PROCEEDINGS IN THE COURT OE APPEAL.

D.—No. 28

29

upon Mr. Smvthies forthwith sent in his bill for £335 to Mr. Soden, and commenced proceedings against him for the recovery of that sum. The action was defended by Mr. Soden, and in order to make it appear that he was liable to pay the above costs, notwithstanding the above-mentioned arrangement on the subject, Henry Smythies then forged a written consent by Mr. Soden to act as next friend, and uttered the forged consent, by tendering it at the taxation of his bill of costs. The jury found Mr. Smythies guilty both of forging and uttering, but a point of law having been raised at the trial, he was released on bail until after its decision. The conviction having been unanimously upheld in the Exchequer Chamber, Henry Smythies surrendered to judgment on the 26th November, 1849, and was thereupon sentenced to one year's imprisonment in Newgate. An affidavit has now been filed by Mr. Smythies, setting forth at length his account of the circumstances of his conviction, denying that he had committed the crime charged against him, and alleging that the evidence given by three of the witnesses at his trial was utterly false, two of them, Miles and Soden, having, according to his statement, been suborned to commit perjury by the third, one Mr. .Tames, formerly in partnership with Mr. Smythies. In support of this allegation he embodies in his statement an affidavit made on the 27th November, 1849, by a person named Fluker, managing clerk to Mr. Kirk, already mentioned as having been substituted as solicitor in lieu of Mr. Smythies in the suit of Miles v. Miles. The only points in this affidavit that appear to raise any doubt as to the guilt of Mr. Smythies are, that in an interview with Air. Soden and the adult members of the Miles family, he (Mr. Fluker) states that he treated the- existence of a written authority from Mr. Soden to Mr. Smythies, in the suit of Miles v. Miles, as an admitted fact; that J. Miles, in a letter dated 24th April, 1849, stated his belief that Soden had signed a paper to that effect; and that there were existing certain quarrels between Messrs. James and Smythies. Against this, however, stand the facts, also set out in Mr. Smythies' statement, that on the trial Soden positively swore that he had signed no such paper, and J. Miles swore that he had never seen one signed, and also that Mr. James appears to have had a direct and very considerable pecuniary interest in disproving the alleged forgery. Moreover, it does not appear that any means were taken to prosecute them for the alleged perjury, nor does it seem that the affidavit of Fluker, though made the day after Mr. Smythies received sentence, was then deemed sufficient ground even for an application for .a remission of any part of the imprisonment awarded. Mr. Smythies further relies on his own statement that, owing to an interview between the Secretary of the Incorporated Law Society and himself, inquiries were made by the Committee of that Society which resulted in their deciding to take steps to strike him off the roll of solicitors at home. It must be observed, however, that this statement is wholly uncorroborated, except by the fact of Mr. Smythies' name remaining on the roll, inasmuch as no minutes of any such interview or inquiries, nor any other proof of their having taken place, are produced from the records of the Society, or from elsewhere. And it is by no means unusual for the Society to allow the name of a solicitor to remain on the roll, notwithstanding his being liable to be struck off, and only to apply to strike him off' in the event of his attempting to renew his certificate to practice, which Mr. Smythies does not appear to have done after his conviction. Mr. Smythies then sets out the resolution of the Judges to admit him, notwithstanding his conviction, the circumstances attending his admission, and a series of facts upon which he grounds an allegation of malice against Mr. Macassey, who obtained the rule. It is much to be regretted that ho reasons whatever have been given by the Judges for their decision in the matter. The resolution is in the following words:-— " Re Smtthies : Resolved. " Conference, 27th October, 1865. "The Judges assembled in Conference are of opinion, after reading the petition and the documents annexed (which have been furnished in consequence of a memorandum of the C.J. after last conference), that the Judges at Dunedin, being satisfied with the examination of the petitioner, may admit him, notwithstanding his conviction in 1849, on motion; that the admission shall be in open Court; and that there is no necessity for discussing the merits of the case in open Court unless opposition be offered." " True extract. " Robeet R. Steang, " Acting Registrar of the Court of Appeal." It would appear, from the last words, that the Judges deemed it advisable that no discussion of the merits should, take place if it could be avoided. It seems, however, that there are only two grounds upon which they could possibly have proceeded. The first is, that it was deemed that Mr. Smythies had established his innocence ; the second, that his punishment or exclusion from practice should not be perpetual. As Mr. Smythies contends that the proceedings can only be regarded in the light of an appeal from the order admitting him, and alleges that he has now r laid before the Court the grounds of his admission, it may not be out of place to discuss them now. It appears from tho English cases that the Courts at home, in dealing with similar applications, accept the facts as found by the Jury, saving only in cases where a free pardon has been granted, or a conviction or a judgment reversed. They wili examine into the facts as found, in order to see whether the crime charged is one which renders, an attorney an unfit person to remain on the roll. But those facts are deemed to have been established by the conviction, and it is not necessary, in applying for a rule to strike a convict off the roll, to allege that he committed the crime, but merely that he was convicted thereof. Nor will the Courts take notice of affidavits filed by the convict in support of his innocence, inasmuch as the question of his guilt is considered to have been determined by the judgment of the Criminal Court. If, however, that judgment has been reversed, or a free pardon granted, then, and then only, as far as I am able to ascertain, will the Court examine into facts dehors the record, and admit affidavits in exculpation of the accused. A free pardon, I may observe, would be granted at any time, as a matter of course, upon proof of the innocence of the party convicted. If the foregoing rules prevail in the Courts of England, surely it would be most unwise for Colonial Courts to disregard them, and to proceed to what in fact would be, in the present case, a new trial of a criminal charge disposed of in England, depending for their judgment solely upon affidavits and other documents furnished by the person convicted, under circumstances which afford complete practical immunity from any prosecution, either for perjury or forgery. 8