THE SAMOAN APPEAL CASE.

New Zealand Herald, Volume XXVIII, Issue 8669, 11 September 1891, Page 6

THE SAMOAN APPEAL CASE.

The mail which arrived yesterday contained full reports of the appeal fro the Privy Council, in McArthur and Co. v. Cornwall. The judges were Lord Haanen, Lord Macnaghten, Lord Holhouse, and Sir Richard Couch. The formal judgment has not beendelivercd yet. Mr. Napier, of London, ap. peared for W. McArthur and Co., with MrJ. P. , Campbell, of Auckland, and Mr, Mc, Arthur, of London; Mr. Fullarton, MrLynch, and Mr, Holder' appeared for Corn wall and Manacma. Mr. Napier's address occupied the Court for three days. At the conclusion he said : My clients have been most anxious for me to say to your Lordships that they resisted this claim as they were advised that there was 110 legal ground for it. But if your Lordships consider that by any amendment in the pleadings there is i any remedy to which Cornwall or Manaemu are entitled in the claim, my clients instruct me to admit any claim that could be made for an equitable remedy. If these people have any right, my clients do not desire to deprive them of it. They instruct me to say that they have never looked upon this land as anything but security. They have not made the security available, but they do not desire to set up legal or technical difficulties in the way of any equitable claim that may be made out to the satisfaction of your Lordships. They are most desirous that there should be a termiuaf tion of this harassing and tedious litigation; which has been a great expense to both parties, and they trust your Lordships may not find it necessary to send the case down for a new trial to Samoa. The difficulties in the way of clients litigating cases in Samoa, even before the British Court, are shown by these proceedings to be very great, but I apprehend that, on the construction of the treaty which has been lately entered into}' the difficulties will be increased, because the Court has been established with a Swedish Judge now, and there will be no longer any opportunity of appealing to Fiji or to this Court.

Lord Macnaghten : Is there no appeal ? Mr. Napier: No. Under the treaty the jurisdiction is exclusive. Lord Macnaghten : What you say is the real position with regard to these lands, is this. These leases seem to have been a sham, anil the conveyance to Manaema seems to have been a sham. What do you say is the real position ? Mr. Fullarton followed for Cornwall and Manaema, contending that the assessment of damages were not unreasonable. Lord Macnaghten, interrupting him, said : If it is such a valuable property how is it you could not pay a small sum like £5000? According to you the property is worth—what? £40,000 is the damage given for six years' possession, and yet you cannot pay a sum of £5000. How is it possible to persuade us of that ? Further on, when Mr. Fullarton was complaining of the sequestration, Lord Macnaghten said.: Surely the.circumstances were peculiar enough to authorise the Court in granting sequestration against a man of th is sort—a man who has btjen in debt, and gets rid of the whole of his property by sham conveyances and fraudulent mortgages. If there is not to be sequestration under circumstances of that kind, when are the circumstances peculiar ? Here is a man who owe money aud lias a writ against him for £5000He runs away and he complains of .his creditors, contrary to entering his propsrty. No doubt it would be depreciated, aud they would have to answer for that. But a gentleman who runs away from his property is not in a position to keep it in good repair, is lie ?

Mr. Fullarton : The only reason is that lie was out of possession, and they would not allow him in. He had kept them in repair up to that moment. Lord Macnaghten : So he bad, but lie did not pay his labourers and he did not pay his creditors. Mr. Fullarton, it seems to me to be very extravagant damages to give in this case. • - -.■" . "• Mr. Fullarton : He had paid his labourers lip to the time when he came back to the island. There is no suggestion that lie did not pay his labourers while he was in possession. There is no suggestion of that kind. Lord Macuaghten : What had they done against him at this time' except get a decree for a sum of money which he justly owed them. Mr. Fullarton : At which time? Lord Macnaghten : When he went away. Mr. Fullarton: He did not abscond. He had a perfect right to go to Fiji to conduct his case. If he had not gone to Fiji to conduct his case, his case would not have been conducted. Sir' Richard Couch : The effect of his going to Fiji to conduct his case was something like the effect of absconding. Mr. Fullarton : I submit that a man has a perfect right to conduct his case. Sir Richard Couch : Yes, but he ought to take measures for the management of his pron&rty when he goes away. Mri-Vullarton : How could they bo heard to say that when they immediately seized the whole of his property and mismanaged it? Lord Macnaghten : It seems to me to be a great piece of luck that they did. Otherwise what would have been the result? Mr. Fullarton : He would have remained in possession. Lord Macnaghten : No, he would not. Air. Fullarton: It would have been looked after by Manaema. Lord Macnaghten : No, she had no money. She was a native woman, and had no money. Mr. Fullarton : The evidence is that Cornwall went away lor nearly two years to England before they brought this action at all. This is the basis of the damages given by the Chief Justice—that during more than a year, when he was entirely away in England, these plantations were worked by Manaema. Lord Macnaghten : With moneys supplied by whom ? Mr. Fullarton : Worked by Manaema at a net profit—as he says not less than £1200— for out of that profit a debt of £1200 was paid in that one year. That shows that it is not required to lie personally present in order to have his nropcrty both' properly conducted and the labourers paid. Lord Macnaghten : He cannot conduct a property of this sort without money. Mr, Fullarton : Yon can get tho money as you go on. You can sell the copra and carry on the payment of labourers. You can pay labourers out of. the produce of your copra which you sell to traders there. There is 110 difficulty in getting ready money so long as the plantations are in good working order. Lord Macnaghten: Remember that those persons had got execution Against him for £5000. They would not have allowed him to dispose of money for the purpose of carrying on of business.

Lord Macnaghten: At present my great difficulty is to see how possibly you would bo iu a better position if the McArthurs had not seized your property. It seems to me you would have been in a very much worse position. I cannot see that you have sustained any damages at all. Mr. Fullarton : All one can say is this, that up to the time when they were seized we were in good circumstances. Lord Macnagliteu: I beg your pardon; you had not paid your labourers for a year, you had not got a penny, that is if you were honest men. That is really what is pressing on my mind. I cannot see how you can have been one bit damaged by the seizure of MoArthurs.

Mr. Fullarton: It is on evidence, and the Chief ustice acted 011 it, that wo paid £1250 of winnings in 0110 year. Lord Macnaghten : We have not got to that yet. At present, I. have not seen the slightest evidence that you nave suffered any damage at all. Sir Richard Conch : Do you claim damages for beiin; made a bankrupt? Mr. Tf'ullarton: These lands producing copra, of course, could be sold. Lord Macnaghten : Then why did you not sell them and pay your debts? Mr. Fullarton : 1 did not mean to say that we were in « position when called upon suddenly as they called upon us, to pay them £5000, but we should have been able to do so if wo had been in possession of the laud. . Towards the conclusion of Mr. Fullarton's address lie said : My Lords, my client authorises me to say that lie would be willing if Messrs. Mo Arthur and Co. would put the lands of which they arc admittedly in actual possession in order . Lord Macnaghtcu : Of course, they cannot do that. If you have a claim of that sort, there will only be further litigation as to whether they have carried out that undertaking or not. Mr. Fullarton • My Lords, my client has no money in his present position to put them in order. He says it would be no good to him to get back the lands in their present condition. Lord Macnaghten: I am bound to say, speaking for myself, that this is jam, altogether extravagant amount. Supposing you

go to trial again, you go before the Judge, and there is no appeal. Ido not know on what principle he would decide —whether he would pay any attention to what we say or not. I suppose lie would, to soirie extent, and to some extent he would also pay attention to what had been said in the Court below before, but it is acting blindfold. On the fifth day of hearing,; Lord Hobhouse intimated that their Lordships were of opinion that there had been a trespass, and that some damages should be recovered. But that they had also come to the conclusion that it was utterly impossible to sustain the damages that had been obtained. : Mr. Honler contended that Cornwall was entitled to vindictive damages, on 'account of the defendant's conduct. Lord Macnaghten : I do not think you can find anything like this case. An unfortunate man owes £5001) for seven or eight years. The action is presented. Then the table are turned, and he is brought in a creditor to the extent of £41,000, and that by a Judge. Sir Richard Couch : I do not know where you will find anything like that. Lord Macnaghten: Except in Oriental climes.

Sir Richard Couch : Do you seriously contend that you arc entitled to £41,(XX)? Mr. Holder : I do, indeed, my Lord. Sir Richard Couch : It is manful of you. Mr. Holder : That is only on the question of vindictive damages in defiance of the Court.

Lord Hobhouse, addressing Mr. Napier, said: Their Lordships consider that the matter stands thus. At the close of your opening their Lordships made up their minds that they must decide—that there was jurisdiction ; that there was wrongful possession on your part, or trespass, which is the same thing; and that it was inconsistent with your pica of res judicata to contend that Mr. Cornwall not in possession by fill's agent, Manaema: therefore, that Mr. Cornwall was entitled to some damages. All those points Mr. Fullarton was relieved from arguing, and, in point of fact, he has not argued any of them. Therefore, there should be no reply upon those points. The only remaining question is as to the quantum of damages. Even if their Lordships had authority to decide the quantum here, 'which is very doubtful, they would not, in a case like this, take upon themselves the responsibility of doing so. Therefore, there must be, as the Chief Justice has decided, a new trial. But their Lordships would be desirous, if they can do 'it usefully, to indicate any principle which, in a case between Britisli subjects, the newly-created tribunal might find it expedient to use for its own guidance. Of course, we cannot tell in the least on what principles it will go, but it is not improbable that in a case between British subjects it might find our observations useful. One principle has been already fully argued, namely, that of vindictive damages. On that point their Lordships arc prepared to rule against Mr. Fullarton, and to lay down that, looking at English' law, there should not be vindictive damages. Therefore you need not rely upon : that; but their Lordships would be glad to hear from you what other principles you say they ought to lay down for this case. Mr. Napier proceeded with his reply, at the termination of which their Lordships reserved judgment.