SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5342, 11 May 1878, Page 2

SUPREME COURT.—IN BANCO.

Friday, May 10. (Before his Honor the Chief Justice.) His Honor (looking at the list) : We shal not be able to take these cases. Mr. Barton : I must respectfully ask your Honor to take them. His Honor : It is not possible. . Mr. Barton ; I respectfully submit there is no impossibility nor any reason why they should not be taken. The matter has now been hung up. I had great difficulty in obtaining a rule nisi, and now, with the rule absolute, it seems to he put off from day to day, and week to week. My client can stand it no longer. He will be driven into the Bankruptcy Court.

His Honor ; You must not use such expressions to the Court.

Mr. Barton. ; I am stating a fact to the Court it is not possible for the Court to know. His Honor ; I do not care what your client says to you. Mr. Barton : It is very important that the Court should know the fact. His Honor : I will not permit you to tell the Court that your client will not stand it. Mr. Barton : I did not say that. His Honor : You did say so. Mr. Barton : Your Honor misunderstood me. His Honor : Mr. Barton Mr. Barton : What I said was “My client can’t stand it any longer,” meaning thereby that ins finances cannot stand it. His Honor : I am sorry to say there is a conflict as to what I heard and what you are saying that you said. Mr. Barton : I can’t help that, your Honor. If your Honor has conflicts as to what I say it is not my fault. It is now ten months since this litigation commenced. His Honor: Which ease are you asking to be taken ? Mr. Barton ; The one first on the list. His Honor : Peters v. Joseph? Mr. Barton : Very well ; Peters v. Joseph. His Honor : That is for a rule. Mr. Barton : Whatever it is for I wish it taken. His Honor : It is a rule to set aside an order in chambers. Mr. Barton ; It is a rule granted by Judge Bichmond to set aside an order made in chambers.

His Honor ; Will there be any impropriety in my taking it ? Mr. Barton ; It would be a very great impropriety not to take it, and put it off until after the Court of Appeal, because the result would be that my client would have to go into the Bankruptcy Court. He cannot have this litigation hanging over his head, your Honor, any longer. He has a wife and family. He is merely a trader living upon his trade, and he cannot trade with liabilities like this hanging over his head. He was fortunate enough to obtain a verdict of a jury for five or six hundred pounds, and then a wholly unnecessary cross action was brought against him. His Honor : If you have a particular reason for saying that it should be taken now I will hear you. Mr. Barton : I am urging that it should be. His Honor : It is quite extraneous matter which you introduce. Mr. Barton : It goes direct to the subject. Your Honor will recollect that I have in chambers been pressing upon your Honor that it should be taken. This is the latest day. It is quite impossible that it can stay over the Court of Appeal. His finances won’t permit it. His Honor : In chambers I said I hoped it would be taken on Friday, but I hoped to be able to take cases on Monday. Mr. Barton : What I understood was that in any event it would come on before the Court of Appeal. His Honor : I do not think I could possibly have said that; I may have expressed hopes it would be so. Mr. Barton : I respectfully submit there is no fair reason why it should not be taken now. If Judge Bichmond is absent it is not my fault. His Honor : I think it is very necessary that Judge Bichmond should sit with me, and, moreover, there is not the slightest possibility of any injury to your client by delay. Your client cannot go to trial until next July. Mr. Barton : Pardon me, your Honor, the sittings—the April sittings—were actually kept over, were kept open until recently, for the very purpose of trying Ms ease in the event of his obtaining the rule which he asked for. His Honor : I do not know anything about that. Mr. Barton : This matter has been shoved over, pushed oyer, and thrown over in every possible way. I respectfully submit that sort of thing should not continue any longer. His Honor : This case must take its chance like other cases.

Mr. Barton : I wish it taken, so that if the result is against us I may obtain leave to appeal, and otherwise will be thrown over for six months without an appeal. It has been hanging over for months ; now nearly a year ; and I am entitled to ask leave to appeal if au order is made against me. We shall bo thrown over this Court of Appeal, and I respectfully submit that is not the way to treat the plaintiff. It is impossible he can he expected to staud it, it is impossible he can stand it, that his finances can stand it.

His Honor : It is quite impossible that occurrences of this sort will not happen. With regard to the Court of Appeal there may be something in that, and it is possible that the Court will see its way clear to assist you in disposing of the case, so that you may be able to appeal. • , .

Mr. Barton ; I do not want any favors, and I don’t ask any, I simply ask the Court to hear this case to-day. Those favors that have been promised to mo I havo never received. His Honor : I will tolerate no imputations from you. If you dare to make any imputations upon the Court yon will receive that punishment which such a person deserves. Mr. Barton : Your Honor will please to address me as a gentleman. I must respectfully

insist that your Honor will treat me as n gentleman. • . His Honor : I have addressed you in. the way in which I think proper to address you. Mr. Barton : Your Honor has no right to treat me in any manner that is below the respect I ought to receive at the bar. His Honor ; Mr. Barton , Mr. Barton ; I tell your Honor back again that you must treat me with respect. His Honor ; Mr. Barton Mr. Barton ; Your Honor has no right to , address me otherwise than as a gentleman. His Honor : X have told you, sir, I will not hear any imputation. Mr. Barton : I have made none. His Honor : Will you ho silent while I address you. 1 have told yon, addressing you by name . Mr. Barton ; Yon addressed me as sir. His Honor : If I did there is no reason to complain of that. Mr. Barton : I respectfully submit there is. His Honor: Will you be silent while I speak. I will not permit you to make any imputations upon the Court, and if yon do so you will receive the punishment that a person who makes such imputations richly deserves. Mr. Barton : X am not to be intimidated by threats. I have done nothing that the Court has any reason to complain of. I have done my best to enforce my clients rights, and have urged strong reasons why this case should be heard. If your Honor thinks that improper, your Honor can refuse me : audience if you please ; lint so long as I address the Court in respectful language X have a right to do so. If this case has drifted into such a stage that I am obliged to speak strongly on my client’s behalf, then no threats from the Court or threats bo put me in gaol or anywhere else will intimidate me or prevent me from doing my duty. His Honor You stated distinctly to the Court that you did not desire favors ; that you had frequently, been promised favors by the Court, and did not receive them. Mr. Barton : That is perfectly true. His Honor : That is an imputation upon the Court which I will notallow to be made. With regard to this case of Peters v. Joseph, if you can show any substantial reason other than you have already stated with regard to the Court of .Appeal—which strikes me as being of some weight—that your client should be put in a position to move this motion so as to be able to have an appeal to the Court of Appeal (which is about to sit) as far as I am able to make any arrangement X will endeavor to do so. I cannot hear the case now by myself. I see the greatest reason why I should not. Mr. Barton : I can see no reason whatever why you should not. It you have any reasons which are proper and right, let ms know them, so that I may combat them. His Honor: I have told you the reason : That it is an appeal against a decision of my own, made in chambers. Mr. Barton : If it were au appeal against a decision of Judge Richmond's made in chambers, X could understand some propriety at all events in stating that your Honor should not deal with his order or rule without his presence ; but your Honor has made this order. When Mr. Justice Richmond first made the rule nisi he stated from the Bench that ha would consult your Honor upon the matter. I presume he has done so, and probably your Honor is in entire possession of the mind of Judge Richmond on the subject. If it does not suit Judge Richmond’s convenience to come here and attend to the business of the Court that is not the fault of the suitors of the Court.

. ' Hia Honor ; Do you venture to make on imputation on the Judge? Mr. Barton : If it ia hia Honor Judge Richmond’s business to be here, he ought to be here. I submit I have a right to say that respectfully to the Court. His Honor : You are probably not aware thiat Judge Richmond is on hia way from Hokitika, and is now at Grey mouth in the steamer, which ia bar-bound. Mr. Barton : I shall make no observations upon that subject. I prefer to hold my tongue upon it. Ido not think it proper that I should aay what X might feel inclined to say. If your Honor is prepared to hear reasons why I should press this on, I will give them. Hia Honor: I am willing to hear reasons. Who is on the other side ? We ore proceeding rather irregularly. I suppose Mr. Travers is on the other side. Mr. Barton : When I am absent my motions are struck out. Perhaps Mr. Travers ought to be here like anybody else. TTin Honor : Not supposing the case would come on to-day— Mr. Barton ; Mr. Travers had no reason to suppose anything of the kind. On the contrary, if I was not here Mr. Travers would have been, to get my motions struck out. When I was coming up from Dunedin my motions were struck out.

TTU Honor : I cannot permit you to go on In this way. Mr. Barton ; I am not saying anything disrespectful to the Court. Hia Honor : You do not seem to understand what respect to the Court is. Mr. Barton : I understand what respect to the Court is, and I know what respect to me is.

Hia Honor : You make most gross imputations, and you think you can do so as long as the language used is not gross. Mr. Barton : When there are facts necessary to be brought before the Court I cannot helpitif the Court feels so tenderly that it treats everything as an imputation upon it. If this case has drifted into that sort of position, it is not my fault, and if matters between me and the Court have drifted into that kind of position it is not my fault. Bending any inquiry of any kind whatever the Court has no right to treat me—to import the delicacy of such a transaction into the matters between me and the Court.

His Honor : I do not know what you refer to ; I cannot conceive what you are talking about. Mr. Barton : Your Honor can hardly not know what I am talking about. His Honor : I have not the slightest idea of what you are talking about. Mr. Barton ; Every single adjournment of this case has been made ground for trying to throw it over and root it out of the list altogether. Mr. Henry Hammersley Travers has done so in every sitting of the Court that has been held. When there were three siftings in four days he made it an objection that I was not present on every one of those sittings (some of which I had not notice of), to throw it out of the list altogether. His Honor : I do not observe that there is any counsel on the other side. I can easily understand why Mr. Travers is not here. He would conceive that there would be nothing to bring the case on, in consequence of what had taken place. Mr. Barton ; I cannot conceive that Mr. Travers, who was present in chambers when I was present, and told your Honor I would press it on before the Court of Appeal His Honor : You did not say any word of the sort.

Mr. Barton: I did not take down, the worda in order that I might be able to repeat them verbatim.

His Honor; Not one word about the Court of Appeal. Mr. Barton: Your Honor, I did. Unfortunately we must again differ upon the matter of what took place. I will not press it. His Honor; It is not proper to have these discussions. Mr. Travers is not here. Even if he were here, and were willing that the matter should come on, I should feel it improper that it should come on. Mr. Barton; If Mr. Travers is not here he should be here to oppose the rule. _ His Honor: I think under the circumstances he would be quite right in supposing the case would not be brought on. Mr. Barton: Mr. Travers could not possibly imagine any such thing. His Honor: There must be an end of this ; I decline to hear you further. Mr Barton : If you will send for Mr. Wilmer yon will find that Mr, Travers, Mr. Wilmer, and I bad a conversation about this very matter, , . ~ His Honor: Wo cannot sond for Mr. Wilmer. , , Mr. Barton: Will your Honor appoint a special day to hear it before the Court of Appeal? , , His Honor: I should be very desirous to do io,.but how can Ido so when when Mr. Justice Richmond may not be hero, How can I do that ? Mr. Barton: I had better prepare the papers for my client to go into the Bankruptcy Court. The sooner he goes the better. His Honor: I think I may venture to appoint Monday as a special sitting, when these cases can ho taken. I think I may venture to do so. I intimated before that I hoped I should be able to do so, Mr. Barton -. You did not intimate it to me.

His Honor : I certainly should not sit alone to bear an appeal against my own decision in chambers on a matter of this sort. If Judge mi v° ’* D °fc here, then possibly there Will ho other Judges here, and I may maim with some other Judge to iit witg me. So also with regard to

Gillon v. Macdonald. That is a motion for a decree. The case having been heard before Judge Richmond, it is quite clear I could uot sit to hear it him. With regard to Joseph v. Peters, that is a rule nisi; and it would be quite impossible to deal with it satisfactorily in the absence of Judge Richmond. With this case there is not that difficulty, and it may bo disposed of by myself and another Judge. Mr. Barton ; Do I understand that all three motions stand until Monday. Fis Honor ; Yes; that must be the case. Mr. Barton ; If the two others are to stand over until Judge Richmond comes back I do uot sea any good to be gained by only one being heard. His Honor : What other course would you suggest; Air. Barton : It cannot possibly benefit my client. Why should not the first case be heard now?

His ITouor ; The reason is that it is an appeal against a decision by myself in chambers. Air. Barton ; I understood you to say that is why you could not hear it by yourself. His Honor : There is no special reason why Judge Richmond should sit with me. I can bear it with another Judge. With regard to the case Joseph v. Peters, which is an application for a rule nisi, it is very desirable that the Judge who presided at the trial should be present when the argument takes place. So also with regard to the argument in the motion for a decree in Gillon v. Macdonald. I have every reason to suppose that Mr. Justice Richmond and I will be able to sit on Monday without interfering with the Court of Appeal. Mr. Barton : If your Honor had allowed mo to know that fact, it would have saved a great deal of heat. His Honor ; Mr. Barton, I told you that. Mr. Barton : It did not reach my ears. His Honor : I have seen it in tbepapers. Mr. Barton : I did not see it. Am Ito rely upon what appears in the newspapers? If your Honor had mentioned that at the sitting of the Court this morning it would have saved a great deal of heat, and your Honor putting me in fear'of further process of the Court. His Honor : I know nothing about heat. Mr. Barton : It would have been very easy to speak about it to me. His Honor Do not speak in that way, to me. It cannot be allowed. It is not respectful to the Court. As I have already said, I think I will venture to appoint Monday, at 10 o’clock, when these three cases can be taken, and we can go as far as we can with them. Mr. Barton : Is Mr. Travers to be bound by this. I may state that I believe Mr. Travers absence is intentional. His Honor : I cannot permit you to make such observations. Mr. Barton : Will you allow me to give my reasons. His Honor: Ho; yon are not before the Court now. Mr. Barton : I am here as advocate for Peters, and I wish to state why it is necessary that Mr. Travers should be bound by it. His Honor: He will'be bound by it, of course. Mr. Barton ; I find that Mr. Travers has slipped out of every arrangement. His Honor : I cannot allow you to make such observations. Mr. Barton : I have a perfect right to make them if I find Mr. Travecs doing so. I was stating so iu open Court His Honor ; Adjourn the Court. Crier; This Honorable Court stands adjourned until Monday morning at 10 o’clock.