RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 2130, 2 December 1868, Page 3

RESIDENT MAGISTRATE'S COURT.

Ti;f-.sijav, Dkckmiier Ist. (Before A. Cbetbam-Sirodo, Esq., R.M.) Djci;nkk ness — John Call ighan was charted v ith thin offence. He stated that i ho was fined or imprisoned, ho would lose his passago by tho Lord Ashley. Ho was ordered to be kept in custody until the sterner nailed. David Graham, „an old offender, was fined 30a for drunken and disorderly conduct. No Lamis—Charles Eccles, for neglecting t-> keep * light burning over the principal entrance to his licensed house, was fined 10s and eonta. Conkidknt of Innockncb.—-Samuel Rainford, a boy, w s brought up on remand, charged with stealing a gold chain from a mato on board tho p.B. Comerang. Tho Com.iiiss;onor of Police applied for a further remand, the prosecutor not having arrived from Canterbury. The prisoner did not object to a remand. Ho said he knew woll that no ono could prove the chain to bo stolen, and he w^s confident ho could prove his innocence. The remand asked for waa granted. Tiik NoTomous Mklbociise Cako • SiiAiti'Kit.s.—l^aac Coletnin, alias Samuel Thomas, and Martin Fitzgerald, alia 3 James Mitchell, w ere charged with having, onthe 3rd of September last, at Melbourno, combined and conspired and obtained by cheating the sum of LI 85, tho moneys of ono Charles Barr. The Commissioner of Police said that the prisoners had arrived hero from Melbourne by the Bob Roy, having smuggled themselves on board, and having concealed themselves until the ves«cl was out at aea. When here thoy had attempted to change Victorian notes for largo amoun's. Ho read from tho Victorian Police Oazettc the particulars of tho charge against them, and their descriptions. When arrested, Fitzgerald, who was blind of ono eye, wore goggles. A collar found in the poas. saion of Coleman, aias Thomas, was marko-' with the initials ST, which still further fixed hia identity. In the possession of the prisoners had been found a BharpeFs pack of cards. They wore peculiarly made, all tho low cards being longer than the rest. Theso wero used for "cutting." Ho asked that a remand for a short timo might bo allowed. Mr Wilson, who appeared for the prisoners, ravle no objection, and thoy were remanded until Thursday next. Fmkiiobncy Summons—ln the coco Davis v. Davidson, an immediate summons had been granted, the defendant being about to leavo the colon /. The claim was 1.5 7s, and judgment for the amount was obtained. Tho plaintiff wished to stop tho defendant but was told that it could not be dono, the debt being undor LlO. (.lIARIiK AIJAINST MR KMYTIIIKS.—A JIF.AVY FINE Henry Smythies, Barrister and Solicitor, was charged, on the information of John Jones with having been guilty, onthe 25Ui of November last, at Dunedin, "of unlawfully (after tho passing and coming into force of the Law Practitionora Act Amendment Act, 1800, being a person who had been heretofore convicted of forgery : To wit, at the C-ntral Criminal Court, in the County of Middlesex. United Kingdom,and not regarding tho said stituto practising at and before the Supreme Court of Ncv Zealand, at Dunedin, aforesaid, as a Barrister of the said Supreme Court, in a certain case depending in the said Court, wherein ono John Richard .>ones was laintifi", and Frank Alf ed Orbell was defendant, and as such Barrister as afores dd appeared and was heard for tho said Frank Alfred Orbell, contrary to the form of the Statute in such caso mado and provid d, whereby tho said Hon ry Srnythies had forfeited and become liable to pay as penalty LSDO."

Mr James Smith and Mr Macassey, appealed for tho complaii ant; and tho defendant, who pleaded not guilty to the chargo, conducted his own defence.

Mr Smith said that tho prosecution waa instituted undor tho 3rd clause of tho Law Practitioners Act Amendment Act, 180G, which said, "No person who has or shall havo been convicted in any part of the British dominions of forgery or perjury or subornation of perjury shall be enrolled or admitted to practice or shall practise as a barrister or solicitor in Now Zealand, and if any percon who has or shall havo bei n so convicted shall at any tirmi hereafter practise as a barrister or solicitor of the Supremo Hourt of Now Zealand such person shall bo liable to pay a penalty of LSOO for every such offence. Provided always that nothing herein contained sliall except aa is herein specially provided be deemed to alter or affect tho existing powers of the Supremo Court or rfliy Judge thereof to refuse to enrol or admit to practice as a barrister or aolici'or any person whomsoever or to sff.ict tho summary jurisdiction of tho said Court or any Judgo thereof orer hamsters and solicitors : Provided also that nothing heroin contained shall apply to any person who has obtained a freo pardon for such forgery or perjury." The action to recover tho penalty was ' rought in accordance with tho 16th clause of the Interpretation Act of last session. It enacted that " All fines penalties forfeitures or sums of money which under or by virtue of any Act now or hereafter to be in force are or shall be authorised or directed to be imposed on any person shall and may whero no other form or mode of procedure is or shall be prescribed by such Act for the recovery of tho same bo recovered in a summary way beforo any two Justices of the Peace in the manner provided by The Justices of the Peace Act 1866 so far as tho Fame relates to summary convictions or by any Act repealing or amending tho samo or for like purposes " It would be shown that tho accused had practised as a barrister recently ; and it would bo necessary to show 'he fact that bo had been convicted of forgery. This would b-i dono by the putting in as evidence the certified copy of the trial and conviction. The on'y evidence then wanting would l-o that of idontity ; but, having adduced that, cvidenco, he had no doubt whatever but that judgment for tho pena'ty must bi given. The following evidence was adduced :— A. A. Catomore, examined by Mr Macassey : I am tho Begistrar of the Supreme Court of this district, and have ' e-n bo since the let of Janua--y last. Tho Supreme Court sat in Banco on Wednesday Inst. Mr Justice Ward presided. 1 recollect an application being made to the Court in an action, in which John Jones was plain-t-ff, and Frank Alfred Orbell was defendant. The application was to dismiss tho api-lcation for want of prosecution, and was mado on behalf of the defendant Or-oil. Mr Smythies thi defendant in this prosecution made it on Orbell's behilf. Ho appeared in tho costume of the bar. Theap lication waaheard and was disposed of in open Court. It was refused I know Mr S eythies's handwriting, and I produce a letter which was written by him. It is apparency addressed to the Editor of the Daily Times. I believe it was produced in a case before the Court—the case Russell jj. Barton.

By Mr Smythies : Tho application was to dismiss action. There had been a new trial Tho cr.se was an action of ejectment, which was tried at the la-t September Session. A new trial was moved for, and tho rnlo was mado absolute on the giound of fresh discovery of evidence I produce correspondence between Mr Chapman and Mr J. Jl. Jones referring to tho property. I also produce other letters r. spectmg it, and an account sales, dated December Ist.—[Theso documents were handed in to tho Bench] I also produce affidavits filed by Mr Jones. Ttie correspondeneo now put in was given in evidence by affidavits, at tho motion for now trial. I issued the certilicate to you to practise aa a barrister and solicitor this year. The document produced is it. It was taken out on tha 14th of January. 186S, and tho fees have been paid. Tho documents you hand me aro your admission as a barrister and solicitor. The fees go to the support of tho law Library which belongs to the Government.

John Jones : Inm the informant in this case and know tho defendant. I saw him

in the Supreme C jurt on the 2o:h ot November last. In open Court ho m->v--d to obtain tbo dismissal of »n ncfciouf-ir wmfc of prosecution. He wore his wig and gown. By .Mr Srnythici : I do uocfs-I myaalf a great deal aggrieved by your pract sin/. b".t I think you would be better out of it. When I rnido use of the words a great deal, I m;a;it not at all beotuse I am tn a positio-it*li^at yoa. If it was apo >r rnau h-j would not b > ablo to do it. I laid this mf jnnxtion because I think yo-i in a wr mg position. I read the whole of your tri il at home, and I do not think you ought to be a member of the New Zealand Bar. 1 do not know that 1 read a pamphlet you published on tho Bubj-.-ct. 1 might ; but I don't think I did. I do not think I read any of the documents you laid before tho Judges previous to your admission. After you took your trial last year, I saw some correspondence which you published in tho papers ; but beyond that, I havo not seen any papers yoa laid bei'orc tho Judges I never mado any application to sec th:m. I never made any appl-cation in Kogla id to ascertain the truth of what took place. I saw the records of the C>urt here. Tlrj caso Jones v. Orbell was an action of ejectment brought by my son to turn Mr Orbell out of the farm he occupied. Tho farm was leased by my son for 14 years, from about Ist of January, 1805. I took a mortgage of that lease from Urbcll about December. 1805. 1 had that mortgage sold by the Registrar on the Ist September, 1800.

Mr Smith objected to tho cross-examina-tion. Ho was inclined to allow every latitude ; but theso transactions could have no possible bearing upon the present case. Tho defendant ought to keep something within bounds.

Mr Smythies: I submit, your worship, that a common informer is of th-s same grade aa a common hangman, and cm he treated as a common nuisance. I have a right to cross-examine him as I please. Mr Strode : The Bench cannot allow these remtrka. We are extremely anxious that in your position every latitude should bo given you, but the course you arc pursuing will lead to no good. Mr Smythies : Very well, your Worship. But an informer is

Mr Strode : Say informant. Mr Smythies :It is immaterial to me. I urge that an informant—if that is tho word —is open to cross-examination as to his motives. He says that he personally has no objection to me. and I want to find out tho motive that makes him prosecute me.

Mr Strode: We arc willing to allow you considerable latitude, hut you are going too far.

Mr Smith : The witness's motives havo nothing to do wi'h tho case. What was dono in other ca<ca is not a matter to be inquired into now. Mr Strode : I cannot but agrco with that argument.

Mr Smythies consented to stop tho line of cross-examination ho was pursuing, and the witness, in answer to question-, resumed There havo been several cases between myself and Orbell. You acted as barrister in all those cases. I think you went beyond your duties as a barrister. In what ? In my examination ; and next, some of tho witnesses you brought told mo very curious things. I come here under an Act passed lost session. I read a co; y of it in tho Superintendent's office. I generally real tho Acts. I read it through- I had nothing to do with having it brought in'.o tho Houso. I did not pay for its being done. I woula'nt mind doing it, though, for a public good.

Thomas Calcutt .- J was Clerk of this Court in the year 18G0. Tho papers produced I recognise. I recollect that on tho Bth and Oth of May, 180(5, the information produced, charging Vlr Barton with perjury, was heard in Dunedin. Thu defendant, Mr Smythies, gavo evidence in support of that information, and his evidencu was taken down in writing by mys-df. The depositions wero signed by Mr Smythies. and I now produce them. In cross-examination, ho (Mr Smythies) said, " I was a solicitor in Kngland, and waa convicted of forgery in England as a solicitor." Mr Smythies objected to this evidence being received. A note was taken of lib objection. Mr Smith tendered the certified copy of the indictment, trial, and conviction of tho defendant in London, in 1849

George Bell : I was, in 18CG, Sub-Editor of the Otago Daily Times. Tho letter I now hold in my hand, bearing the signaturo, " Henry Smythies," was sent to that paper for publication, and was. I believe, published. Iv that letter there is tho following passago :—''l said in the year 1817 I joined partnership with a solicitor of thi name of James, at Aylesbury, npon tho terms that I was to have exclusive management, Mr James having an engagement in I^ondon which would occupy some time. lie stated his business to bring in LSOO a year, au4 I was to have half. Mr James returned after an absence of two and a-half years. 1 then divided with him cash nett profits LSOOO, with book debts amounting altogether to an increase of 300 per cent. He then asked mc to dissolve tho partnership. 1 refused. Ho then said he would make mo, and commenced a prosecution in the name of a porson of tbe namo of Loden, for forging his name to a retainer in a suit of Myles v. MyleV Mr Smith said that the records produced showed that tho Henry Smythies therein named had i een convicted of forging tho signature of one Loden, to a retainer in the suit Myles v. Myles. This clewed the case for tho prosccut'ou.

Mr Smythies sad : In -ising for tho second time to answer theso charges, I do so with a feeling of deep regret that I appear hero aa counsel nnd defendant. But 1 feel, and it is very well known, too. I believe, that thoso of my brethren brethren 1 must call them by courtesv—thoso of the prof fsioi who could, who aro able to defend mv cause, are not wi ling ; but would only be too glad to sec the objec: of these pros-entions—and persecutions—attained. 1 could not, therefore, have entrusted my case to anj' of them, and I have not had time to seek professional aid from another pl.'co. I will not refer much to thoso of my brethren who are leagued against me I will nf.t ask whether they pursued a right, a just, or an honourable course ; I ut I will ask if after seeing all tho papers 1 could produce—the pape s tbat I laid before the Judges—after havng read tbem carefully oue by one—thoy then objected to my admission? Yet, have I since received fair honourable treatment? Have I not had to contend with all the opposition thero could possibly b- brought against me ; and is it not directly through them that 1 havo now to come here ? Last ye»r a charge was brought against me. brnncbt by one of my brethren. That charge failed, and now another is brought, and the same opponent appears this time, assisted t-y another of the leaders of the profession. Thoy tiy again now under a now Act, which they got passed through the Assembly on purpose. Tbey cannot deny it. It was carried through by them—or by tbeir friends at their instigation—with the fixed purpose that I might be kept from practising at tho bar. Mr Maca-sey .- 1 hope the defendant intends to bring proof of th s. Such imputations shonld noi l> • cast unless proof in support of them is a-ldu' cd. Mr Strode : I cannot sco that it helps the caso. It had better be.avoided.

Mr Smythies : I la our under the difficulty of bavin-.! to d<-f- nd mv own cause, and my feelings may at times c rry vie away. I trint the t'ourfc wiil bear with me. Itis no 1. my wish to hurt anyone's feelings, but at tho tame t-me, T f--el that I am placed h*rc in a painful position, which I elieve was all planned. lam prosecuted under an Act passed in 1800. under a Section which has already ben read to the Bench. It enfo cos a penalty of LSOO, but does not say to whom it is to be pa-'d. I admit that in some instances prosecution may sabdy be placed and is placed in private hands. But I would ask who is injured by my pr»ctising ns a barrister ? Arc tho public of th s town t Soms time ago I pi-epared a p»ttion to Hor Maj'sty the-<Jieen. praying that » free pardon might be granted to me. Several of

my frtcuds wished to get a petition sent to ' tho Governor, asking him to rojommaud that tho prayer of my petition ba grauvd. It was doae, an Ucvo i hundred signatures wero 0 taiaed without my asking for ono. I k lew littlo about it except that tho -ignatures wore bjm% obtained. Would the puhlic h»ve d >no this if my practising had necn an injury to th-.m? Then. Sir, is th>) Government aggrieved ? As » ion as tho Act was passed la t session, Mr M icas ey wrot<3 asking the G jvormnent to pro-iecite mi, but the Government mfusod, and he is now obliged to do it uimself through his patrons. My putition was forwarded to Her Majesty, with a recom uenda-.io i that it should be granted,'' and Mr Stafford himself told mo that nothing but. a b ire act of justice had boon done to me. I havesmcehad an intimation fro n the Government that tho pray.-r of the petition has not been grante 1, but the reaion has not been assigned. I havo, however, received from friends at homo tho reasons. Ono is, that pardon is never granted after tho expiration of tho period of punishment; and another, that it is believed I am in no danger ; that tho Act, not being retrospective, cannot apply to mo. I have another reason to show that the Governm-nt is uot aggrieved, and that is, tbey have allowed me my admission certificate, and havo received my money. They could not prosecute. It would bo monstrous to receive my money to induce me to practise, aud then to co<uo upon me for tho penalty which must go to tho Crown. When an Act inflicts a penalty it implies a prohibition. I contend that tho Government have consented that I do nt come under the Act. Then is tho real prosecutor aggrieved. He says not, and 1 look upon •his action as one of the most complimentary things ever done to mo in my life. He admits that ho has beon lighting day by day, from Court to Court—a man who was represented by me to tho best of my poor ability, and ho findi now that the only way to success is to reduce me to the very last step ; and bo he turns informer—l beg pardon, informant— and comes here to drive mo out; to tal-o away from mo the means of providing for my wife and family, or for my own o!d x/o. Bnt 1 say the law will not rejo^niso him as a person who should prosecute under the Statute. Then, again, I assert that tho Act, if literally construed, i-i an a surdity. In every instance I practise, it makes a penalty of L5->O. If Mr Jones choso, hoc-iild then make me liable for a million of money—for L 200.000 for practising iv thia Ci urt slme. He could givo your Worship work that would occupy your wholo attention for weeks. Ih this power to be in tho hands of a private individual ? Would the law give a man po« er to take every shilling from mo, an I spend my latterdays in prison? It is ahsurdto think that tho Legislature of this or any other country would put a man in tho positiou to do thia, merely to gratify a personal spleen, or to get rid of a man who stands in his way. Blackstone has it laid down that where a law appears to bo unjust and absurd, it ia not bad law, but no law. Tho Court, when it sees that thero is absurdity or injustice, will make up their minds as to what was the intention of tho Legislature. Then I say that he cannot come hero to lay tho informat on. The penalty goes to tho Crown, and its recovery should be left to officers of the Crown. Another remarkable feature ia that tho Act of 1808, which gives your Worship jurisdiction, does not provide for the non-payment of tho penalty. You can only, by the Resident M igistrates Act, give mo three months' imprisonment, and ono month for every L 5. All theso things show that the penalty should be claimed l>y tho Crown. lam perfectly willing to take my chance with tho Government, but 1 submit that no other person has any right whatever to bring mo here upon this charge. But the main ground of my objection ia that I am not in any way liable under tbo Act. It was passed for mo, but the purpose has failed. It is abhorrent to British feeling to nass a retrospective law, and when ono is pissed, it must be in the clearest possible wayand in express w-ords. I ask yon to take particular notico of tr.o words " shall bo enrolled or admitted to practice." Is that distinctly retrospective ? It may bo asked what tho words "shall practise" refer to. That i* easily answered. There is a penalty for each offence, and the "shall practise" secures tho right to prosecute for each offence after being admitted. If tho Legislature had meant it to be j retrospective, it would havo closely followed j the English Act. But it docs not do so. [Mr Smythies here cited a largo number of authorities in support of his argument, and referred to a previous action to which he had demurred, and whero tho learned Judgo (Chapman) had not calhd upon him to an swer arguments. He then read an extract from a letter written respecting his caso by Mr Parsons, tho barrister, quoting tho arguments there made use of, and applying them to tho present caao ] Ho theu proceeded to say—l have nothing further to remark but this, I think I have shown that, neither in justice nor hone-ty is my conviction required. I think I havo pointed out that none but the Attorney-General can prosecute me; that the Act passed at the close of last session has no control over me ; and I have to thank the Bench for tho very kind and patient attention they have given mo.

The Bench consulted for a few moments, Mr Strode then said—" Tho Benoh aro of opinion that the words of the statute are clear ; that under the .'!rd section the defendant has clearly been guilty of tho offence with which he is charged. We havo, therefore, no alternative but to impose a penalty of LSOO. avith 15s Cd costs.

The Court was then adjourned,