SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5308, 30 March 1878, Page 2

SUPREME COURT.—IN BANCO.

Friday, March 29. (Before Mr. Justice Richmond.) COLQUHOUN AND ANOTHER V. HOUGHTON AND ANOTHER. This was a suit by the plaintiffs, infants, by their next friend, Peter Campbell, against the trustee of the will of their late father, for accounts, &c. The accounts having been taken, the plaintiffs took no further proceedings, and Mr. Bell now moved, on behalf of the defendants, that the bill should be dismissed, with costs against the next friend. He explained that be had been authorised by Mr. Buckley, the solicitor for the plaintiffs, to state that he consented to the decree.—The decree was granted. JOSEPH AND OTHERS V. PETERS. Mr. Barton appeared to make an ex parte application in this case, and moved for a rule to show cause as to why there should not be an arrest of judgment on the following grounds ; 1. That as shown in plaintiff’s declaration, the demand made for payment under the bill of sale exceeded the amount actually due. 2. That the declaration did not cover the lapse of a reasonable time for payment of the demand. 3. That there was no evidence at the trial of what was due under the covenant in the bill of sale. . 4. That there was no evidence at the trial of the goods sold and delivered and money lent and.paid to and on account of defendant. 5. That evidence was improperly admitted at the trial of two sums of £9l ss. 4d. and £2B 10s. 10d., received by the plaintiffs since the commencement of the action on account of the defendant. 6. That his Honor the Judge had misdirected the jury by referring to a Dutch auction, and by not directing them that interest and commission could not be allowed ; and that notice requiring payment, as required by the Con-, veyancing Ordinance, should have been given, before the commencement of the action. Mr. Barton argued at great length upon the points he had raised, commenting very fully upon the point of .misdirection, and citing authorities in support of his contentions. His Honor requested Mr. Barton to put the grounds of his argument in writing. He had raised so many points that things were getting complicated. , - -- Mr. Barton desired to put in some notes, taken by his clerk, of his Honor’s direction to the jury. His Honor was not aware whether Judges could take cognizance of lawyers clerks’ notes.

Mr. Barton would be quite willing that his clerk should make an affidavit before a magistrate as to the correctness of the notes. The jury were not likely to understand his Honor’s intention when speaking of a Dutch auction in his direction to them. ■

His Honor: I shall report what my charge was to the Chief Justice, and if he shall be of opinion that it was one that the jury might possibly have misunderstood, and deem it a ground for a new trial, I would be very unlikely to oppose it. After, further argument, His Honor was of opinion that the rule might be granted, and asked when it should be made returnable ? .

Mr. Barton : If the parties on the other side choose to make the rule returnable this day thirty years they were entitled to do it. I submit the proper and ordinary practice is to make it returnable in four days.

His Honor : I cannot take the practice of England if it is not the practice here.

Mr. Barton : I want to be cautious that I shall not be lending myself to this thing, because I shall complain of the conduct of the opposite parties, who have abused the process of the Court.

His Honor : I must act according to what the practice is. (Addressing the Registrar). Is it the practice, Mr. Allan, for a rule to be made returnable in four days when there is no chance of the Court .sitting ? ... . Mr. Allan replied in the negative. Mr. Barton: I can only say that I will show numerous instances of it. , His Honor: I must take the statement of the Registrar as to the practice of the Court.

Mr. Barton ; I submit this is the only place in which it is done. His Honor : This is the senior district. I was in Dunedin many years, and I think it was the practice there. Mr. Barton : If your Honor sends down' to Dunedin you will find it is universal td fix four days. g His Honor ; I should be glad to see the practice of the Court rendered uniform. I must act upon the statement of the Registrar as to what the ordinary practice is. It cannot hurt you. Mr. Barton : It does hurt me, and I intend to show the practice is abnormal. The rule was ; then granted on all the grounds raised by Mr. Barton, and made returnable for the 9th of April. The application to stay proceedings was refused. JOSEPH AND-ANOTHER V. PETERS. This was a motion for a rule nisi to set aside the taxation of costs in this cause. Mr. Travers : Your Honor, I propose to appear in this in the first instance. Mr. Barton : Of course he does so, your Honor, without costs, if he succeeds. If he wants to appear with the - right to claim costa in the event of his success, I respectfully object, so I ask the learned counsel to state whether he intends to claim costs or not. Mr. Travers ; I won’t make any statement at all as to what I intend to do or do not intend to do. Mr. Barton ; Well, I will ask your Honor to adjourn the case until the next day the Court aits, and I will prepare myself to argue against costs being allowed. Mr. Travers offered no objection, and the case was accordingly adjourned until the next sitting in banco. PETERS V. JOSEPH AND CO. This was a motion for a rule nisi to set aside an order made by his Honor the Chief Justice in chambers, allowing the defendants to withdraw their pleas, and to pay £lO into Court in satisfaction of all claims by plaintiff. Mr. Barton strongly complained of the conduct of the solicitors on the other side, alleging that the order had been obtained by thtir

representing that he had consented to it. He had known practitioners in Dunedin who would have been threatened with high consequences for doing much less than that. He asked that the order be set aside, as it had been obtained by fraud. « Mr. Travers’ clerk declared this statement to bo false. Mr. Travers rose to explain. Mr. Barton said he did not want any verbal statements, and asked him to make an affidavit. He would take nothing short of the order being upset. There has been a downright attempt to tie our hands by saying we .consented. Under existing circumstances they ought to be doublv careful in dealing with him. If he was a little warto his Honor must pardon him. Hia Honor: It is not an otfenoe against me, but I do think it is an offence against the decorum of the Court. If proved that a fraud, aa you mention, was perpetrated, I should certainly be ready to punish the parties. _ . Mr. Barton said it was on the admission of the defendants’ solicitors that he had never consented. He asked if it was creditable to gentlemen of the profession to do such things, Ind then allow him to come into Court to set it aside? He required a rule mu on all the grounds, and if he did not get it that way he would not take it all. Mr. Travers: I need not apologise to the Court if through inadvertance anything of that kind has crept into the rule. . Mr. Barton: We will have no poetical justice about it if your Honor pleases. It is very notorious that we have such poor assistance in this town in the way of clerks that we cannot help ourselves. His Honor: How will this affect the trial, Mr. Barton, of this cause ? Mr. Barton : The result will be that we will go to trial on the original pleas. It was a nice attempt to fix ns in a difficulty out of which we could not get, but, please goodness, we will get out of it. TTiq Honor : I do not see it. Mr. Barton : But I see it your Honor plainly, stupid as I am. My friend gets that order turned out, and thinks I am fool enough to go to trial on it. Hot me, I’ll go to some other place rather than that. I see the object of it plainly. According to your Honor it is poetical justice. His Honor ; You do not understand me.

Mr. Barton : I have fifteen or sixteen years’ experience of your Honor, and I think I know you by this time. His Honor said, with his experience of Mr. Barton, he could not understand him. He had made up his mind, with some hesitation, to grant the rule upon the grounds asked. It appeared to him at first sight that the rule was not properly drawn up with the consent of plaintiff. It was of an extraordinary character. He agreed that it was a matter of urgency, but he could not dispose of it before the return of the Chief Justice. He did not see how he could name a day in the absence of the other side. Mr. Barton : I’ll take no favors and I’ll ask no consent. lam not going to take a rule merely for the fun of arguing it when it is too late.

His Honor ; You can do as you like. Mr. Barton : Then I understand that you won’t “rant me the rule returnable in four days. His Honor : In my opinion, if yon had succeeded in getting this order, set aside, you would not be enabled to try the case of Peters and Joseph at the present circuit. Mr. Barton : If your Honor will sit in banco between the criminal and civil sittings, I will accept that. His Honor : Just for the purpose of adjourning this case ? Mr. Barton ; No ; to grant it. His Honor; The Court is not to answer conundrums. ,

Mr. Barton : Well, the Court must not propound conundrums. His Honor ; Your language is disrespectful. I have told you already I consider the case is a reasonable one, and is of some urgency. It has been pending a long time, and I want to setrit tried. I will sit here on Friday next in banco, proforma, just to adjourn it. ' -" Mr. Barton ; What is the result of that ? , I prefer to let the case go ; let Peters go into the Bankruptcy Court, and all the wrong be done. If my client is to be put in that position, to be a sort of half-and-half, it will turn out nothing at all. His Honor ; I can do nothing more than that. Mr. Barton ; I will take my rule if it is to be a reality, but if it is merely going to be a promise to he broken, I won’t. His Honor: That is not at all respectful language to the Court. The rule was made returnable for Friday next.' Mr. Barton: Now I ask your Honor will you give me a hearing for the case? His Honor; I have gone to the full limit. Pass to the next case. Mr. Barton: Will your Honor tell me what you will give me ? His Honor: I have told you over and over again. The Registrar will tell you. Will you sit down ? The Registrar commenced to read over the decision. Mr. Barton interrupting. His Honor: Will you sit down, Mr. Barton? Mr. Barton; Will your Honor tell me what the rule was that was granted in this His Honor: Sit down and be silent. Mr. Barton; I require to be told. His Honor (to the Registrar): Take a note of this, if you please. I shall call you to account for this, Mr. Barton. Mr. Barton complained of the bad conduct of the officers of the Court. His Honor; Take a note of this, Mr. Allan. Mr. Allan; I will, your Honor. Mr. Barton: What is the note Mr. Allan has taken; will he please be good enough to read it out ? His Honor ; Sit down, Mr. Barton. You have no right whatever to see it. You have distinctly imputed to the officers of the Court misconduct towards you. Mr! Barton : If the note is read to me I will either admit it or refute it. I have before tried to get from the officer what has passed and’he has refused me the information. His Honor : There are many witnesses present. Mr. Barton : Then I will ask everybody to take a .note. I ask leave to withdraw my motion in Joseph v. Peters to review taxation.—Granted. application to quash commitment. Mr. Barton made a motion to quash his commitment to gaol for contempt of Court. He read the affidavit of Mr. Barrett, his head clerk, which showed that no record of Mr. Barton’s commitment was filed until a considerable time after his incarceration. He then quoted the case of Pollard v. the Chief Justice of Hongkong, Law Report, 2, Privy Council, page 206, in which a penalty for contempt of’ Court bad been upset on appeal. His Honor expressed on opinion that the plaintiff had not been guilty of contempt, and added, “We would not think much of it in Wellington if it went no further than that.” He then proceeded to deliver his decision, stating that if he had the slighest doubt as to what his decision ought to be in this case he would take time to consider. He could not say that he had any doubt. Mr. Barton, in his argument, had relied exclusively upon the authority of a judicial case brought before the Privy Council, The only expression which related most in his favor was that in the judgment any person who should be punished for contempt of Court, which was a criminal offence, should have the specific offence distinctly stated to him, and an opportunity of answering it given to him. The expression of their lordships must be taken with reference to the circumstances before them. The alleged contempt in that case was committed in the course of a conversation during the trial of a case at nisi prius on the 27th of the month, and out of that conversation it was impossible in his (his Honor’s) opinion to pick out a contempt of Court. The Chief-Justice animadverted upon the expressions, and did not proceed to judgment until some days after (the 29tb), when he said he would give his decision on the occurrences of the 27th. No lawyer could read that report and lay his finger upon that which amounted to a clear contempt of Court, but he apprehended that the case had no relation whatever to the doc-

trine that the Court may punish ihstanter contempts committed. All decorum in Courts of Justice would be done'away with if, after every interruption of the business of the Court, it was necessary to proceed by rule. He was satisfied that the Judicial Committee could not attempt to lay down any such - doctrine, and . quoted , a . recent case which had come before the House of Lords, the result of which was summed up in the heading of it, viz., that a Judge in the legitimate exercise of his duty may commit an offender for contempt of Court instanter. He apprehended that the contempt in the present case was obvious to those who had any knowledge of the circumstances, and as for those who had not any knowledge of the circumstances they had no chance of exercising their judgment upon it. If these contempts were allowed to pass unnoticed the Courts would be in danger of being turned into bear gardens. He would make no rule in this case. The Court then adjourned.