SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 4744, 2 May 1877, Page 3

SUPREME COURT.—CIVIL SITTINGS.

Tuesday, Mat Ist.

Slßefore His Honour Mr Justice Williams aud Special Jury.).. ~ J. IT. Russell v. H. Smythies.

Action to recover £2000 damages for alleged ' malicious prosecution. . Mr Macassey, with him Mr; Dick, appealed ior plaintiff j Mr Stout, with him Mr Denniston.for the defendant. ', : . J. I). Russell's cross-examination by Mr Stout was continued: I do not see any great 'difference between my statement in the affi--aaviii produced arid my evidence as to Smythies instigating me to commence an action for perjury against Barton. ••• ■'- <- -■■ >'■■;■••■, Henry W. Smythies: lama land and estate agent in Dunedin. That describes my occupation'very well; because lam doing .nothing. I was formerly practising aa a barrister and soli- • citor of this court. I entered Mr Barton's ser--vice as managing clerk in 1866, and was afterwards with OEToworth, Barton,=and 'Howorth. Jlussell wai a client of Howorth, Barton, and Howortb. I had the management of his busi:swss;.while I was with Howorth, Barton, and' Howorth. I drew the deeds spoken of. The first thing I did—as you Bay, "towards iiring a i«hpt against my former employers.—twas taxm'g their bill, in;, March,. 1865." 'I, ■commenced business myself ;in .1866. .-Tl'1 mow there were a good many applications -ipade against Howorth, Barton, andHoworth: ■A. great many of these applications were dis--charged with cbsts.;: Bartdn—-with Bryan^ fenerally got the best of it The costs mi^ht c Ll5O, Kussell got the whole of these costs -afterwards in a, verdict he obtained-afterwards tor Jjsoo. I have reason to believe he got that -verdict to reimburse him for those coats;; Outmdo«f_ that verdict, I do hotkhp^v of any re"turn^ Kussell got for those actions. 'The pro•«eeduigs^n another action in connection with Mavora Station were abandoned when the true position of affairs was discovered at Wobb's -office. Twenty-eight pounds costs- were in--cujr/ed up to that time..-. Not a single sixpence ot.tna lilOO costs afterwards incurred,'.WS3J incurred in direct prosecution of that action in' •■Court. He never got-a.shilling from Miller's -trustees. 'I made an offer for the purchase of KUBselFs estate. He would; hot haye!gairied •any benefit if that purchase had,beeh'made; My.bill Of ; costs would be still against' him. I toew Russell had not a five-pound, nste when -<ac nrst came io me. I was not -influenced Dy.pnvate feeling* when I commenced these proceedings against' Howorth^ Barton," and lloworth. OF course everybody knows there; waa great difficulty' in my being admitted, the petition to the Judges was before them for three years. During all that time Barton was perfectly aware of what had token place, and iealso very kindly wrote a letter to the Chief -Justice, speaking extremely favourably for me, ■ and the Judges said it was very much on ac•count of that that I was admitted.. When the Jaages certified that I was to be admitted the profession rose up against me, and an application: was made to the Judges to refuse ms adT1H? 10"v 1 . Directly Mr Barton heard of that, he said Mr Smythies, you must leave'my office directly. I cannot allow asy person to be witk ™ anuer such circumstances." And'l believe I went on that yery d^y. r give Mr Howorth the credit to,say that on. that occasion he *trongly opposed Mr Barton, and said it was a ■great shame :that I should be turned out of the ■office,.but he'could not stop Mr Barton. -' -■■■'■■ ■Mr Macassey: lam afraid Mr Howorth would disclaim any credit iwhateyer. of that ■Kind. '

Witness continued: I was not influenced in the slightest degree by private feeling in the proceedings brought against Barton. I refused -*o appear against/Barton.because I-knew it would be imputed to.imp'ropei; jnotiTCs. I had a great objechon f to.appear.in Court in connection withthe perjuryaction. -^objected to the -whole proceedings, .and wished to be aUowed to recite the matter in Chambers;' The first time I appeared..for Russell wa3:-wheri'he was prosecuted; by;/ Barton;-. ' ItJi'is.: very likely Ji;;W« w _tne i.wformatiori on tie first 6cca-; "Sion., I do. not think, that! I did sci on tiie^econd occasion. On the third occasion I "certainly did so. 'I did not indict Russell for pequry someyears-ago, when Itbreatenedirial letter to do so, because it was necessary to V»et some-papers that I could not get Further toe persecution against me; commenced shortly alter that, and then, of course, it wasutterly impossible, for me to dc anything against Rut*. 59, U,.0r anybody else, A cloud was thrown over me,,and it was utterly impossible for me'to lift' uny, head, especially as .. Judge Ward, ,whb: •^particularlyimybitter enemy,.was onihe iJench. The chief-reason was that-I did not WMh toprosecute him if I could help itjbecause ;n^ fc T°?? der, he was answefablb'for thaf I thought it was Barton's. I.thon^ht 7 Bartoricbw it up, and thit Russelkawore-to " -lVtorflbligftßarton. ,1 always thought, Barton was,more; blaaieable than Russell* >]> do noV think so now, after Russell's statement that he •drew up the affidavit himself whilei he was in gaol...After I was suspended, it was of no -earthly use for me to bring proceedings. ,;I did .- try^pne _or two things-before Judge Ward, but •everything was dismissed with costs. I made: •I" 1::'" application to Judge Chapman in 1870 ■ P^o 3- a®da^* was» made use of against me" IS: ¥11 I n -rthe Oourt of A PP eal. ' It^vas ,updn that that I was suspended for fivei.years. The; -«Judge 3 Haul tbe affidavit operated very stronelv I. returned to the Colony fiom England in 1875. Down to ,1876, no proceed-ings-were taken. It was also used against me. lately, in the House of Representatives. I found" that I must get rid of it, and show that it was

Mr Macassey i Did you take away from the supreme Court two copy deeds produced,. and marked as exhibits, and belonging to Mr Barton?. ... ■ . . . '•-•

Witness: At one time, no doufct, I did. Mr Macassey:. On arriving at your office in Kattray street, • did you take these two copy ■deeds out of your bag, and produce them, or show them to Captain Eussell? Witness: I.did.

Mr Macassey: Did you ever return them to Mr Eoworth or Mr Barton, or any member of

Witness: No.

■ Mr Macassey: Did you consider,it a proper "thing to retain documents so obtained in your -owripossession? : .. ' Witness: No; but I did not retain them Mr Macassey: Did you believe you ought to *aye returned them? ■ . „

Witness: I did.

iMr Macassey: Be good enough ito explain, -why you cud not return them. -Witness: The extreme pressure Captain Kussellput upon me, in this way: When I formerly returned a bill of costs to Barton, .Captain. Russell was excessively angry ■with me. I may say that, from that hour to this we hare never been friends. Although I have carried on business for him, ■it was not in a friendly spirit. Then the same iscerie occurred when he asked me not to return these deeds. ; .I. felt that-if by returning the •deeds. I again aggravated him, it would be.im--possible I could do him justice in carrying on Ms legal proceedings. But I stipulated with 'Captain Eussell that when they were copied, they should be returned. Of course, 1 meant to Mr Barton. Instead, however, of returning the deeds to Mr Barton, Russell took them to tne arbitrators, and I think properly so, because they-were put in in that suit, and were in the hands of the arbitrators. The two deeds were copied, one by my son, and the other by JiusselL The deeds certainly were not; properly mmy possession. The possession of the -deeds was of no use to me. . They were of great va& to me, because he wanted to take them pefore the arbitrators. When I opened mv bag in my office, I said, "Oh, dear me! I have got those deeds—l have got -those copies. I must take them back." My son offered to copy'them, and I «Md,; I will have rothing to do with ™em. ■ I wash my hands of the matter. I will Dot allow them to be copied in my office. Do not make any charge for them, and do not put any name on tbem." It was my opinion that no copies of the deeds should be made under the circumstances. I ■ would not ;allow copies -of them, to be m?,de in my office,but my son who was 23 years of age at the time, made the copies in our private house. That was between tain and Captain Russell,, and waa nothing to •do with me. I washed my hands of it. In my letters of June, 1868, I stated that I had ■written evidence refuting the charge that I had taken the papei-3 from the Supreme Court. I burnt, my papers, and, ordinary.office books shortly before I left for England in March,: 1869. Itwhdttrite tliat;lundertooTcthetnan-' agement of Captain Russell's case against Mr

Barton_simply for co?ts out of pocket. - -It was oupou Mr Bai ton's affidavit being contradictory jcomine that theprdceedingsfor perjury were &™«4. ,As far back as the'lat March, ;lbbb,,l had^been in the habit 'of taxing the ;oosts of Messrs Howorth, Barton, aid Howorth, .on behalf of Captain Russell. ihe affidavit produced was sworn on the 26th ;M.arch, 1866, when Captain Russell was absent from the Colony. On one occasion I paid a sum of Ll6 to take Captain Russell out of the hands of one of the gaol officers. If I had not :been employed in Mr Barton's office, I would nave taken further action against Messrs jHoworth, Barton, and Howoith. - - •"-•"• ■Re-examined ::.My letter that appears in the -Otfgo Daily Times of 12th May, 1866, is jstrictly correct. I still believe CaptainUvussell swore falsely when he^swore thesa allegations. The copy deeds were taken to Mr' ;Moms, the valuator. ., In the prosecution <iom " menced in 1868, Mr John Jones laid the information, and'that ultimately led to my bus-" pension from practice by Judge Waid. :, Jais, e| Doughty, land and estate agent:! .taiew Mr Smythies in the year 1866j when He •had his office in Rattray street. 1 was then iri: ;tne service of theProvinci.il Government; and" ; we occupied part of the building in which Mr -;Smythies's and other, offices were situate. I if?™, 1' w^s in the early part of 1867 when we ;iett the office occupied by our department, the Koad Board. So far as I knew, Mr Smythies '■'. only had one room. ! -Having put in several documentsVMrMacas-' ; sey closed the case for the plaintiff. - . Mr Stout submitted that there was an absence of any proof in this case necessary to maintain an action. There was no proof of malice. He contended that there was no corro:borative evidence in support of plaintiS'i statements, and. that the case was simply Captain Russell's oath against Mr Smythies's oath. There" was an absence of proof of want of reasonable and probable cause, and also an absence of jiroof of malice. He therefore applied for a nonsuit. His Honour ruled. that the evidence must co io the Jury. Mr Stout asked His Honour to reserve the point. ...'.'• i . -

Mr Macassey said that his consent was necessary, and he declined to make any concession. . , ~._■-:

Mr Stout: We didn't expect anyconcession from you. :--.-... Mr Macassey then addressed . the Jury at considerable length. He remaiked that it wa3 "great scandal to our system of jurisprudence ;that the power of commencing actions for perjuryshould be placed in the hands of any private individual ■-■■'.■■:■ ■ . -

i Mr Stout addressed a forcible speech to the Jury on behalf of the defendant - ; His Honour, in the course'o"f his summing' •up,; said: ( One. extraordinary reason has been given by bniythies for! the delay in bringing the: icharge of perjury against Russell. He said he thought it;was.of no -ose to; take steps while ;Mr Justice Ward was"acting as "judge in" this ;Coui:t. v It appears! to me that a statement of• that land puts ah imputation on a judge ot ithia; Court which ought not to bo put on him/ , Whatever .view may: haVe been taken by Justice Ward in other"casea that came before' nun, «rhen an entirely distinct question came before: him or any other judgeoi.this Court, oratiy other Court in the British dominions; he would treat it independently, without "any referencewhatever to former cases. In a case of this kmd—a prosecution-for perjury—it is not for the judge to decide, the matter must come before the jury.- ; , - ... ! The Jury, after-a retirement of about an' hour, brought in. the following answers to'the issues;— ; ' ' • '■•',::-■.:.; ~

■ .^%.-^'^ *^c defendant, on or about the 4th iay: ;of October, • 1876, falsely: and maliciously; and 7 ;without reasonable or probable .cause, appear before John Bathgate, Esq:,ra Justice of-;thV for the Colony of-New Zealand,-and Scnarge the plaintiff with haying, on the 10th day ipf June, 1867, in a certaih "matter then pending in the Supreme Court of the Colony, falsely" iwickedly, wilfully," and corruptly committed iWilfuland corrupt perjury in an affidavit then' made by him, the said plaintiff, as in/the declaration alleged ?—Answer: Yes; -• ■.-•■ '. ■■ i 2. Did the said defendant procure the said ;John_ Bathgate to: grant his: 3 umsi6ns'commanding the plaintiff to appear" to answer i? tll6,""o3^™^!01! of-the. said aefehdant on the 11th day of October, then instant ?—Answer• ;Yes; -.-••■. . "■ •■. :-■"■.,■ ■.. .:. .-.■ :

;,,-3- Was. tM.plaintiff cumpelled to answer to ;tne said information Jon the 11th day of October, and on the several: days mentioned in the to. which the hearing-of the said :summ"ons was remanded;-and was .the" plaintiff ,on each- of the said days compelled to enter jintq his recognisance in the sum "of LSO ?— j Answer: Yes, as to the part up to the word i r l em r aF dedV and No as to the remainder. - ;,.4. Did^ the said: John bathgate dismiss the information and charge against the plaintiff ?— Answer: Yes. .: "! • ■> ' ■ - ;:"

-5. Has the plaintiff ibeeri; injured in hisre•putation and suffered .pain" of' b.ody arid mind, ;and was he, prevented) from attending to his ! business.'a«jd has,he incurred expense in dej fending himself from-the said charge ?—Answer: :JL 6S» -■ '■■ .' 1 .'" ".'; -■";■* -; ".- • ■ -.t s ■.■: - -;

j 6. What sum, if any, is the plaintiff entitled !to recover from the defendant ?—Answer.: jJLiAuU*. " ' ' '■' '' ;i .. V- ::'i ;.■■*', ■' ■•'.'.