanceof aparol agreement between the plaintiff and the defendants, the plaintiff’entered upon the posssesion of a piece of land at Feilding, which by the terms of the agreement the -plaintiff was entitled to purchase at a: fixed sum within seven years fx-pna the date of, his, entry ; that the defendants a,few months 'after' sold the land, the -subject of the agreement,' to a third person, in contravention, of the-agree-ment, : and deprived the plaintiff of the benefit' of it. The plaintiff claimed'damages for-the breach of the agreement by the defendants.,

the main ground of demurrer being that the agreement was not in required by the Staluto'of TVauds.;

j Mr. Quick' appeared, in support of the demurrer ; Mr. T. Hutchison in support of the declaration. , ,

! Mr. Quick contended that'the absence of an agreement pot expressed to . be in writing was fatal to the sufficiency of the declaration, which claimed damages upon an agreement taken out of the Statute, of Frauds by .acts of part .performance, and’ did not seek for specific performance. , ‘ ",

It was argued by Mr.' Hutchison that the declaration was one framed as for specific purposes of the agreement, and that, consequently, admitting there to be no writings it was still good ; that in contracts for the sale of land, part performance as Here; made all the difference, and that upon pnnciple—for ho ..express decision on the point could' be cited'— the plaintiff was, entitled to recover damages for breach of contract, especially since it appeared upon the face of the declaration that specific performance could not be granted; that, at any rate, the' agreement was'executed and came within the rule that even corporations are bound by their parol agreements within the scope of their business, when the consideration for them has been executed.

Mr. Quick was heard in reply, and the Court reserved its- judgment. 1 :The Court then, adjourned tilldFriday,at 10 a.m. ; “