called as a witness for one of the parties, the Judge sharply told him "to go into the witness box : the other witnesses go there, and he must do the same as other people." Mr. Were's condition became anything but a pleasant one. T h e cross-examination had not proceeded far when the following extraordinary interlude was improvised in the day's performance :— M R . B A R R Y : "Will you swear that you told Atkins you gave consideration for the note?" M R . W E R E : " I do not recollect." MR. BARRY
- " Wrill you swear to the contrary ?"
M R . W E R E : "I cannot do so."
M R . B A R R Y : " A n d yet you negotiated the bill ?" His H O N O R : "This is the most extraordinary Non mi ricordo evidence ever given. T h e witness first swears one thing and then another." M R . W E R E : " Your Honor cannot expect m e to swear what I do not know." M R . B A R R Y : " Did you make the arrangement yourself, or did you get a person to go between you as in Howitt's case ?" M R W E R E : " I presume I made the arrangement myself with Atkins, because neither m y brother nor Mr. Dunsford interfered with Rucker's affairs. Will swear that I do not recollect of any conversation taking place with Atkins at the time ; nor have I any recollection of where the arrangement took place." His H O N O R : " I cannot allow a witness to trifle with the Court in this way." M R . W E R E : " I cannot take it upon myself to say when, where, or h o w the arrangement was made." * * * His H O N O R : Y o ufirstsay the exchange was not made by yourself, but by Dunsford ; and then you say it was made by yourself." M R . W E R E : " Will your Honor be pleased to take down in the evidence that I added, I understood from looking over a book at the private counting house, and from which I took a memorandum, that Dunsford was not at Geelong at the time ? Will your Honor take down what I have said ?" His H O N O R : " I shall put you elsewhere directly." (Part of the evidence read by the Judge.) M R . W E R E : " Will your Honor be pleased " His H O N O R : " I shall please to exert m y authority over a witness w h o has prevaricated ; and will commit that witness to the Melbourne Gaol for two months for gross prevarication." M R . B A R R Y "hoped Plis Honor would allow the examination to proceed, as by a late Colonial Act he was entitled to have Mr. Were's evidence." His H O N O R : " I cannot permit such a witness to proceed further. Sheriff, take him into custody." M R . W E R E addressed Mr. Barry, and handed him a slip of paper. H e hoped he would do him the justice of adding to his evidence, the explanation he gave from that note.
His H O N O R repeated his order to the Sheriff to take the witness into custody. If it had been a poor m a n who had so prevaricated he should have committed him, and Were's station in life was an aggravation of the offence. Considering the m o d e and tone of the examination, he (the Judge) should not be doing his duty if he acted otherwise. T h e whole conduct of the witness was such as merited the strongest reprobation. M R . B A R R Y pressed for the benefit of Mr. Were's evidence. H e was very sorry indeed. The Judge rose from his seat to retire to his private room, and as he did so, he, with some sarcasm repeated Mr. Barry's " very sorry indeed;" and just as he was about to disappear, Mr. Were sang out from the custody of the Sheriff, "I dare say you are very sorry indeed," whereupon the Judge turned round, came back to his seat, and looked furiously at the audience. Making an effort to control his feelings, be contrived to say, with enforced calmness, " I thought as I was on the point of leaving the Bench I heard an expression of 'very sorry indeed.'" A brief pause ensued, during which the Judge glared around, as if intimating to everybody that he was pausing for a reply. Mr. Barry, at length, awoke the deep silence, and declared that he understood Mr. Were to have addressed the words to him. This was corroborated by the Sheriff, whereupon the Judge was mollified, and withdrew from the Court. O n his return the case was resumed, and in summing up the Judge declared Were's testimony to be valueless, " T h e Non mi ricordo of Majocci was nothing to be
