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THE WARD-HISLOP TROUBLE

The following evidence was given before the Legislative Council's Committee on the above matter :

The following is the statement by Judge Ward, and takes the form of a memorandum in reply to Mr Hislop'a memorandum of the 28th May, 1889: I desire, in the first place, to point out the grave unfairness of printing Air Hislop's memolandum under the heading * Correspondence between the Government and Mr District Judge Ward' without my ever having seen it, aud consequently without giving me the chance of replying to it—an unfairness which was accentuated by the unusual course taken of sending a copy of this so-called correspsndence to every member of the legal profession in the .colony. I have to ezpress a hope that in j •wr.mon honesty the Government will cause a «oj*y of. my present memorandum to be similarly circulated. I shall now proceed to deal with Mr Hislop. He denies that for a j considerable part of the proceedings he sat on i the bench behind Messrs Newton and Creagh. I ean only say that I saw him there frequently, and that he was so often in Court, and in .consultation with the counsel, that I took it for granted that he was acting as solicitor in the «ase. Messrs Filleul, Begg, and Bartleman will probably be able to give evidence on this point. The two latter informed me that towards the <end of the oase Mr Hislop was suggesting questions for Mr Newton to put to the witness. Mr Hislap states that it is not true that the proceedings (to have Christie released) were initiated before the signing of the petition. I stated that the firm of Hislop and Creagh were taking such proceedings on ithe Uth April, the date of the letter! forrardisd tome by Mr H.'slop with a copy of, the petition, which is correct. I may observe here th*t information has reached me that 3fr Newton drew this petition by instructions from Hislop and Creagh, and made a charge agiinßt the ftrm for drawing It. The draft in such case •would, of course, be engrossed by His op and Oretgh's clerk. Mr Newton will bo able to state if thsu is correct. Mr Hislop next states that "it is tot true that he acted as Mi'ister of Justice." On the absurdity of this denial I need not comment. Had he sent merely the usual request for a report he might have contended that his aotion was merely forir.%l, tut the tone of the letter was most extraordinary, aa were the requests contained in it, which last were palpably made in the interests of his own client. Mr Fergus, too, gives his assurance that Mr Hislop acted in »o other i capacity than that of a Minister of the Crown throughout the whole case (see letter j 80th April, WB9), and clearly his performance was not one of the duties of a Colonial Secre-1 tary. The next statement deserving comment made by Mr Hislop in that he " ascertained what has now been admitted by the Judgethat his statement of facts when sentencing Mr Christie was incorrect, and therefore the defendant was unjustly aaffering." I hva never made any such admission as the foregoing; but even if any error had bam made in summing j the facts, every lawyer is, or ought to bo, fully aware that in deciding ou the validity of this order the question is not what reasons were given by the Judge for making it, or what facts were stated by him at the time, but whether the j evidence given in Court will support it. The order in this ease simply convicts Christie of having, on the 23rd day of May, 1889, with | intent to defraud the Colonial Investment •Company, caused a promissory note for L 234 ((his property) to be .delivered to Messrs Maokwras end Hazl6tt. Nothing is said oi the wheat for which tfoe promissory a«te was given. That the eviden** before the Court supported this order there c\n • >be no question, Spence, Christie's bookkeeper, sjroved this. He sold and delivered to the I €«thland Milling Company the wheat of Samson, Aikenhead, and Irvine. Bee, the storeficeeper to whom Mr Hislop ncferß, was callod afterwards and did not contradict jt. I do not 'think be wan questioned on die point, as he <would have heen had any doubt etisted. Christie was apparently entitled to the proceeds, M Samßon's wheat, but that_ of Aikenhead and ' fiwine was, according to Christie's written state<ment, under equitable lien to the Colonial Investment Company, who held their bills in nayment for this wheat. Ctaistje obtained «rom the Southland Milling Company a promissory note for L 234, the wheat being sold on the 7th April. He had previously bought from > Maefcerras and Hazlett certain sacks, but as he give Iks own promissory note in payment it is •slear titat for them the Colonial Investment Company were not responsible. In order to *»y this promissory note of his own fee caused to be transferred to Mackcrras andHazletton tka 28rd May the promissory note forL234 gwso by the Southland Milling Company. This «>te was in part his own property, but as be was clothed with a trust #s to a portion of the proceeds in favor of the Cojonlal Investment Company, who were to receive them, and ot Aikenhead and Irvine, on whose behalf they were to be received, there cannot be a doubt of the fraud of this transfer, or of the faefc that it cornea within clause 171 of the Bankruptcy Act. Mr Hislop, however, contends that there was no fraud or embezzlement, as the evidence showwi Christie was the agent «f tits company. The evidence is the other way. Christie was liable on endorsed bills for every shilling advanced by the company. The company discounted these bills at 9 pw cent., and Christie charged more than double that interest to his clients. The agent of a finance company does not accept personal responsibility for sums advanced through him. .Doubtless Chrißtie had dealt improperly with the securities before this time, fcut hj < bud fu'l notice at the close of 1887 that suah dealings would no longer be permitted. Moreover on «be 2nd May he bad openly broken With the .Colonial Investment Company. He had set the ■directors all at defiance j he lad refused to (hand •over the proceeds of their tern-Men or t.» assign tfchem; and the directors constquently bad recourse to the Supreme Oourf, and obtained an inluaotion forhidding his further do ilmg witfc their property, wfoi* injunction was wryed on JUay27. la the face ot these facts Mr Hislop

states that Christie, on May 23, still remained their agent, and had still power to appropriate 'heir money to the payment of his own promissory notes. I can only view this contention by the light of Christie's statement in the witness box to the effect that ho transferred this promissory note to Mackerras and Hazlett by the advice of Messrs Hislop and Creagh as his solicitors.— (Vide 'Finance Journal,' 181.) The reference in my letter of May 14 to the ground which tho rule nisi for habeas was moved for is a simple statement of facts'. We have in this case the Colonial Secretary on one side, solicitor for a convict, instructing counsel to move for a rule for a habeas corpus to release hid client from gaol; on another bide as Minister of Justice, demanding my views. " by first available mai l ,"°uoneof the points to be argued in support of such rule; and, laßtly, instiuctirg counsel hv the Crown to appear for tho gaoler holding tho convict in custody, but not to oppose unless he thinks fit. I forboar to characterise tho position further. It appears from Mr Hislop's recent statements tuit, whilo acting as Christie's solicitor, he interfered with the clerk of the District Court at ramaru, and in effect directed him to refuse to obey any order of myself as Judge. "With respect to altering the warrant already issued against his client or issuing a fresh ono and to refer to the Minister of Justice who could have no possible authority to interfere, the alterations or fresh warrant directed by me wsre simply in correction, and to prevent his client's escape from punishment. Mr Filleul's evidence will probably prove these points. Kven during tho ten or twelve days Christie spent in gaol his treatment there caused a public scandal. I am told that not a single prison regulation was enforce.) in his rise. When Crow and M'Leod, two fraudulent bankrupts who were ultimately released on habeas corpus, ward imprisoned at Invercargill they were dressed and put to woik, in tho usual w.iy, but they wore not clients of the Colonial Secretary's. I need hardly point out that in tho case of Christie his release was in no w iy due to his innocence, but simply to the fact that the warrant of commitment directed him to be imprisoned in a police gaol instead of a prison. Mr Hislop next accuses mo of convening myself "into a private traducer of Mr Christie.''and in effect states that it is scandalous that I should ask the Minister of Justice to consider tho conduct of his client during any other time than that which he alleges especially referred to in the third clause of the petition—viz , during his reemt residence in Oamaru. Mo special term in re? ferred to in the clause in question; but even if it were I am uot aware that petitioners, by reference to a particular period of time, are entitled to restrict the report of a Judge to such period. Mr Hislop's charge, however, is fully answered in tho following paragraphs of my letter of tho 14th May ;—" In your despatch of the Bth May you in effect charge me with eiideavoring to bias your decision in tlii* by a private corammiicition respecting Christie's dealing with matters outside the charge against him. If you refer to the date of this private letter you will find, I think, that it was written somo days after Christie had been released from gaol, and prior to the receipt of your depitek of the 14th April. After Christie's releaee I certainly deemed that tho matter was ended as far as lie was concerned, though probably not as respected Mr Hislop and myself, forasmuch as, according to Mr Hislop, Christie had a right to appeal to the Supreme Court, the exercise of which was not prevented by the writ of habeas corpus, and had not chosen to ueo that right. As to the act in respect of which ho was convicted, in my opinion the intent with which that act was done was clearly proved and shown by the evidence as stated in my report, as according to his own confession he had been trading with utter recklessness and gross dishonesty during the four years preceding his bankruptcy, and had six months bafore filing deliberately embezzled the property o: ono of his oU»nt", to whom ho gave a release whioh he knew to be fraudulent and void; and as ho had during the above term succeeded in incurring debts to the amount of nearly L23,C00 after deducting the value of all securities, whilo he only produced L5;50 of aasets for division among his creditors, it certainly never occurred to me that you, in a quasi judicial capacity, might deem him a deserving recipient for a fr e pardon, Had I thought this pro'oablc, I should certainly have inserted in the addenda to my report word* to tho effect of those to which you refer, which were in full as follows:—'lf you wish to inquire into Christie's antecedents you will find him very well known in Wellington. He was m mager of tho Colonial Bank there, and executor to the will of Mr Crawford, an old Wellington merchant. Sir Robert Stout conducted the proceedings against him on behalf of Mrs Crawford.' I vould hwß inserted words to the above effect for the following reasons :—ln reporting on a conviction in bankruptcy it is impossible for a Judge to restrict his report purely to the crime of which the bankrupt has been convicted. Tn order to cnihlo the Government to judge of the propriety of remittjog any part of a penalty inflicted, an account of the bankrupt's trading thould bo given, and if in addition to what appeared in evidence at the trial it be known to the reporting Judge that previous legal proceedings affecting the bankrupt's char ractor, and displaying his pecular views of trade, h*ve taken placo shortly before tho term to which tho evidence has been directed, it ij quite within the scope of tho Judge's duty to indicate such proceedings to the Minister of Just-'c?, lewirg him to make such further inquiry as ho may deem fit. In the present case this is especially necessary, inasmuch as in tho third paragraph of the petition the petitioners refer to their intimate knowledgo of Christ'e. and of his dealings generally, a3 a ground for their belief (on which they ask you to proceed) and that he fccted jn thp special matter referred to without iutpnt to .defraud. The question o{ Christie.'* character,,an/1 of the nature of his former dealings is, therefore, distinctly raised by the petition itself, The indication of former proceedings given by me beins; thus clearly required, the manner of giving it w,is not a matter of serious importance. Your charge against me is, therefore, utterly unfounded. I forward herewith a second addendum to my report which will probably prove sufficient." The insertion of tho addendum referred to by Mr Hislop was simply due to my desire that in tho further proceedings which were certain to occur between him and myEelf he should not be able to charge me with neglecting to answer a relevant question contained Jn his letter. The quo3tion of a freo pardon i considered practically at an end on Christie's releise from gaol, as has proved to be the case. Had I deemed otherwise I should not have mentioned the previous legal proceedings in a private letter, but as Mr Hislop endeavored to discredit their existence I may briefly state the case to which I refer, in order to show how far it is desirable that the Government should be made aware of it, aB a specimen of Christie's dealings. During Christie's residence in Wellington, as manager of the Colo- • nial Bank, Mr Geo. Crawford, a relative of hi* wife, died, leaving him eseoutor of his will, and leaving a widow and a son. After acting for some time as executor Christie obtained from the son an assisnment of one-half of the whole property by the father, the sole consideration being Christie's financial guidance a3 trusteo and executor. Legal proceedings were subsequently tokon, They were referred to arbitration, and tho deed was ju effect sot aside by the arbitrators as fraudulent and void. Sir -Robert Stout can give full evidence of this matter, in which ho was professionally engaged for Mr Crawford. Christio'fl .engagement with the bank terminated sh jrtly after, I have now to refer to matters more closely persoaal—viz,, the connection existing between the Colonial Investment Company and myself, which Mr Hislop contends rendered my fitting indefensible and my decision void. It ia somewhat difficult to comment I terioußly on this connection. There are m iny cases stating what facta must be conbide'ed to prove bias in the mind of a Judg', and what interest in a suit disqualifies him from hearing, but the theory that tho fact of a Jndgs being indebted to a suitor, prosecutor, or creditor appearing In bis Court him from sitting or deciding on any case where they are concerted is an entirely now development of Me'ssrs Hislop and Fergus palpably invonted for the purposes of the pr-'sent case, and wholly unwarranted by any statute or decision of ary b'nglish Court. If a Judge gives a decision without reasonable or probable cause, then his motives for giving that decision may be questioned, and malice or undue influence may be shown; but the mere fact of such indebtedness as above mentioned would not alone be sufficient to show it. Even in that case Mr Hislop's contention amounts to this—that inasmuch as one of Christie's creditors was one of my own, my jurisdiction as Judge of the Bankruptcy Court was ousted. Touching the mortgage given by myself to the compwy, I have no doubt it was due aB stated, and had Mr Hislop examined the reg'stry further he could have discovered sundry other mortgages between other parties at Dunedin which haye been due for the last fifteen years or more. If a finance company is satisfied with the security and with the rate of interest they seldom call in their loans. Cer tainly no hint of repayment being desired has ever been given to me. On the contrary, since the publication of Mr Hislop's memorandum the manager of the company assured me that they baa no intention of calling in the loan, being fully satisfied with the security, which was valued last year for the purposes of tffecti'ig an exchange of part of the land with the New Zealand Agricultural Company. This exchange was agreed to by the Colonial Investment Company as far back as June, 1888, but its completion was delayed by complications arising from an assigned leafo an* a bankrupt tenant, as to which Mr Downie Stewart cangjve evidence, if needful. Tne loans wh'ch the Colonial' investment Company bavo been anjtious to C»U >» *f e & 08 ? iff wb 4 Christig

has been concerned, with Hislop and Creagh (is liis solicitors, which, according to the last proof of tho company in Christie's estate, have resulted, after realisation of all securities, in a lohs of 50 per ceut. on the amount due. Aa to the property tax valuation, it may be a question for the Committee to decide how far it is proper for a solicitor to avail himself of the position of Colonial Secretary in prying into the privacy of these valuations, and for that purpose I trust that all communications on this subject between Mr Hislop and Mr Sperry, either public or private, will be produced. In the case of Regina v. Meiklo, I may observe that I had no idea when I agreed to take the sittings at Invercargill for Mr Justice Williams, who was detained in the North on other business, that the prosecuting company was a creditor of my own, but had I known of the fact it would have made no difference in that arrangement. The case was one of systematic sheep stealing, and the evidence most conclusive. In the case of the Queen v. M'Lean, my judgment confirmed the action of the late Mr Justice Johnston, and I have never had tbe smallest doubt of its justice. I may remark that my debt to Mr M'Lean was secured by mortgage. Freely paraphrased, you cannot meddle with tho Supreme Court, but you can bully a District Judge. I should have thought the same prinoiple should have been acted on in both cases. Mr Hislop proceeds:—"These cases of Meikle and M'Lean occurred when Mr was a Judge of the Supreme Court, and i; m»y therefore be questionable whether you in your capacity of Minister had a right to call him to account, but no such question can arise when he is guilty of such improprieties as an officer under your control for whose conduct you aro responsible to the couutry." Mr Hislop closes his memorandum by stating that whatever needful action is required no officer bliouM bo allowed "to permit the administration of justice to come under suspicion by sitting in a case where ho may be taken to be swayed by considerations personal to himself." Hitherto, the question whether a Judge must "be taken to be swayed by" improper considerations has been decided by law. Mr Hislop apparently desires to sub.titute Lr law tho opinion of the Colonial Secretary and Minister of Justice. (2) "To address a Minister in a judicial matter by a private letter." — " This point has already been referred to." (3) "In tuch letter or by any other means to attempt tj prejudice the mind of a Minister by referring to matters outside the charge." (It is oovieus if he does anything of this kind his own mir.d muse be by tne same consideration.) Tho toleration of conduct |m variance with these principles must strike at the ro..t of judicial purity—that is to say, that in a report on the case of a prisoner convicted of theft, for instance, petitioning for a freo pardon, if such prisoner has been convicted a doz in times previously before tho Judge or Resident Magistrate making the report, such report must in no way allude to such previous convictions, as such allusions would clearly be ''an attempt to prejudice tho mind of a Minister by referring to matters outside the charge, %nd would strike at the root of judicial purity." I may here briefly draw attention to fchia peculiar tactios adopted by Mr Hiblop in tho matter. The petition of Christie to the House of Representatives was, I am informed, draftee} liko the first one by his counsel (Mr Newton) on the 11th June, and I received notice of action on behalf of Christie from Messrs Hislop and Creagh. Subsequently the petition was presented, reprinted at Oamaru, and the scurrilous falsehoods it contained ciiculated throughout the colony. Then the Committee met and proceeded to require evidence, whereupon Meiers Hislop and Creagh to >k out a writ on the 23rd July, and served it shortly afterwards on my solicitors, Messrs Stout and Mondy. This service wan forthwith published, and the Committee of course declined proceeding further with the petition, in accordance with the u»ual rule that where a legal remedy exists the Legislature will not interfere. Thereupon Messrs Hislop and Cicagb, by tlieir Duocdin agent, Mr Macgregor, discontinued the action, It is unnecessary to point out the objceis of these manrwrtres. In answer to questions, tho Judge said a District Court Judge was removable in case of misconduct, but was not responsible in the discharge of his duties, except, of course, to the Appeal Court. He considered he was perfectly righß in committing Christie a? he dil. An application was made to have Christie admitted to bail pending an appeal, but he (the Judge) had no power to give bail after conviction. Speaking from hearsay, he was informed that Christie when in g*ol " was never put to work, never dressed in the prism clothes, and had his meals from an hotel over tho way. This was after conviction, and when ho was supposed to bo under sentence of hard labor." Supposing the District Court Judge had sat when he should not have dono so. tho matter would have been brought before the Supreme Court, and stcp3 taken to set aside tho decit-iou ; but tho Minister of Juaticf) had nothing to do with that. If he had a shareholder in a company and interested, he wou'd have refused to sit, as hn did in an action brought by the National Mortgage. Company tome time ago. The warrant of commitment was drawn by Mr Downie Stewart. He (the Judge) admits d that he was entitled to a share of tbe blame for not sf eiug the mistake in it, A responsible Minister bad nothing to do with a Judge's judgment unless he could prove misconduct of a very extraordinary description. To the best of his belief it was the Resident Magistrate in Oamaru who informed him how Christie was being treated in gaol. Mr Reynolds, M.L.C., said that Judge Ward's liokonui estate, upon which the Colonial Investment and Agency Company had advanced money, contained 512 acres. He would not hesitate to advance LI.OOO upon it, and po'sibly a little more. In answer to Mr Oliver, he eaid tho l»nd was not infested with rabbits when he saw it last.

William Gabriel Fillcul, clerk of the District Court at Oamaru, was examined on the 23rd. He gave evidence as to telegraphing to Judge Ward about tho mistake in the watr»nt, and receiving instructions first to alter the name of the month and then to issue a duplicate order with the right date. Hh also got a telegram from the Judge: " Ask Inspector of Police if <hero is a 'prison' at Timaruj if not, insert ' Dunedin.'" As the order had been sent awav ho was not able to do anything. On the 18th April he met Mr Hislop in the street, and Mr Hislop asked to see the last-mentioned telegram about the alteration of the prison. He showed it to him, a p d Mr Hislop said something to him to the effect that, "If I altered these orders in that way, I would get into trouble." I replied that "I could hardly get into trouble hy obeying my superior officers." He then Baid : "Oh, but there is someone here now abovo your superior officer." I took that to ho a reference to himself as one of tho Ministry, I replied: "I do not dispute your authority in the least,-but I have never had any instructions from you." He then said " I will give you some instructions," and wrote on tho back of the telegram : " Mr Filleul telegraphed to Mr Watd stating that his telegram had been submitted to me, and that I have instructed you to do nothingpending instructions from Wellington." I told Mr Hislop that it was not much use my telegraphing to the Judge, as I had already told him I could do nothing; but if there were sny further communication from the Judge I would comply with h?n instructions That was all tha"; passed. _ I did not do anything. I did not communicate any further with the Judge on the subject. In answer to Mr Stevens wj'ness said Mr Hislop's reason for doing this was that the warrant ought not to have been altered after the Judge left the Bench. He considered that as Mr Hislop was a Minister he (witness) ought to carry out his instructions. He inferred that as much for his protection as for anything else the matter was to be referred to headquarters. He saw Christie in gaol, and observed that he did not seem to be treated like an ordinary pi i oner, and wore his ordinary olothes. He saw Mr Hislop in Court whilo the case was going on, but did not see him interfere in any way. Mr Larnach deposed that Judgo Ward's Hokonui property was ample security for LBSO. J. S. M'Donald (paoler at Oamaru) stated that as Christie was ill when he was brought to the gaol he was kept in a warm room in rursu ance of the instructions of Dr Niven. He was employed in writing up the police index book, Mr Sumpter, the Visiting Justice, having made an order to that effect. There were no clothes in the prison big enough for Christie. He had Christie examined by two doctors, and took every precaution, bucause he feared he would commit suicide. The food friven to him was the same as that supplied to ordinary prisoners, and he hid no liquor. '

Mr Hislop was examined on the 26th of August. He gave an entirely different accourt of what took place between himself and Mr Filleul. When Mr Filleul told him of the Judge's instrnctions he said: "Well, that iB rather a serious matter. What do you intend to do ?" Mr Filleul said he supposed hn would have to obey the Judge's orders. Ho (Mr Hislop) said: "Tbat would not protect you. The Judge had no power to do such a thing." He pointed out also that the Judge could not act when he was outside his own district, ftir Filleul explained that he could, and showed him an amendmentof the Act legalising it, After further conversation, Mr Filleul said he would obey if Mr Hislop told hm not to alter the warrant or no«; to do anything further in the matter. Mr Hialop said he would not do that, but wjuld telegraph to the Minuter of Justice to get the Solicitor-General's opinion. In order tlut Mr Filleul might not get into trouble, ho e .dorsed the document, as had been stated. He made the endorsement because he did not want the clerk to get into trouble—Mr Filleul looked so extremely uncomfortable over the whole thing. lieutenant - colonel Hume, Inr-peetor of Prinonp, was examined as $o correspondence relating to the prison at Oaroaiu.

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Bibliographic details

THE WARD-HISLOP TROUBLE, Issue 8004, 5 September 1889

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4,775

THE WARD-HISLOP TROUBLE Issue 8004, 5 September 1889

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