THE COURT OF APPEAL.

Tuapeka Times, Volume V, Issue 229, 20 June 1872, Page 6

THE COURT OF APPEAL.

For several days last week the Court was occupied with Mr Smythies's case, the arguments having reference in the main to " acts of turpitude," alleged to have been committed by Mr Smythies since his readmission to the bar. In referring to these, Mi- tiinythies said Mr Macassey had made an affidavit making eight specific charges against him. Two other charges had been made against him in the Parliament.

Air Justice Johnston : If those two charges were to be used against you, the Attorney General and Mr Travers would have brought them forward. They have not done so. You have to meet the charges in the affidavits only. Mr Smythies : Your Honors will please note I am prepared to meet such charges if made.

The Chief Justice : The form in which the House of Representatives sent up their Bill to the other House seems to show that the Lower House was satisfied of > our character, and it is a sort of testimonial to you. Mr Justice Johnston : II is evidence to show that your common reputation was favorable, and is so lar evidence of your geueral character.

Mr Smythies : I will prove what took place before the House ot Representatives, and then I will read two affidavits testifying to my character. All the Otago members have known me for years, and all. with one exception voted for this Bill ; that ought to be evidence of my oharacter.

Mr Travers : The reas nof the Bill being passed was no doubt the hardship upon Mr Smythies of ex post facto legislation affecting his pre- existing rights. The question was not one of character.

Mr Smythies proceeded to read a statutory declaiation made in England on the eighth day of June, 1869, by MrF. L. M«ville. This declaration had been obtained for a purpose in England, and had not been obtained or intended for these proceedings. Meiville declared that he had known Mr Smythies from 1864 to May, 1868, and had always found him to b« upright and honorable. That every one in Dunedin had regretted the proceedings taken against him, and thought them wrong. Mr Smythies read another statutory declaration made by Mr W. H. Clayton, Colonial Architect, who testified to the excellent character of Mr Smythies, and to the superior education and refinement of his family.

Mr Justice Johnston : Persons who privately knew Mr iSmythiei may believe him to be perfectly upright, but here specific charges are made against him professionally, and these must be met.

The statements in Mr Macassey's affidavits purported to show that Mr Smythies had been guilty of pettifogging and dishonorable conduct. As to Clement's case, Mr Smythies said the legal questions raised in that case affected the racing world, and a crowd of racing men including the steward of the race course came to instruct him. The Resident Magistrate decided against the claim, and Clements appealed f om that decision. Mr Macassey now charged that after Clements had determined to withdraw the appeal, that he (Smythies) wrote a letter to Clements to purchase the claim, and agreed with Clemtnta to carry on the appeal thenceforth at his own risk. Mr Macassey charged that he (Smythies) prosecuted the appeal to the Court of Appeal, where ho lost the case, and then left Clements to pay the costs ; that Clements became bankrupt in consequence, and that the successful party was thus left without a remedy for the expenses he had incurred in the litigation. Mr Smythies's answer to this charge was that Clements did not withdraw the case, or wish to withdraw it. Had Clements so wished, he (Smythies) would have felt bound first to consult the stewards were completed before anybody but the Registrar, who had not power to take them, committed a grass fraud upon my client, and therefore my son, in my absence, issued execution against Jones.

The Chief Justice : Surely another course was open to you. You might have demanded security for the costs ; but why arrest Mr Jones ?

Mr Smythies : They acted fraudulently, and my son very properly took the utmost advantage against Jones. Mr Justice Chapman : You are a little too ready to charge absent men with gross fraud without any affidavit. I, for my part, from what I know of the person charged, do not believe it.

Mr Justice Johnston : Was not the sheriff who had been indemnified by Jones answerable to you ? Why did you require him to issue a ca, si. against Jones ?

Mr Symthies : The property in the money does not vest in the plaintiff till the sheriff actually receives it ; therefore it was that I used every endeavour to force the money into the sheriff's hands.

Mr Justice Richmond : But you, when suing Catamore, were aware that the basis of your action against him was your right to the costs as against Jones. The decision in the Court of Appeal might show, and in fact did afterwards show, that you were not entitled to these costs. How then could you justly issue execution before such decision ? Mr Smythies : At that time there was as yet no such decision, and everybody, including Catomore himself, believed me to be entitled to those costs.

The Chief Justice : Do you mean to say that the Supreme Court Judge had decided in your favor ?

Mr Smythies was understood to say that such was the case. Mr Smythies complained that from the moment Mr Justice Ward arrived in Otago he made a sort of dead Bet at him. "Nobody," said Mr Smythies, " thenceforth paid me any costs, nor could 1 ever recover any before the Judge. I was very poor at the time, and I had to fight everything hard to get paid anything. Ido not wish to allude any farther to Mr Justice Ward's cod duct towards me."

The next charge of Mr Macassey's dealt with by Mr Smythies, was that after his client, Captain Russell, had protected himself against execution upon a judgment obtained against him by Smythies, by entering into a deed of arrangement with creditors, he (Smythies), notwithstanding the deed issued execution ; and the sheriff having afterwards, upon notice given to him of the complete excecution of the deed, retired from possession, he (Smyihies) brought an action against the sheriff. To this charge Mr Smythies replied that as Russell's deed of arrangement contained no clause of release, he was still entitled, to proceed to execution against him, and the sheriff having gone out of possession under an indemnity from Russell, he (Smythies) was thus forced to sue the sheriff.

Mr Justice Johnston : Surely, Mr Smythies,.the public officers were not hostile to you, as you allege, in your affidavit. You prejudice your case, by such, statements, and also by your statement "that the profession in Dunedin were afraid of Mr Macassey. Mr Smythies • I have it from the gentlemen themselves that they are afraid. Referring to other charges of sharp practice -Mr Smythies said *' Everybody at that time was looking suspiciously at me and attacking me. I could get no costs and no means to live. That Act of 1866 {pressed heavily npon k me, and I was forced to act apparently harshly against persons when otherwise I might not have done so." He then proceeded to comment upon .Mr Haggitt's affidavit, which Mr Smythies stated

contained an allegation that the whole prefession in Dunedin were hostile to him, and had unanimously resolved to oppose him. Mr Justice Johnston : I do not think we should act upon such a feeling. 1 cannot conceive that it was meant to influence us, nor should it be allowed to do so beyond this — that it is testimony to the Court that your conduct should be enquired into carefully. In answer to this affidavit, you say that the profession in Dunedin are afraid of Mr Macassey, and you also say that a distinguished member of the profession in Dunedin offered you money to assist your defence, and told you he was induced to sign a memorial against you from fear. I can well believe that an offer of assistance might have come from one of your strongest opponents actuated by a high-minded sense that you should have the means to enable you to obtain a fair hearing. Mr Justice Richmond : In my opinion the general adverse feeling is itself evidence of your unfitness. The fact that a whole profession is adverse to the admissiou of any person is prima facie evidence against such person ; but I think we cannot be influenced by this evidence. The statute imposes upon us the necessity of deciding for ourselves upon the facts adduced before us, aad apart from any such evidence of feeling. Mr Justice Johnston : Your petition for admission in 1864 alleged that you then held an honorable position in the office of Messrs Howorth, Barton, and Howorth, respectable solicitors. That fact, I know, weighed very materially with some of the Judges in admitting you.

The Chief Justice : Mr Haggitt's affidavit discloses the fact that of the solicitors to whom the Law Society at Dunedin telegraphed, twelve were actively opposed to Mr Smythies' admission, and six gave no opposition.

Mr Howorth : Mr Haggitt's affidavit refera to eighteen members of the profession non-resident in ( Dunedin. At the meeting in Dunedin there were sixteen present, and they unanimously resolved that Mr Smythies should be opposed. «J|£ ■ ' Mr Justice Richmond : Tbjtftfffd&vi!; onsi deals with those who are opposed to the admission. It does not affect t&e qjestion' whether those who abstain fromt opposing approve. The non-opposition to Mr bmythies in 1864 stood him in good stead. I was then senior judge in Otago, and I was aware of private opposition by members of the profession to the admission, and I confess it took me by surprise when they suddenly withdrew that opposition. My private knowledge was not known to the judges when they afterwards, in 1865, were consulting upon Mr Smythies's admission, of the racecourse who were interested in the decision. The letter he wrote to Clements proposing to purchase the claim was, when produced, kept by the Court, but no proceedings were ever taken upon it against him. If any could have been taken, no doubt they would have been by some of the parties now resisting his admission. He next would answer the charges made by Mr Macassey in respect of Orbell's matter, and the arrest of Mr John Joneß, and to them he now replied that there being a judgment of the Supreme Court against Jones, and money in the hands of Catomore, he had a right, in virtue of his solicitor's lien, to require payment to be maae by Catomore to him. If the judgment were afterwards reversed by the Court of Appeal, Jones could recover that money back from Orbell.

The Chief Justice : Orbell was practically insolvent. Was not this taking advantage of the strict law to get money from Jones that would never be refunded to him ? I am sorry to hear such a matter treated lightly.

Mr Smythies : We dealt sharply, because Mr Macdssey, by alleging that the recognizances of Jones were completed before a Judge, when in fact no such recognizances