MARTIN V. LIARDET.

Samoa Times and South Sea Gazette, Issue 12, 22 December 1877, Page 4

MARTIN V. LIARDET.

On the 30th October, Judge Gorric, after a patient hearing of the above case, delivered the following judgment, which we clip from the " Fyi Times ": — "The only point of law which the defendant's counsel raised in this case which was not raised in Harding v. Liardet was that he was entitled to notice boforo action brought. Ho cited a cose which showed that notice was required under tho Malicious Trespass Act where the defendant acted bona fido, although «"7<?r!eously, in ordering the plaintiff to leave his shop. The action which is brought against the defendant is one of a different description to that which the provisions of that Statute apply, ami other Statutes requiring notice to constables and others nrn not applicable so far as I can see from any of the authorities cited to me. The learned counsel mentioned incidentally, although it i:< not pleaded, a point

'as i the cii'ect of the subsequent 'r in ~f the dofend- ■ p n the esse "i ' IBsB, wh.lC the Spailis .. f . ~• tatrneoou on ! the toast ; a brought an action against C mimaikier IX n man for destroyjing it. lilt Mm limental difference between such a case .o. . this is that the naval officer was at the time carrying out the instructions of his superiors in a warlike expedition, and the fact that a I foreigner injun . in the course of such operations appealed for damages to an | English Court show how far the right to such actions was supposed to go. This, however, is a case in which one British subject appeals to the law against another, an<i it is hard to understand how any despatch by the Secretary of State could alter the legal position of these parties. It could not alter the question of what was law, and it ought not to weigh with the Judge as to what was either just or right. I? the approval of the Crown could by any possibility under the authority of that case, make the Crown the proper defendant in a suit of this nature, which I cannot admit, there is nothing before such approval ia received —and it may never be received —to take away the right of the plaintiff to sue his adversary in this Court. If in the one view the defendant would get the benefit, and the plaintiff have to face a much, more formidable opponent, in the other the plaintiff is enabled to get justice without meeting with such obstacles, and that does not appear to me to be a circumstance much to be regretted. As to the merits of the cause the substantial variance from the ease of Harding is that the plaintiff was deported by the defendant as well as imprisoned and handcuffed. This sentence of deportation, or rather the resolve in the defendant's mind to deport the plaintiff, was arrived at in June immediately following a most wanton nttack and assault by the plaintiff upon a Mr. Stewart, then residing in Samoa. The plaintiff admitted the assault before this Court, just as he did before the Consul, and he justified it by saying that then; being no law in Samoa, he was entitled to take the law into his own hand. His mode of taking the law into his own hand was that in consequence of some statement being made by Stewart about plaintiff taking away a book from the store to give to Mr. Woods, he went to the store and hit Stewart across the face with a stick. The blow as has been proved to us was a severe one, which cut the person assaulted and covered him with blood. It is plain therefore that the defendant had very good reason for looking upon the plaintiff- as- a violent person, and that the British community of Samoa might have been much better without his presence. But the sentence or order of deportation from any country is a severe one, and " prima facie" it can onlv he given by the authorities of that State. If the Samoans chiefs by their native judges had tried this person for his assault, and ordered him to be deported, it might have only given him his deserts. The power of the" Consul to

deport is ;i very different matter, and no authority lias been brought forward to slipw that a Consul has such power, or at all events that the defendant had such power. The defendant mentioned that he himself when a Lieutenant in the Navy had seen it done from Fiji, and there can be no doubt that such a mode of dealing with British subjects has been not unknown. Unfortunately a person in the position of a Lieutenant in the Navy sees the fact, without knowing the result, of being acquainted with the ' bounds of the power which has been thus ■ exercised, or, it may be, abused. The custom prevailing to a greater or less ■ extent in the Pacific may be a good defence by the defendant if the prudence . of his acts are questioned elsewhere, and it may well be taken into account in judging of his motives whether they were malicious or not, but I have seen or heard nothing from the defendant's counsel to show me that the defendant had any legal authority whatever to pronounce such a sentence, or indeed to judge the plaintiff at all for this case of assault. After the defendant had made up his mind to deport, he received a petition from certain of the white residents asking him to carry out the sentence. Now the defendant stated that in answer to that petition he pledged himself to deport the plaintiff, and considered that he was bound to stand by his pledge. There can be nothing more . dangerous than for a Consul to act upon such requests and such documents as ■ these, or to pledge himself to any course of conduct thereupon. In small places there are always envies, jealousies and all kinds of unpleasantness, and people will not scruple to sign such a petition , simply to get rid of a disagreeable neighbor or a trade rival. In this case it ' has been proved that the petition was ' written by Hunt, who was acting along with Stowart, and signed by several of : the employe's of Stewart, It is a matter ' of regret that the defendant should have paid any attention to such a document > conceived in a most exaggerated and hostile strain. But the defendant did i not in point of fact deport the plaintiff 1 in June, and although several vessols left • took no steps until September. Now 1 what is the account he gives of what then took place ' Ho states that a Mr. Coubrough having come to him accompanied by Hunt to say thut he had been assaulted by Martin, he at once, without any inquiry into the truth of the allegation, but on the simp!.' complaint of Coubrough, issued a warrant to apprehend Martin for the purpoM of carrying out his resolution of deportation, If the defendant had enquired he Would

have found that the so-called assault was merely nominal, and that the plaintiff «•• then acting under the authority of the United State* Consul. Indeed it is - ■.,... !v possible to conceive that if the I d>■[". andanl saw Coubrodgh and Hunt at all he did not leant from them the real i state of the facts. But the defendant did issue the warrant, Cod, with what I p have characterised in Harding's ease as ■ remarkable want of prudence.and judg- , meat, entrusted the execution of it to one Mail, the supercargo of the Canterbury : the vessel of Hunt who was a competitor for possession of the store of which the plaintiff had been put in possession, and to assist Mair in the arrest be gave him the assistance of others of the sailors of the Canterbury as special constables. These parties carried out the arrest in a most feckless and harsh manner, unknown to the defendant, but in consequence of his selection of such instruments, After the arrest the defendant admits that he kept the plaintiff in handcuffs for twelve days on the Canterbury, that he was taken to the Bhering bound for Fiji in handcuffs, and only released when the pilot had left the vessel. The deportation from Samoa was thus carried out. Now these proceedings I must ivgard as an aggravated assault upon Martin. The defendant hail no authority, and what he alleges in explanation or justification is wholly insufficient to cover these acts, however honestly he may have been acting ill the supposed discharge' of his duty. Bat on the other hand it is impossible that I can regard the plaintiff coming here with clean hands. The assault he committed upon Stewart was a most, dastardly attack and the way in which he justified it here, and the bravado way also in which when in the store he sent for his arms, slung shot, &c, show that he is not the peaceful character the witness Drury represents him to he. The disgraceful mode in which the persons on the Canterbury used the plaintitl'at first was no doubt duo to the brutal assault he had committed on Stewart—the violence begetting violence. That damages are due it is clear, and not merely nominal damages, hut I think, looking at the fact that the plaintiff docs not come into Court in the best possible position to complain of violence, that if 1 give him double the amount of damages I have given to Harding, viz., X.JO, the ends of , justice will be met. This finding will . carry costs, but I will look at the bill before allowing the amount.