West Coast Times. WEDNESDAY, MAY 23, 1866.

West Coast Times, Issue 211, 23 May 1866, Page 2

West Coast Times. WEDNESDAY, MAY 23, 1866.

A caso which has excited a very large amount of attention in Dunedin, and which is likely to occasion] a general discussion throughout New Zealand, is the information for perjury laid against Mr George Elliott Barton, tho leader of tho Otago Bar. Mr Barton's high position and his professional antecedents necessarily attach to such a charge a special clement of tho sensational. Tho interest of tho caso is heightened by the circumstances, that tho accuser was his client at the time of tho occurrences out of which the accusation arose ; that one of tho chief witnesses against him, and one of tho instigators of the prosecution, was his confidential clerk ; and that tho professional career of this gentleman, aud the nature of tho relations between himself and Mr Barton, were both marked by peculiar features. Wo presume that every one who has any intimate knowledge of Mr Barton will at once reject tho idea of his guilt of the foul crime attributed to him. The first information has been dismissed by the Bench. It was a ease of oath against oath, and the Magistrate clocided that the sworn statement of the prosecutor did not receive the sufficient corroboration of circumstances to incline the balance of credibility in favor of his version of the transaction. A new information has been laid, and was to be heard yesterday. Iv the meantime a correspondence has sprung up in the newspapers, chiefly sustained by Mr Barton aud Mr Smi hies his ancient clerk; and it is to the light thrown by tho letters of these gentlemen upon a singular chapter of professional history, that wo desiro to call some attention.

Tho caso itself arose in this way. Mr Barton, being retained by a Mr Russell to watch his interests in certain proceedings before the Otago Waste Laud Board, made an affidavit before tho Supreme Court, in tho course of some subsequent litigation occasioned by a disputed question of costs, that his client had agreed to pay him a round sum of LSO for his services. Mr Russell, on tho other hand, alleged that tho fees duo to Mr Barton wero included in a bill .of costs presented to him byjthe firm of Howarth, Barton, and Howarth. Mr Barton, himself, in one of his letters to tho " Daily Times," puts pointedly enough, and with sufficient fulness for our present use, the question on which the whole case, as between himself and his accusers, hinges. He says :—": — " Tho question at issue in the prosecution is, whether, in an admitted conversation between me and Captain Russell, admitted by both parties to have taken place, when we were returning together and alono, from the Land Office, he and I agreed for a lump sum of LSO for my successful services respecting tho boundaries of tho Mavora llun, or whether he, instead, told me, in the flush of his victory, that I should only have usual costs of attendances. As this conversation was between us when alono, it is only oath against oath, and no prosecution for perjury would lie, uuless there be circumstances of such a character as to corroborate the version of tho prosecutor, and turn so to the scale in his favor, as to make it manifest that he is the party telling the truth." As we have said, tho corroborative evidence was sought to be supplied by placing Mr Smithies (now an admitted, practitioner of the Supremo Court of New Zealand, and virtuaally the prosecuting solicitor in tho case) in the box as a witness against his former employer.

The correspondence in tho papers; deals for the most part with statements made by Mr Smithies, and counter statements made by Mr Barton as to transac- 1 tionaand conversations between tho.two, only indirectly connected with the mat-, ters involved in tho case. Mr Smithies, it appears, had, many years ago, whilst practising as an attorney in England, been convicted at the Central Criminal

Court in London, of having forged tho namo of his partner (who was endeavoring to monopolise a profitable busi* ness) to a retainer in a certaiu suit. Such is Mr Smithies' own version of tho offence, or •' indiscretion," for which ho underwent punishment. That his crime was not one of a more serious comploxion seems indeed to be evidenced by tho testimonials of sympathy and of confidence in his general character, which were forwarded to the Judges of tho Supremo Court, and by tho fact that on tho strength of these testimonials, after many years of investigation into tho whole story, their Honors admitted Mr Smithies to practico as a member of the Bar of Now Zealand. With a view to damage his corroborativo testimony on the trial, Mr. Barton's counsel, naturally enough, challenged Mr. Smithies antecedents, and commented upon them in very strong language. Tho latter gentleman declared that Mr. Barton knew all about tho past at the commencement of the engagement as master and servant between them, and that ho sympathised in his position. Mr. Barton himself declares that Mr. Smithies concealed the facts for a considerable time, and that on his revealing them on the receipt of the documents he desired to submit to tho Judges, ho went on his knees, and with tears in his eyes, implored that he might not bo dismissed, ko. There is a sufficiency of charges and counter- charges, of false statements, treachery, ingratitude, and so forth ; but these aro only incidental revelations of a painful story.

Wo dismiss tho matter at issuo between Mr Barton and Mr Smithies. We dismiss the question of Mr. Barton's guilt of tho crime alleged against him. But the question of tho relations between tho barrister and his client, as it stands illustrated by this case, is one not so readily put aside. By a law passed for a purpose of temporary convenience, solicitors in New Zealand are also recognised as barristers, and admitted to practice as such in the superior Courts. But tho law reserves to the Governor the power of giving notice of the termination of this amalgamation of tho two branohos of the profession, and tho ro-establisment of tho system which is so jealously maintained at homo and in the more important of the colonies, such as Now South Wales and Victoria, where tho barrister is a grade distinct from, if not higher than that of tho solicitor. Tho exigencies of a young society, which ' required an economy of forces in the profession, have passed away. With the growth of a largo population and tho development of great mercantile and propertied interests, a vast amount of litigation has arisen, and in its proper conduct the solicitor and' tho advocate may with commensurate honor to themselves and advantage to tho public, undertake each his special work. That the duties of tho two branches aro utterly dissimilar ; that the most competent attorney may be, and very often is, tho most incompetent pleader; aud so on the other hand a clover barrister, a very poor hand at solicitor's practice ; are facts patent to every observer. The great fault, however, of the present system is the personal contact into which the barrister is brought with his client, and tho personal nogociations as to fees which it involves. Wo have cleared this case of Russell v. Barton of tho matters surrounding the real question that calls for publio discussion, and to that question we shall address ourselves in a future article.