SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5319, 13 April 1878, Page 1 (Supplement)

SUPREME COURT.—IN BANCO.

Friday, April 12. (Before'His Honor Mr. Justice Richmond.) GILLON V. MACDONALD AND OTHERS. Mr. Barton stated that in this case he hat to apply for a rule nisi for attachment. His Honor : Are there two oases or one Mr. Barton '! Mr. Barton : There are different persons concerned,'your Honor, and it is necessary tc divide the motion. The one is a motion foi selling or appropriating Gillon’s share of the Argus paper and plant.. 1 use the same affidavits in both, your Honor. His Honor : AVe will take the case involving the sale of Gillou’s share first. Mr. Barton : The sale of the whole concern points to the sale of Gillon’s share. I submit the latter sale will attach Mr. Bethune, the auctioneer, because notice was given him not to sell. His Honor : Had he nothing to do with the sale of the paper and property ? Mr. Barton ; It will be a part of the res gestae to show what the other party is. _ His Honor ; I do not know that it will make much matter, only I understand there is a contempt to which Mr. Bethune is a party, and another to which he is not a party. Mr. Barton argued that if he showed Mr. Bethune acted improperly in the first instance by selling plaintiff’s share in the Argus, he was answerable for consequences resulting therefrom, and might thereby be made a party to the second suit. To instance what had occurred he read the following affidavit ; —> “I, Elliott L’Estrauge Barton, of the city of Wellington, in the colony of Hew Zealand,' articled clerk, make oath and say : 1. X am a clerk in the employ of Henry Samuel Fitzherbert, the solicitor for the plaintiff in this cause. 2. On the Ist day of March last I attended at the auction-rooms of Messrs. J. H. Bethune and G 0.,, auctioneers, in Braudonstreet, in the city of Wellington aforesaid, and at the request of the plaintiff, E. T. Gillon, delivered to (sic) J. H. Bethune, a member of the said firm of Messrs. J. H. Bethune and Co., a notice, a copy of which is as follows ; Ist March, 187 S. Sirs,— l hereby protest against you selling my share in tlie Evening Argus Company, or otherwise dealing with it. It is the subject matter of litigation in the Supreme Court, and the vendor is a party to the suit as well as myself.—l am, Ac,, E. T. Gillon. Messrs. J. H. Bethune and Co. “3. The said notice was signed by the abovenamed plaintiff, E. T. Gillon, in my presence, and the share referred to in it is the share and interest of the said plaintiff as a partner in the Evening Argus newspaper referred to in the record in this cause, -1. When I attended at the said auction-rooms as aforesaid, there were present the above-named defendants, Thomas Kennedy Macdonald, Robert Kent, ' and Charles McKirdy, and also Prank Morton Ollivier, a member of the firm of Travers, Ollivier, and Co, the solicitors of the defendants in this cause, and Mr. Perrier, the editor of the said Evening Argus newspaper, and the said J. H. Bethune. 5. Shortly after I attended the said auction-rooms the said J. H. Bethune put up for sale by auction the said share of the said E. T. Gillon in the Evening Argus newspaper. Before any bid was made I handed the said J. H. Bethune the said notice, and told him I was clerk to Barton and Eitzherbert, and acting under Mr. Gillou’s instructions, and I then addressed the persons present, saying, ‘Whoever buys these shares will buy a law suit at the same time,’ The said J. H. Bethune then read out the said notice to the , said persons present, and addressing the said Frank Morton Ollivier said, ‘ Shall we go on with the sale Mr. Olliyer V to which the said F. M. Olliviei replied, ‘ Certainly,’ and the said J. H. Bethune then proceeded with the said sale, and knocked the said share down to the said Robert Kent for the sum of £2O. 6. The biddings were confined to the said Robert Kent and the said Charles McKirdy, and to my knowledge and belief no persons were present at the said auction other than the said Thomas Kennedy Macdonald, Robert Kent, Charles McKirdy, Frank Morton Ollivier, Mr. Perrier, and J. H. Bethune. 7- On the 27th day of March instant I was informed by the said J. H. Bethune that he was instructed by the said Charles McKirdy, as mortgagee, to sell the said share of the said E. T. Gillon in the said Evening Argus newspaper.— Elliot E’E. Barton. —Sworn at Wellington, in the colony of Hew Zealand, this 29th day of March, one thousand eight hundred and seventy-eight, before me, F. M. Ollivier, a solicitor of the Supreme Court of Hew Zealand.” With respect to the value of the year, it had been found by a jury that Gillon was engaged tor five years as editor, at a yearly salary of £312, and that the salary for three years was due to him, and £l2O for an execution put in upon Gillon ; and consequently there was over £llOO due to him. Gillon was further entitled to his share of the profits, which were said to be 26J per cent, on the capital invested. The Court on a former occasion had remarked that the case was not one involving large interests, and he submitted that that statement was essentially wrong. The contempt of which defendants were guilty was that they interfered with a matter which was sub judice. Mr. Gillon’s affidavit was also put in. It was stated therein that the Argus had been sold for £2OOO, including the plant and good-will.

His Honor : I cannot take either your recollections or Mr. Gillon’s affidavit against the record of the trial. Mr. Barton stated that the record was incorrect, inasmuch as it stated that he had consented to an issue respecting Mr. Saunders being no longer a partner, and he had not consented. It was the duty of the Court tp inquire into that matter and ascertain whether it was true or not. If he (Mr. Barton) was guilty of making a false statement he should be punished for it. If the record was incorrect the officers of the Court had no right to make it, and should be punished for it. His Honor : The record, I understand, is made by the Chief Justice. Mr. Barton begged to state that the Chief Justice must have been under a misapprehension. He had warned the Court officers and everyone that nothing was to be put down-as having his consent. He further produced an affidavit showing correspondence which had taken place between his firm and the Bank of New Zealand. The bank had been requested to inform Mr. Gillon respecting the financial account of defendants ; but the information had been withheld. He also produced the copy of a letter from Messrs. Travers and Ollivier, intimating their intention of selling Mr, Gillon’s share in the Argus unless ha paid the sum of £250, which Mr. Mclntyre, one of the defendants, held in mortgage on it. He was determined to show that defendants endeavored to render nugatory all the proceedings of the Court. They first fought vigorously, and after the verdict of the jury they kept plaintiff out of the premises, and assaulted him. When he made a motion before the Court asking that these parties should be compelled to let him go to the premises to protect his interests, they resisted the motion successfully by a gross misstatement and perversion of the truth ; and after they had succeeded in getting the motion dismissed with costs, they treated the present case with utter contempt; as much as to say, “We can defeat’ these parties to the end.” If parties were to be allowed to do things like this, the sooner the Court shut up the better. His Honor enquired of Mr. Barton whether he had any authority to show that the sale was contempt per sc. After further argument Mr. Barton cited the case of Welsh v. Buck, 31 L. J., Q. 8., 263. His Honor commented upon the importance of the case, and took time to consider before giving his decision. Mr. Barton then moved for a rule nisi in Gillon v. Macdonald and others, to rescind a rule of January 30th, 1878, dismissing an injunction. From what had since transpired ho argued that the rule should have been granted. His Honor ; If you ask for an order to be rescinded you cannot go upon new material. Mr. Barton said they had been served with a notice to pay £2l costs, and an execution might he served against Gillon nt any moment. His Honor was quite clear that the application could not be granted. The propriety of the refusal of the 30th of January could • only

be judged by the material before the Court on that date.

Mr. Barton ; I charge these parties with fraudulently and improperly abusing the process of the Court, dishonoring the Court, cheating the Court, endeavoring to defraud Gillon; and now they have carried out their design. I do charge them directly with fraud, —I charge the parties, I charge the solicitors, and I charge everybody connected with it. His Honor would not say what in his opinion might be the proper remedy for plaintiff under the new circumstances, but the Court must refuse to rescind the rule of the 30th January. Application refused. The Court then adjourned.