FURTHER PROCEEDINGS AGAINST MR. G. E. BARTON.

West Coast Times, Issue 269, 3 August 1866, Page 2

FURTHER PROCEEDINGS AGAINST MR. G. E. BARTON.

(from the otago daily times, july 25.) (Bt-fore their Honors, Mr Justice Richmond and Mr. Justice Chapman.) Tuesday, July 24. The Court sat after the conclusion of business in Chambers. capt. Russell's case. James Ure Russell, who had been heard in Chambers, and directed to come into Court, said that he had no professional assistance, and was obliged to come before their Honors personally. He had put in an affidavit, charging Mr Barton — Mr Justice Chapman — What do you move for ? Mr Justice Richmond— That is no motion for the Court fo consider. I suppose your application is against Mr Barton, as a solicitor of this Court. Capt. Russell— Yes, your Honor. Mr Justice Richmond — You must ask that he should do something. His mere answering yojr affidavit is nothing. What is to come of it, when he has answered ? Capt. Russell— The first two charges have been before the Resident Magistrate, and this Court, in various ways ; but I have had no opportunity of .going into the merits at all. Mr Justice Chapman— The case occupied two or three days, before the Magistrate, and the whole of the merits were gone into. It was just oath against oathMr Barton's against yours ; and that is not enough for a charge of perjury. Capt. Russell— The second charge was * not entertained by the Magistrate ; and on it I feel really assured — Mr Justice Chapman— The third, you must mean. As to that, there is before us a motion for a rule nisi calling upon the Magistrate to show cause why a mandamus should not issue to compel him to hear the application ; and we are about to dispose of that motion to-day. Capt. Russell— The next complaint I ■ have to make is for gross unprofessional conduct. Mr Justice Richmond — But, still, what - do you ask shall be done by the Court? Capt. Russell— l must throw myself to a great extent on the sympathy of the Court. These matters' have involved not only Mr Barton's reputation, but mine; and it is utterly impossible I can leave them remain as they are. I cannot go forth into the world with such a stigma as a charge .of perjury upon me, and with no opportunity of clearing my reputation in one way or the other. Mr Justice Richmond— The Magistrate disposed of the case against you'favorably, did he not ? Cani,. Russell— On the last occasion, the Magistrate^ said that my proceedings appeared to bo persecution iustead of prosecution ; aud he allowed Mr Barton to make a long speech, composed wholly of a tirade against myself. Mr Justice Richmond — We certainly eaanot allow you, here, to make another speech of the same kind against Mr Barton. k Capt. Russell — I don't wish to dp so, your Honor ; but I came out of Courfvery much prejudiced by tbe remarks of Mr Barton, Mr Jiwtiw Bi9h«um4—Wh.Rt affidavit

you wish Mr Barton to be called upon t answer? Capt. Russell— The whole of the affidavit I have put in. Before I left Southland, I had made up my mind to call upon Mr Barton to answer, not a charge of perjury, but other matters connected with his professional conduct. The results have been Very serious to me.

Mr Justice Richmond — If your object is some ulterior proceedings such as you indicate, you may be heard ; but you must shew the Court some practical end. Capt. Russell — I must leave it to your Honors ; but I wish to apply under the 35th clause of the Law Practitioners Act of 1861. That clause provides that nothing contained in the Act shall affect the jurisdiction of the Supreme Court over a solicitor of the Court, to remove his name from the roll, to suspend him, or to take any other course, upon reasonable, cause shown. Mr Justice Chapman — That requires a motion. Capt. Russell — I am prepared to make any motion your Honors like. Mr Justice Chapman — We do not "like or dislike any motiotf properly made in Couit.

Capt. Russell — Your Honors, the whole of my cases have bren very much prejudiced by my employment of Mr Smythies, who was formerly in the office of Howorth, Barton, and Howorth. But I must say that Mr Smythies has been dragged into it, from 'one step to another. My affairs have been purely with Mr Barton. Mr Smythies told me, when first I went to him, that he could do nothing more for me than act in the taxation of costs ; but during my absence in Melbourae^in orfler to protect me, Mr Smythies made an affidavit, and that has involved him in the whole mess, and I suppose he has been compelled to go on with it. Mr Smythies's affidavit was meant to protect me in my absence, against. an affidavit by Mr Barton. Mr Justice Richmond —This affidavit of yours is simply a history of your dealings with Mr Barton— that is to say, just a narrative of transactions. Capt. Russell — A species of narrative, your Honor. The charge I make against Mr Barton is — . Mr Justice Chapman — Again, what do you move for ? Capt. Russell — For a rule that he shall answer my affidavit, and shall show cause why he should not be punished for his conduct in his capacity as a solicitor. Mr Justice Richmond — The Court is of opinion that it cannot grant you such a rule. Upon the face of this affidavit itappears that the charges which you make against Mr Barton have already been

investigated in various ways — that they have been before this Court or the Magistrate — and that they include a charge of perjury. It i 3 settled that such a charge as that cannot be made against a solicitor in this way — that it. is a charge of mucn too serious a ,natu*e to be made on such an application as this. Capt Russell — Will your • Honor allow me to read a portion of my affidavit ? Mr Justice Richmond — I have read it

all, and your time is past now. We are of opinion that this application cannot be eritertaiued, on the ground I have stated. An attorney cannot, upon a motion for an answer to an affidavit, be called upon to answer a charge of perjury ; and the reasons why he should not, are still stronger when the charge has already been made and answered in*thc proper manner. I should be very sorry to dis-

courage any person who thinks that he has a cause of complaint against a solicitor, and I am quite sure that all respectable solicitors would regret that there should be any such discouragement ; but it is impossible that we can advise — it would be improper if we did so — as to the best shape into which this motion could be put; and Mr Russell having made his application in- the specific shape in which it is now before us, we are obliged to say that we cannot entertain it. Mr Ju&tice Chapman — The Court never, I believe, calls upon an attorney to answer affidavits, where they disclose an indictable offence of any kind. Your application, as you will see, is to a very summary jurisdiction of the Court ; and the Court never exercises that jurisdiction where an indictable offence of any kind whatever is involved. Again, the Court cannot on any occasion take into its hands an affidavit or affidavits, offered by a private person, and then yield to the solicitations of that person that it will adopt its own course, or suggest the course that should be taken. You must ascertain, first, what remedy op power you have ; and then you must make, upon proper affidavit, a specific motion to the Court. That done, you will be heard.

MANDAMT3S.

Mr Justice Richmond said that the Judges had considered the application by Mr Smythies for a rule for a mandamus to the Resident Magistrate of Dunedin to hear and determine an information by James Ure Russell against George Elliott Barton, for perjury. Though he, for his

own part, by no means felt satisfied that the rule should be made absolute, yet there appeared sufficient ground for believing that jurisdiction existed, and for granting a rule nisi. "To hear and determine an information " was, to a lawyer, a senseless phrase ; and the rule would be to call on the Magistrate to show cause why a mandamus should not issue to hear the charge. Mr Smythies submitted that it was usual to grant a rule absolute ; cause being shown upon the return of the mandamus. Mr Justice Richmond : Clearly not ; at all events, the Court thought there should be only a rule nisi. He would state one of . several doubts in his mind as to the rule being hereafter made absolute. It appeared that the Magisti ate refused to hear the charge, upon the preliminary objection that it was too vague. Upon the face of the affidavits, Jie was strongly disposed to think that the Magistrate was right in so

ruling. At all events, the affidavits did J not satisfy him that the charge was sufficiently specific. He thought that a Magistrate, at a preliminary examination, was entitled to require that the charge should be rendered to a certain extent specific ; but, of course, it would be absurd to require the same strictness in an information as in an iudictmenfc. It appeared that expressions did fall from the Magistrate which rather tended to show that he was confusing the requirements of an information with those of an indictment ; and, if so, he was to that extent wrong. Rule nisi granted. Mr Smythies asked when the rule would be returnable. Neither Mr Barton nor Mr

Strode were in Dunedin at present.

Mr Justice Chapman : It will be an ordinary four days' rule; and it may be bwa ai soqb after ss in coay^lont.