MR. BARTON’S PETITION.

New Zealand Times, Volume XXXII, Issue 5116, 16 August 1877, Page 3

MR. BARTON’S PETITION.

The following is a copy of Mr. Barton’s petition, complaining of the conduct of their Honors the Chief Justice and Mr. Justice Richmond: — To the Hon. the Speaker and the House of Representatives in Parliament assembled. The humble petition of George Elliott Barton, Esq., barriater-at-law, showeth as follows: — 1. Your petitioner is a member of the -New Zealand Bar, and in or about the month of May, 1876, commenced the practice of his profession in the city of Wellington, in partnership, with Henry. Samuel Fitzherbert, who is also a member of the said Bar. 2. In the month of October, 1876, your petitioner, in a letter to the Hon. the Colonial Secretary, made certain charges against his Honor James Prendergast, Esq., Chief Justice of New Zealand, who was then sole Judge of the Supreme Court, presiding in the Wellington District. 3. After the making of the said charges, your petitioner was called upon to answer before the said Chief Justice for an alleged contempt in sending to the said Chief Justice a letter informing him that your petitioner had made such charges, and had demanded a Government enquiry; but, after argument, your petitioner was discharged of the said alleged contempt. 4. Immediately after such discharge' your petitioner was induced by mutual friends of your petitioner and of the . said Chief Justice to withdraw the charges so made by your petitioner, and your petitioner was so induced by means of certain representations to the effect, that upon such withdrawal, your petitioner should henceforth have no just cause of complaint, which representations your petitioner was then under the belief amounted to engagements on the fulfilment of which your petitioner could rely. 5. In the correspondence between your petitioner and the Hon. the Colonial Secretary on the subject of the said charges so made as aforesaid by your petitioner, the Government laid it down as a principle that the complaints of a practitioner against a Judge of the Supremo Court for alleged partiality and exceptional treatment of such practitioner and of his clients could not be entertained by the Government, the conduct of the Judge towards practitioners in his Court being in the opinion of the Government mere “routine” of the Court, and that they, the Government, had no authority “ to interfere in any way with the discretion of the Chief Justice in conducting the business of the Supreme Court.” , 6. The principle thus laid down by the Government In the said correspondence, coupled with the fact that the Ward-Chapman parliamentary enqniry had proved entirely abortive, caused the Judges, in your petitioner’s belief, to feel that they were practically beyond control. After the closing of the said correspondence and the withdrawal of the above-men-tioned charges by your petitioner as aforesaid, your petitioner found himself exceptionally treated by the Judges just as before, and found also- that endeavors were made to cause your petitioner to he looked upon as a person to whom insults might he offered, and upon whom jmputations might be cast in Court with impunity, not only without rebuke, but with a consciousness that such insults and imputations were not displeasing to the presiding Judge; and your petitioner, especially after the arrival in New Zealand of Mr. Justice Rich.mond and his appointment to the Wellington

district, found himself frequently made the subject of sneers and disparaging remarks, calculated, gradually -to sap the reputation of your petitioner alike for honesty and ability. Your petitioner also found that he was excluded , from participation in the ordinary courtesies extended by the Bench to the Bar, and that the Judges so acted that it became apparent to the Press and the public that your petitioner was a person to whom it was unsafe to entrust Supreme Court business; and your petitioner says that, in consequence of such imputations, he was assailed in _ newspaper articles, charging’ him with bringing into Court causfes which ought never to have been brought there, and severely commenting on your petitioner's supposed professional misconduct. ' , ;

- 8. Although your petitioner found himself so treated, he feared to openly repel such insults and imputations, or to make any vigorous effort in self-defence, finding that whenever he attempted to do so the reputation of being pertinacious or quarrelsome was immediately fastened upon him; but your petitioner on one occasion did complain in his address' to the jury of the insinuations made against him by the Judge who was trying the case, and endeavored to repel the same by expressing his indignation at the manner in ■ which he was being treated. - . 9. In consequence, as your petitioner believes, of the aforesaid treatment of your petitioner; he found that many persons had become impressed with the belief that your petitioner could not succeed before the said Judges in arguments in the Supreme Court, however clear the merits thereof might appear.’ 10. In the course of your petitioner’s practice in Judge’s chambers, your petitioner has invariably found that in cases where the question of costs lay in the discretion of the Judge, your petitioner’s clients were, if unsuccessful, compelled to pay costs; while, on the other hand, if successful, costs were almost always, if not uniformly, refused, and your petitioner is unable to remember any instance in which they granted costs in chambers to him. 11. Your petitioner has for some time past been so conscious of the fact that the said Judges dealt with cases in his hands in a more exacting manner than with those of other practitioners, that in a recent instance, before accepting business in which the interests at stake are large, and principally hinge on the impartial decision of delicate legal questions, he felt bound to warn his intending clients that they must expect the Court to deal more harshly and exactingly with their case than if it were in other hands. 12. The immediate cause which has induced your petitioner to seek relief from your honorable House will now be related in the same language as your petitioner used when relating i the same to the Hon. the Colonial Secretary, in a letter of complaint recently sent to him by'your petitioner. 13. ‘At the Supreme Court sitting, recently held, the trial of the case Cole v. McKirdy took place before a special jury, consisting for the most part of bankers and leading merchants. ■ The jury found in favor of the plaintiff, and gave him a verdict for the sum of £255 14s. 9d.—a sum which they, made up of two items, one being for his work and labor as brickmaker amounting to £lO5 14s. 9d., and the other being for the wrongful appropriation by the defendant of plaintiff’s property, amounting to £156. In the course of the trial it was acknowledged by the plaintiff that be had received certain payments on account from defendant, and, among others, a payment of £2o'ss. 3d., which the defendant on his part endeavored to prove was made by him as a part payment on. account of a contract between him and the plaintiff for the sale to defendant of the property in question. The mere fact of this payment was not in dispute between the parties. The jury, when giving their verdict, of course found that such payment had been made, but they ignored the existence of the contract to which the defendant desired to attribute the payment in question. ; : Such being the facts, defendant’s solicitors applied to my firm, as plaintiff’s solicitors, to allow this sum of £2O ss. 3d. to be deducted from the total finding of the jury, on the ground that the jury had intended such deduction to be made. We refused their application,, on the ground that it "was perfectly plain that the jury never intended any thing of the kind, jit not being reasonable to suppose that twelve special jurymen, principally composed of bankers and leading merchants, would have stultified themselves by assessing a sum to be paid by defendant to plaintiff without intending that such sum was to be a final settlement of all items in- dispute in the action. On our refusal the defendant took out a summons before the Judge to compel us to allow the deduction to be made. We resisted that summons, on this ground that the verdict being for £255 145.9d., neither the Judge nor anybody, else had a right to alter it. It is of the conduct of the Chief Justice on this occasion (which conduct lam now about to relate) that I make' com: plaint, as being, unfair and improper towards my firm. When dismissing . the summons as one on which he had no power to make an order in defendant’s favor, his Honor thought proper to make a statement to the following effect :—That the plaintiff, though not in law compellable to do so, ought in “ common honesty” to have allowed this deduction of £2O 6s. 3d. from the finding of the jury, and his Honor then made the extraordinary recommendation that the defendant should take proceedings in the Resident Magistrate’s Court to recover the amount. His Honor further stated that, though compelled to dismiss the defendant’s application to enforce such deduction, he would not allow to plaintiff’s solicitors the costs they had been put to. Thus it will be seen that his Honor publicly before the profession charged the plaintiff’s solicitors (for the charges against the plaintiff were really charges against the solicitors) with want of “common honesty” in ' resisting the application to reduce the verdict, and further marked his disapproval by refusing the ordinary costs' allowed on dismissing a summons. lam given to understand by the defendant’s solicitor that, m accordance with his Honor’s invitation to them to do so, the defendant • will proceed in the Magistrate’s Court to enforce the deduction. ,

Ever since the occasion of my contest with the Chief Justice teq months ago, and especially since Mr. Justice Richmond became associated with him on .the Bench, my firm and myself, on every occasion when it was possible, have been publicly made the subject of unjust attacks like the present. We have been compelled to endure such attacks in silence, because Parliament was not sitting, and because your Government have announced that you will treat such matters as mereroutine ” of the Court. That the attack 1 of which I complain is.morally as well as legally unjustifiable and grossly improper I will now proceed to show. After my clerk had reported to me what had taken place in chambers, I forthwith called upon some of the gentlemen of the jury, tq ascertain from them whether there was any ground for pretending that, when the ju. - y returned into Court the verdict for £255 14s. 9d., they intended it to be reduced by the sura of £2O 5». 3d. Mr. A. Jackson, manager of the Union Bank, to whom I first applied, informed me that Mr. Morrow (the foreman of the jury, and who is on Inspector of the Bank of Australasia) and Mr. Capper (of Messrs. Turnbull and Co.), were persons who, in the jury-room, had carefully gone over all the accounts between the parties, and that either of those gentlemen could tell me with certainty whether the sum found by the jury to be payable by the defendant to the plaintiff was or was not intended to be clear of all deductions, ■ From him I went to the Bank of Australasia, and found'that Mr. Morrow; is now absent in Christchurch. I then went to Turnbull and Co.’s, and saw Mr. Capper, who informed me that the jury had takefi into account all the cross items, including this item of £2O ss. 3d., between the parties, and that the sum of £255 14s. t)d. was intended to be clear of all deductions whatsoever. I then called on Mr. Thomas Mason, of the Lower Hutt, and he confirmed the above statement made. by Mr. Capper, thus entirely bearing out the honesty of the opposition made by my firm to the reduction demanded. Although I took this trouble of ascertaining from some of the jurymen what had actually taken place in the jury-room, every lawyer

(including the Chief Justice himself) mpst know that no person has" any right to go behind the verdict of a jury pronounced m Court,'and that even an affidavit produced by either party from one of the jurymen questioning the ‘ correctness of the verdict could not- be received as evidence against their open finding. After the jury have left the box it is contrary to all the principles of English law to allow any tampering with their verdict, or any reduction of what the jury awarded ; and yet a Supreme Court Judge—the natural guardian of the law recommended these parties to go to an inferior Court to try and get the magistrate to give them what he dared not grant. : 1 If i the defendant had applied for a new trial on the ground that the verdict was against the weight of evidence as to this £2O ss. 3d,, the Court might have granted a new trial, unless plaintiff’s solicitors consented to reduce the verdict by that amount; but no such application was made, nor did the Chief Justice suggest such-a course, well knowing that the weight of evidence was the other way. I have, the honor to enclose the statement of the, conducting,clerk "of our firm, to me on returning from chambers this morning. I may state that ho is a gentleman newly arrived.in Wellington, and this was the first occasion of his appearing before either of the Judges. . / MR. BARUATT’S STATEMENT. , Wellington, August 3, 1877. G. E. Barton, Esq.—Dear Sir,—This morning I attended the summons in Cole v. McKirdy before his Honor the Chief Justice in chambers, and found the defond&nfc had only filed an affidavit by his solicitor s managing clerk, referring to their letter requesting us to make the deduction from the Verdict and our reply declining to do so, and the statement of the Registrar that he would allow judgment for the full, £255 14s. 9d. There was no evidence of any kind before his Honor as to whether the defendant had any legal or moral claim for the £2O ss. 3d., or as to whether the jury had or had not included it in their verdict. His Honor discussed fully with the defendant’s counsel what had taken place at the trial on the merits of the case. He said he could not deduct the £2O SS. 3d., but the defendant should bring an action to recover it in the Resident Magistrate’s Court. . .I. then applied for costs for the plaintiff on the ground that the defendant had compelled us to appear to a summons which he should never have taken out, as he ought to have known he could not succeed in it, i and that the usual practice at common law was always to allow costs under such circumstances. His Honor then said: Defendant’s application is refused, but I shall not allow costs. I suppose you . will say next that there is no such thing as common honesty or morality. - I understood this statement of his Honor, when coupled with the tone and manner of its delivery, to be a charge against me of being a party to a wilful attempt to use the law for the purpose of evading payment of an honest claim, and that he was visiting such conduct by not allowing the plaintiff's costs. . In the whole course of my. appearing in chambers elsewhere I have never been charged with lending myself to such transactions, and I felt myself in a very false position when, as a perfect stranger in Wellington, and on my first appearance in chambers there, I had an imputation cast upon me, and was practically snubbed in the presence of other professional men. I now lay the matter. before you.— Yours truly, James Barratt. P.S.—I wish to add that whilst before his Honor I never referred to the merits of the,case in any way, they were then, and are now, totally unknown to me, : and If there has been any misconduct in the case I am guiltless of it, and I think I ought not to be under any. imputation from the Chief Justice, or so : inj*ured fn the estimation of the Judges that I shall find them suspicious of me when In practice for mysolf. 14. 'Your petitioner verily believes that a combination exists between the said Judges of the Supreme Court to drive your petitioner from practice at the Bar, and your petitioner is strengthened in such belief by their habitualwant of* courtesy to him, and by the fact that facilities .are afforded to his competitors and communication held with them that are denied to him. : Your petitioner therefore humbly prays—l. That your honorable House will in committee of the whole House inquire into the truth of the allegations hereinbefore set forth. 2. That if on such inquiry it be found that'justice has not been administered impartially and without fear, favor, or affection in the Supreme Court at Wellington, in any of the respects hereinbefore set forth, then that your honorableHouse may present an address to his Excellency the Governor, praying that the Chief Justice, James Prendergast, ’ Esq., and Mr. Justice Christopher William Richmond may be removed from the' Bench of New Zealand. And your petitioner will ever pray, &c., George Elliott Barton. -