SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5344, 14 May 1878, Page 3

SUPREME COURT.—IN BANCO.

Monday, May 13. (Before their Honors the Chief Justice and Mrl Justice Williams). PETERS V. JOSEPH AND ANOTHER. Buie nisi. —Mr. Travers appeared to show, cause, and Mr. Barton to move the rule absolute. ' , On the 22nd February the following order ' was made by hiaHohor the Chief Justice : —: •. i“ On hearing Mr. Travers for the parties, and ' on reading the summons herein, dated 13th '• February inst., I do order that the defendants do have leave to withdraw the pleas pleaded' by them to the second count of the'declare-- \ tion in this action, and to pay into Court the ” sum of £lO, and to plead such payment in ” satisfaction of the plaintiff’s claim under the said second count, and that the defendants be ■ at'liberty to give notice in mitigation of - damages under the said second count; and Ido . further order that the costs of and'incidental to this order and the costs of the amendment be plaintiff’s costs in the cause in any event; and I do also further order, by consent; that

, the question as to payment of the coats of the first trial of the issues raised on the second ‘ count, and of the costs of the rule for a new, trial, as affected by this application, be reserved for the consideration of the Court at the time of the disposal by the Court of the question as to the costs which are reserved by the ■ mle'fbr the new trial, the defendant also un- ; ;dertaldng not to proceed in the' meantime . with the taxation of the costs granted by the said rule.” . , ■ The grounds on which the rule nisi had been . granted wore :•—. i;.That the said order, dated the 22nd day of February, 1878, was not served upon the or his . solicitor until the 12th day of * Marchj 1878, and was abandoned by‘ the defendants. 1 v 2. That the said order in effect varies and ' " alters the rule of this Court, dated the 17th ■day of October, 1877, made in; this action for a new trial of the issues joined in the action. 1 3. That the said, order improperly reserves the question as to payment of the coats of the first trial of the issues {raised on the second count, and of the coats of , the said rule for a “T That the said order purports to he made by consent, meaning thereby by the consent '’of all parties to this action, and no consent was ever given on behalf of the plaintiff to tho said * order.' , ■ ■■■ ... i B. That the said order was drawn np so as td‘ deprive the plaintiff of all costs of this action, and force him either to go to trial upon an issue which the Judge would direct tho jury against him," or would force him to allow him- , self to bo nonsuited or to abandon his action ‘ and pay all costs. ' Mr, Travers: I have to express to his Honor the Chief Justice my apology for not being present on Friday; hut I. understood that tho matter would not then come on. The Chief Justice: I did not oxpoot you, Mr. Travers. .... ’ •Mr." Travers ; I ought, in courtesy to the Court, to have been present.

Mr. Barton Himy Ifriend is making such a statement as that - _ ' The Chief Justice : There is nothing at all to make it necessary for you to interpose, Mr, Barton. • ' • Tr Mr. Barton : It is hot correct, your Honor; what Mr. Travers has stated is not correct. . The Chief Justice: You are not to interpose. Mr. Barton: You have no right to stop me when Mr. Travers is stating what is not true. I have a memorandum here of what took place. , , , The Chief Justice : I beg of you not to interpose. You have no reason for doing so. Mr. Barton': Your Honor has no right to stop rao from defending myself. Mr. Travers having been called on to resume his address to the Court said : I have to show cause against a rule Mr. Barton ; I have to mention a matter which I think of some importance. It is this: Mr. Travers having now stated in effect that he was not expected to be here on Friday, and that it was so arranged, I respectfully submit that I have a right to inform your Honor what took place before the Kegistrar, Mr. Wilmer. I have a right to do it, and I ask your Honor’s ruling—yes or no. The Chief Justice ; What is it you desire to address to the Court ? Mr. Barton ; To show what took place. When Mr. Travers is allowed to make statements impugning my truth, I have the right to ask leave to show the facts. Judge Williams : Surely Mr. Travers did not impugn your truth 1 Mr. Barton : Yes, he did, your Honor. Judge Williams: I did not understand him so. Mr. Barton : I ask the right to show what actually took place. Mr. Wilmer may be called if you so please it. I ask your Honor whether Mr. Travers should be allowed to make statements, and that when I make contrary statements I should be shut up by the Court. The Chief Justice : Will you sit down. Mr. Travers desired to apologise to the Court for not having been here on Friday, saying that he did not expect the case would be taken on that day. i Mr. Barton ; Exactly, your Honor ; I say that is not true. The Chief Justice: I told Mr. Travers that ' ■

Mr. Barton ; You did not expect him.: The Chief Justice : One minute, Mr. Barton ; I told Mr. Travers that no apology was needed, because I did not expect him. Mr. Barton : How did your Honor know ? The Chief Justice ; I will not be questioned by you, Mr. Barton. Mr. Barton : Pardon me, your Honor—— The Chief Justice: I have stated all that Mr. Travers said, and you say that Mr. Travers is impugning your truth, Mr. Travers did not mention your name, or refer to any question os to your truth. Mr. Barton : Can it bo pretended that he did not refer to me ?

The Chief Justice : You must really treat the Court with respect. Mr. Barton: Your Honor cannot pretend for a moment that Mr. Travers was hot referring to me. The Chief Justice; I see no reason for your interposing, Mr. Barton. Mr. Barton : Shall I be allowed to answer Mr. Travers’ statement, which I say is not true.

The Chief Justice : The Court is of opinion you have no reason whatever to interpose. , Mr. Barton : Very good, your Honor. Mr. Travers resumed his address, and when ha was referring to the effect of the result of the trial,.

' Mr. Barton asked for the production of an affidavit to substantiate Mr. .Travers’ statements.

The Chief Justice,: The Court is of opinion that your interposing is entirely uncalled for. Mr. Barton : lam interposing as to a matter ' of fact.

The Chief Justice ; You will be good enough to consider for a moment the result of what you are saying. "When the Court published its judgment it pronounced its reasons, and you are now asking Mr, Travers to call for something to show what the reasons of the Court were. I suppose you were present; I do not know whether you were there or not. "■Mr. Barton: It was in chambers, your Honor.

The Chief Justice : The judgment was read in chambers by Mr. Justice Richmond. Mr. Barton : If it was read by Mr. Justice Richmond, I suppose it was in writing.; The Chief Justice : The reason given for the judgment was that the damages in such a case, by the authorities, ought to have been nominal damages. 1 Mr. Barton : That is not in the rule, to my recollection of it. The Chief Justice : Of course not.

Mr. Barton : Surely if that was the reason it ought to be in the rule. I respectfully deny that the damages were excessive. After some further argument, The Chief Justice : There is not the slightest necessity, Mr. Barton, for your interposing. Mr. Travers has got the rule, no doubt, and he said what is quite correct. Mr. Barton : I respectfully submit that the Court has to deal with the record. The Judges’ reasons may he "another thing ; they keep them in their,own breasts. - The -Chief Justice : No, they don’t, Mr. Barton, they pronounce them. 1 Later, Mr. Barton objected to a certain affidavit, which could not be admitted, being: read by Mr. Travers, alleging that it would go forth to the public through the reporters. The Chief Justice : The reporters do not constitute any part of the Court, and they should not be referred to. , . Mr. Barton then contended that Parliament had held that the reporters’ presence should be taken notice of, and insisted that if there was a solemn decision 1 of Parliament the Court must take notice of it. 1 .

. Upon the close of Mr. Travers’ speech, Mr. Barton proceeded to address the Court. He, after a few observations, characterised the proceedings of the other side a 3 being disgraceful and disreputable. - The Chief Justice ; You cannot be permitted to make observations of that sort.

Mr. Barton : I am about to charge the other side with Obtaining the order fraudulently. '' 1 . J The Chief Justice: Your words will be taken down. You are about to charge the other side. I ask you what you mean by that. Whether you mean the solicitors or whether you mean the parties ? ‘ " ' - Mr. Barton : The whole lot of them. Of course the parties are answerable for the action of their solicitors, and of course the solicitors would not, I presume, attempt or dare to perform such acta without the authority of the parties. The Chief Justice : I. am taking a note of what you are saying. . . ~ , - ' : Mr. Barton : You may take it, your Honor. The Chief Justice ': Mr. Barton, not only your language but' your demeanor must be courteous and respectful to the Court. I must ask you in this instance to repeat your words.'

Mr. Barton ; What I said was this—That the more this case is argued before this Court the more disgraceful and discreditable does it appear. These are my. words, I am now going to show your Honors how. .... I will give my version of the case, for the benefit of Mr, Justice Williams. The case was commenced about ten, months .ago. , .It was first tried at the October sittings, , and the plaintiff obtained ' the verdict of _ a jury, amounting to some -8525. ■' At that trial, when the. jury came out with their verdict, the learned Judge - ■ ;

The Chief Justice : You must not state to the Court anything that is _hot upon the affidavits. ■ ■

Mr. Barton : Or. is within the knowledge of the learned Judges ? These facts were stated at the rule nisi, and I submit X have a right to state them. ■' '

. The Chief Justice : The rule is drawn up. On reading , certain affidavits,” and j certain other matters". - Thesemattorsmay be referred to, but you must not refer to anything else. It would bo inconvenient and improper. , Mr. Barton : It is not proper for anyone to make affidavits of what took place in the face of the Court.' . . .

The Chief Justice : I must ask you not to refer to matters which arc not in the affidavits. It is not necessary. ' Mr. Barton : How did Mr. Travers do it! The Chief Justice dissented. Mr. Barton : Pardon me, your Honor; he gave a history of the base forjudge Williams’s benefit. . , '... , .

The Chief Justice ; Ho gave nothing that was not in the documents in this case. ■ Mr.. Barton : There could be, no doubt of it. The Chief Justice : I do hot desire to say. whether there is any doubt or not. All I say is you must be limited. My brother Williams will give his opinion. My own opiniohiis that it is undesirable to refer to them; : ' • Mr. Barton : It may be undesirable, your. Honor; but the question is, what is just 1 „■ ; ; The Chief Justice : What is just is desirable. , > . . . v •.. ~ ' , : Mr. Barton : Then I submit it is highly desirable. , The Chief Justice : It is very desirable and very , just that matters should not be referred

to in Court-.impugning the conduct of other persons unless the matter is properly before the Court. ‘The only subject matters youican refer to are those referred to in the rule, the affidavits, and the record ; hut what you are about to say took place at the trial; I think it is undesirable to refer to that. Judge Williams : I see no_ necessity whatever for entering into anything beyond the matter stated iu these documents, which are the grounds of tho rule. All that Mr. Travers did was to give us matters which could be perfectly well collected by me from the documents. You are going into something outside of that.

Mr. Barton : I submit I am entitled to state what took place between the Judge and the jury after they gave their verdict. That is what I am about to do now.

The Chief Justice : I think it is extremely undesirable to do so.

Mr. Barton : If your Honor rules against it there is an end, and I will not press it Ido not know whether your Honors are ruling against me. The Chief Justice : Yes. ,

Judge Williams : I think so, Mr. Barton. Mr. Barton : I protest I ought to be heard. This is not a kind of motion, not a case or condition of affairs in which I ought to be stopped. The whole circumstances surrounding this oaso are such that I ought to be given reasonable latitude.

Judge Williams : The circumstances may be very bad indeed for aught we know. They do not appear on the documents upon which this rule is granted, and they ought not to be brought forward at present. Mr. Barton : Mr. Travers was allowed to make statements not in the documents.

Judge Williams : Keally I should be very sorry to contradict you, but I took a pretty full note of what Mr. Travers said, and I do not think there is a statement he made which could not be gathered from the documents. Mr. Barton : I am confined absolutely and entirely to the documents before the Court. We will see if they do not show the very same thing, namely, that the whole;of this proceeding is disgraceful and discreditable. . Later there was some discussion as to a matter being taken in chambers, when Mr. Barton said he would take care that he would not go into chambers when he could come into Court.

The Chief Justice : You have no right to go outside what is the strict practice of the Court.

Mr. Barton said the universal practice of the Courts was in his favor.

• The Chief Justice : I may refer you to English decisions upon the subject—l am not aware that there is any decision in New Zealand—which show that in all cases where there is an objection to the words “ by consent” being used you ought to go to chambers. Mr. Barton: If that was my only objection; but it was not. In this case, in : which the other side acted fraudulently, dishonestly, and with an intention to defraud my client in every possible way, I am entitled to come to the Court.

The Chief Justice : If you had applied in chambers then the Judge who made the order would have been able to say whether he made the order wrongly or rightly. Mr. Barton ; If the order was wrong by a mere mistake then it would have been amended in Mr. Travers’ office if they had been honest about it.

After discussion as to the drawing up of the order ef 22nd February, Mr. Barton : The order was so drawn with the intention to cheat, and I, charge the other side'with doing so. It is a gross attempt to misuse .the process of the Court—to misuse the decision of the Judge in their favor.' Nothing ever came out of a Judge’s chamber so utterly unjust, and no lawyer of the Court could produce a case like it.

The Chief Justice : lu the first place you do not know much about it. ;

Mr. Barton : I know as much of it as any barrister of the Court.

The Chief Justice ; If you look through the reports of decided oases in England you will see that in like cases the same kind of . order is made.

Mr. Barton : Under such circumstances as these?

The Chief Justice : Under very much' the same circumstances.

Mr. Barton : I do not believe such a case exists.

The Chief Justice : Did you look? Mr. Barton : I did not look, because I don’t believe such a thing could be found, and I am not the person to waste my time in looking for a thing which could not be found. ; j . After the adjournment for luncheon, Mr. Barton proceeded with his address, and characterised the order made as a fraudulent abuse of the process of the Court. It was au ‘ unjust rule dishonestly obtained; a rule that ought to be rescinded in any case, even if served in proper time., It was a proceeding contrary to good faith. The whole was a gross fraud upon his client, and was done purposely to keep him back and prevent him from having his redress, cheating and defrauding him of an honest verdict he had obtained, by putting him in the position of having to pay £2OO costs before be could commence another case, or taking £lO without costs at all. When he (Mr. Barton) made such' charges as that, the Court was the proper place to come to make them. He respectfully submitted that the order ought to he made absolute, with costs. ■Judgment reserved. The Chief Justice intimated that the Supreme Court in banco would sit oh Wednesday at 10 o’clock. The Court then adjourned.