IMPORTANT JUDGMENT BY THE SUPREME COURT OF FIJI.

Samoa Times and South Sea Gazette, Volume 3, Issue 161, 28 August 1880, Page 3

IMPORTANT JUDGMENT BY THE SUPREME COURT OF FIJI.

■ The following is tho judgment delivered by Chief Justice (tot-tie in au appeal to the Supreme Court of Fiji by Mr. F. Cornwall, of Fasotootai, n«ainst u decision of Mr. Acting Deputy Commissioner Swanstou in the case Dunlop v Cornwall, heard in the High Commissioner s Court, .Samoa : Appeal from High Commissioner's Court, Samoa. Cornwall r. Duulon Hth August, lS7f). '' In this case, which was heard before Mr. Acting Deputy Commissioner Swanston at Samoa, William Stewart Dunlop, of Apia, trader, sued tho appellant, Frank Cornwall, residing at Apia, and at one time acting as II.M. Consul at Samoa during the ahseneo of Mr. Liardet, tho actual holder of the office, for damages as tho value and profit of certain goods he alleges weio seized and carried away by ( tho the appellant, Cornwall. Tho appeal has been taken under section 110 of tho Western Pacific Order in CW.cil.

There has been no appearance in person or by counsel for the respondent, but ho has in Samoa lodged a written objection to the appeal on the ground that the defendant, now tho appellant, had, by writing dated lltli January 187!), renounced and abandoned his right to appeal. The writing in question was a letter to tho Deputy Commissioner in Samoa, in which the appellant at the date certainly expressed a decided intennot to appeal, but having changed that iutontion within the legal delay, I cannot look upon tho letter as barring the right to appeal. _ After heating the evidence on both sides, and receiving various exhibits put in, the Acting Deputy Commissioner ou the sth of December last save judgment, the important part of which is as follows: "Tn view of the evidence in this cause given, and after duo consideration the Court decides F. Cornwall, the defendant I in this action, in forcibly by his agents entering into Duulop's houso, and canning I to bo carried and removed thence the goods heretofore named, and then in the peaceable possession of the complainant. Dunlop, acted wrongly, and that tho complainant lias just cause for instituting tho action now brought, and that he is entitled to the sum of £'2oo sterling to cover in all tho value of the guods of which he lias been forcibly deprived, and the loss and damages he thereby sufibrc}, and for this amount and costs judgment is now given.'' The facts, shortly stated, were that Dunlop was one of the trading agents of .Messrs M-Arthur & Co., of Auckland, and that these gentlemen sent to Cornwall certain cases ot' goods to bo delivered to Dunlop when lie made his appearance. This was done, but on Messrs M'Aitluir tv. f'o. subsequently expressing surprise that flu- goods hndVcn braided to Dunlop on Ids bare word that lie was still their agent, which lie had ceased to he. and without payment, Cornwall, who was then Actio? Consul, (hiding the goods in the cases with the bulk unbroken, called together a kind of council of uiereliauts who advised that the goods should he taken possession (if. which was dune, ami Cornwall subsequently banded them back to Messrs M'Arthur i: I "o. i

Nn question has been raised iim to whether Cornwall was properly authorised to act ns Consul during Mr. Liardct's absence, Hid ] will assume tluit ho was. 'J'liu mode in wliich liio authority to seize the goods whs made out was in the form of a warrant to distrain, and was as follows:-—" British Consulate, Apia, October :24th. IfSTT. To John , my bailiff, greeting. Disl.rniu the goods and merchandise nf \\~. S. Lhiulop in the. house he now dwells in, the same goods having been obtained under false pretences, and for your doing so this shall bo your sutlicient warrant and authority. Dated this '.'4 th of (tetnhor, 18i7. Signed, FItAXK Coknw.u.i., 11.1 i.M. ActingCoiisiil.

Xow, there can be no doubt that Mr. Cornwall as Acting British Consul had no authority to grant a warrant to distrain goods when there had been no judicial enquiry into any question of debt or ownership which the Consul was legally empowered tn make. And. indeed, Cornwall does not. attempt to set up such a defence, but ho contends that lis Acting British Consul lie was bound to look after the iutolvsts of the Messrs M'Arthur, who were British subjects not resident in Samoa, and Hio hail given him special authority to act, ami having taken the opinion of n council of British merchants to show he was acting bnoafide, he adopted measure* to get the goods back into his possession to ho delivered to-Messrs .M'Arthur, which was done.

J would l)i.> escoedingly loathe in a case liku this to look at tlio form which was used in tho getting back of the goods apart from (lie notion itself and tho intention of tin: nppolliint. It is cviJent that he had not the smnllcst notion of the lepil business, and still loss of tho moaning of tho Molds ho had put in his warrant, and which In; had copied no doubt from some legal form. Ho did nit mean to distrain in tho legal aiiocptation of the. term, but ho meant to authorise the persons whom ho named to go anil tuk" the goods by an act of force for whinh lie, tho Acting Consul, would be responsible. Jt must bo reinomWired that, in .Samoa nt this time thero worn no Courts which could give redress to absnnt Jlritish merchants. Tho High Commissioner's: Court had not boon established, and men were obligorl in their dealings with each other to take steps from time to time t > guard their interests which would not have been tolerated, became not required, in properly organised communities. As 1 ported ..ut in the .use of |T:i"< p

'pSTtom-ro, poetical oomiderations of | this kind would not havo the saiue i application to that claw of torn which ►tiivohro personal violence, and an example ot these being enquired into and decided agaiust the Coiwul will be found in the case of Harding P . Liardet, decided iu this Court iu 1577. Hut in Hunt r, M'Kotwie, decided on 19th May, 1871) where goods hud been seized bv an net of force at Savage Island, and us' the plaintiffs stated illegally converted, I slated j that I could not apply the same rules to I ascertain what was an" illegal conversion | as I would appiy here, or in countries j wheao law was supreme and Courts open j to do justice between parties whatever the 'cause of the litigation; accordingly, I ! held in that case not that Mair was in I the legal sense justified in what he did I but that 1 could not hold in the circuai- , stance that it was such an illegal conversion as to bind him, ami those who aided and abetted him, to restore the goods, or •heir value, or if there had Lean an ille-'ai conversion in the sense in which itTisl known to the law of England, IF the appellant, Cornwall, had been a private person acting simply as the mandatoiy 0 f Messrs M'Arthur, and .had [seized the goods in question in a place ' I whero there were no Courts, and solely with tho view of his principals ohtainiii" payment of the price before the goods were used, I must, have followed the ruling in the case of Hunt p. M'Kenisie, and upon much the sumo grounds. | But does it make the case of the appellant worse that ho was Acting Consul ? Undoubtedly he used a legal form which he had no right to use, and which did ! I not properly represent what he intended ! to do and did, and if r could come to the ; conclusion that that was done for the purpose of imposing upon the plaintiff, and leading him to suppon that his case had been judicially disposed of, ii might present a very different aspect. But the plaintiff know very well the seizure was simply an net of Consular authority following upon a court of arbitration or advice, which was not uncommon in those days, and not a dislraining by a Court having proper judicial powers. yr a distraining in the legal sense at all. I am not prepared to say that the act of ■seizing the goods was beyond the power and authority properly vested in a ('ousul in such a place as Snmoji. A Consul i-, com missioned by all lawful means to aid and protect merchants trading with the place to which he is accredited, and iu an island wheio there were no Courts the getting buck of goods by the exercise of his authority, which it. was alleged had been obtained by false pretences, d„e.s not seem to me to be a great or unusual stretch of authority, and therefore I cannot see my way clear to regard it as illegal so t 0 subject the .Voting Consul iu damages.

I am quite awaro Mill Umilop asserts that the goods were psaj f„ r , n ,„[ t 1,. 1t ]„, j had u.)t ol)tiiinoi'l thent ori ? inal!v from Cornwall by falso prcteriv,, Si t he Consul acted upnil :i hunn. Jiii. |, L .|i e f | n that allegation, and lie took r,„ ~,.,,. j caution to tako the opinion of a (■•>'.,,.-] j of merchants who supported liini in lik] views. If Dunlop had really paid for Ihu goods, and Mussrs M'Arthur wore iniatakou a-i to tin: state ol' tlio account, that can easily be tried in Auckland when: they carry on business, but 1 cannot look upon the act of I lit; appellant, Cornwall, in obtaining possession of Ihu goodh, as such a wilful and wrongful act as to subject him in danuigus, hut on the contrary a-s one which, in tlio circumstances of the case, a private individual would have boon justified in adopting, and which [ cannot hold to lie altogether beyond the scope of the authority and power committed to Consuls, and which they have in such places been accustomed to exercise. 1 must accordingly alter and reverse the judgment complained of and dismiss the case, but, in regard to costs, ns Cornwall made use of forms quite inapplicable to the act of Consular authority which he performed 1 will leave him to pay his own eo.-.ts both in the Court below and of the appeal. (Signed, J, ("i.