HIGIL cOMMISSIONER'S COURT.

Samoa Times and South Sea Gazette, Volume 2, Issue 62, 7 December 1878, Page 2

HIGIL cOMMISSIONER'S COURT.

ThI'ISSDAV, .". li.vkmi:]'.:;. IH7N. [Before 1!. S. Swansfon. l-Jsq., Deputv I'omuiissiunor, and Mi. \V. K. A-ai Assessor.]

DI'XLOF V. eonXW.V.I.I..—.IfIKJMKXT

In Re William Stewart Dunlop, a British subject, publican of Apia. Samoa, versus L'Vunk Cornwall, planter of r'nsitootai Anna, Samoa. In this uauso the plaintiff. W. S. Dunlop claims £2OO costs and damages for the forcible entry into his house and the removing therefrom of certain merchandise his property bv one 1\ (' irnwall and his agents. The plaintiff, \V. S. Dunlop. in July 1577. entered intoa written eoutroet with Mc.Aithur and.Co., of Auckland, New Zealand, wherein it was agreed that Dun|op should trade for McArfliur and Co. in tile l'acitie Islands. The above-named firm were to provide Dunlop with'merchandise nnd motley as specified in the contract, and they were to receive as payment Island produce upon the terms and conditions agreed to in the said ooutract. In March. 1«77, Dunlop arrived in Samoa from Auckland, and in thu same month circumstances forced him lo return to New Zealand. J luring his absence goods that had been selected by him in Auckland under this contract with MeArt'uur nnd Co., and which goods on his first leaving New Zealand it had been arranged should be forwarded lo Apia, Samoa, to him in the brigatitino Helena, had reached their destination, and the supercargo of the Helena handed these to a Mr. Prank Cornwall to lie delivered to Dunlop whenever he should return. On Duulop's return in April, Ds77. the goods were delivered to him, and in July. 1N77, thu supercargo of the Active, Mr. (1 ribbon, agent for M:Arthui and Co.. presented to Dunlop a bill for tbo said goods and demanded payment. Before leaving Auckland in April, 1«77. for Samoa, D'Hllop state., lie had cancelled hlscontrocl with McArthur and Co., and bad settled his account with that firm up to that date, and thai in the settlement, with .MeAithur and Co. the goods by the Helena were paid for. In October. 1577. four months after the demand for payment wado by Gribbon for these tpSOlOc goods, and six months after they bad been iu Dunlop's possession by deb very of the party authorised so to do from the Agent of Mi Arthur and Co.. nno !■'. Cornwall, the dufeu taut in thii

earns who :it tlii- time was Acting British i Consul entered forciMy by kU agents tli«hoaseol Dunlopand caused to*be removed thence the residue ol toaw ssid goods then in Duiilop'a piesesoion. Against] this action Dunlop at the time protected I :md now claims redress. P. Cornwall, the defendant, substantia I Jly admiu the whole plaint but pleads that he, in retaking possession ot the goods, did so on hj. half ol MeArthur and C0.,0f Auckland; that he acted in his official capacity as Acting British Consul in order to secure absent British subjects from wrong, and ho produces two letters from the tiiiu in New Zealand, MeArthur and Co., to him on the subject. But in these letters MeArthur and I'o. merely express surprise at the delivery of the goods to Dunlop and ask i 'omwall, the defendant, to aid them in obtaining payment for the same, thus no tloiibt implying an indebtedness that Lad to be provwl. The defendaut pleaded nlso thai hj :,-.ii.-l c,f th adv.'. ■: cerlan looal business men whom lc had called into his counsels, and who all suggested and endorsed the action lie subsequently officially took in the matter. Mr. Gribbon, the defendant's witness, now supercargo of the schooner Active in the employ of Messrs. MeArthur and Co.. and at that time their ostensible agent in Apia, states these goods shipped in the Helena by McAithni and Co. were left in his charge as supercargo of the Helena to be delivered to the plaintiff in this cause, Dunlop, hut that on the arrival of the Helena at Apia, Dunlop being absent, ho placed the goods in charge of Mr. F. Cornwall to be delivered to Dunlop on his return, hut ho .Mates he did this with a proviso, which proviso it is to bo presumed was duly regarded by Mr. Cornwall. On Mr. liribbon's return to Apia in June or July 1x77, lie found the goods that had been given to Cornwall to be delivered to Duiilup in the possession of the plaintiff Dunlop, and In- then presented a hill of parcels for the same demanding at the sums time iiaviuenf which Dunlop refused.

Certain menini'iimlii of accounts anhanded in bv Mr. llribbun in connection will. Dunlop's dealings with MeArthur nrtil i 'u. T ■of these memoranda if l!i.ar attached the attestation or signatiirn of the* firm or of any agent of the linn. In some instances these memoranda are supported by Mr. Grribbon's oath, in other instances lie is unable to swear to them, lie howeverswears ]>o.silively that these goods were never jiaid for by Dunlop the plaintiff, and that they were charged to the Helena's account, I.m the unsigned bill of parcels presented on the part of MeArthur and Co. by liribbon to Dun!,.,, is aildressed W. S. Dunlop debtor to MeArthur and L'o., and unt in the heading described as part of the trading cargo of the Helena. Mr. Uribbon also names the value of the goods seized by Cornwall the defendant and returned to him as agent for MeArthur and Co. us according to invoice prices worth X 1 10s. The complainant Dunlop swears as positively that the gross value of these goods was included in the general settlement of his account with MeArthur ami Co. when the contract in April 1«77 between them was settled, and when he closed his account, tie also sweare that these memoranda of uccount are not correct ; thai he has been overcharged therein in certain items which he has never received, and that he had not had credit

(riven Kim fur monies paid in and for which monies ho should have been credited. Therefore in view of the evidence of this cause given unci after clue consideraticm the (Joint decides that I''. Cornwall ili" defendant in this action in forcibly by his agents entering Dunlop's house and binning to l» l carded and removed thence the goods heretofore named and those in the peaceable possession of the complainant acted wrongfully, and that the complainant lias just cause for instituting the action now brought, and that he is entitled to the sum uf £2OO to cover in all the value nf the g Ls of which ho lias been forcibly deprived and the loss and damage ho thereby suffered. And for this amount and costs judgment is now givou, Execution to he stayed until leave granted be the Court. The following is the Assessor's dissent as handed in to'.ho Deputy Commissioner. -After carefully rumliug over the evidoncn and your judgment in the case of \\". S. Dunlop v. K Cornwall, 1 am of opinion that the sum awarded is too high. Considering tho state of the country at the time; that there was nu law to appeal to; that Cornwall did not take tin- matter in hand without the advice of four merchants; that he seized the goods in the interests of absent British subjects; that Dunlop has never paid for the goods although he swon. he had, I n f opinion that the smallest damages the law will allow would he sufficient to satisfy justice in this ease. Your remarks with regard to the account presented by Grlbbon not being attested in any way by the firm, 1 think ought to be followed by the remark "that as the ease was not known to he going on, or that tho papers would he wiled for at the time Oribbon left Auckland it was Impossible to have them oertiiled by tho firm." Mr. Iletheriugton appeared for the plaintiff in this case.