RESIDENT MAGISTRATE'S COURT. Auckland, Wednesday, 29th August, 1851. (Before Thomas Bechham, Esq., Resident Magistrate.)

New Zealander, Volume 7, Issue 561, 30 August 1851, Page 3

RESIDENT MAGISTRATE'S COURT. Auckland, Wednesday, 29th August, 1851. (Before Thomas Bechham, Esq., Resident Magistrate.)

Mr. James O'Neill appeared to ansxver the complaint in an information lodged against him by Mr. John Guilding, Landing Waiter of H. M. Customs at this port. The charge preferred in the information was •< For passing, on the 19th August, an entry without properly describing the goods contained in that entry, contrary to tbc 22nd clause of the Customs', Ordinances, Sess. I, No. 3, and Se3S. XI., No. 5 whereby the said James O'Neill had forfeited the said goods."' Mr. GuiLDtNc, was present to conduct the casein support of die information, aud Mr. WuiTAKta appeared for the defendant. Mr. Thos. Jlcxuy Ely, Locker in the Customs, being sworn, stated, that be had a case, marked No. 57, opened on the 22nd instant ; it was die property of the ] defendant, and was described in the entry aa a case of ! millinery, and duty paid at the Customs at fro ad valorem rate of 10 per cent, on the invoice ; this payment ' was made before the case wa9 examined ; on opening it ho found amongst its contents one dozen beaver hats, for which there" is a fixed duty of 12s. per dozen; thero was also three dozen cloth caps, for which there is a fixed duty of 2s. per dozen ; also two dozen straw hats, for which there is a fixed duty of Is. 6d. per dozen — the remainder of the goods in the case came under the bead of ad valorem according to tbe aew scale of duties. By Mr. Wiiitakkr : The contents of the case except the articles he had named were properly entered at 10 per cent.; the whole case had been valued by the defendant at .£24 11 11 ; could not say what was the amount actually paid on the hats Heparately, (Hero them voice v.as handed to the witness for hia examination.) The invoice value is £'26 19 5; the goods are valued at /J<2 l 1 1 11 on the entry, whtch is less £17 6 the cost of the case : the amount thai ought to have been paid on (lie straw hats,i according to the fized rate, is 35., the amount actually paid by the defendant on this article, at tbe ad valorem of the invoice rate, was 3s. 4d.; the defendant on this article cheated himself of lid. ; the fixed rate of duty on the 3 dozen blue cloth caps id 2s. per dozen-— the advalorem duty paid was, within a fraction, ss. 9d., being 3d. less than the proper amount under the fixed rate ; the fixed duty on the 12 beaver hats is 125., the duty paid advalorem of invoices wad about 4s. 7d. ; there were the only articles improperly entered, out of the 67 parcels included in the entry ; the sum of-^lUfffwaa overpaid on ono article, 3d. short on another, and 7s. sd. short on another ; witness never told-Mr. O'Neill tint the Customs did not expect importers to pay the full rates of duties; he did not recollect having any conversation with Mr. O'Neill on the subject of duties; ho had known of amended entrya being allowed, but not under the new seals of duties ; he was aware of another case of wioug description having been gives fince the n°w ordinance came into operation. Mr. Theopiiilus Edward Tayloii, Chief Clerk in the Customs, stated that the entry which he held ia his liana was the one mode by the defendant of tbe goods that bad been Beized — tbe declaration on on the back of the entry was made by the defendant in presence of the witness, who cautioned defendant at tho time to be veiy particular in describing the goods, and called Ins attention to a public notice posted in tbe Custom House, in which it ia declared that unless goods be properly described they will be forfeited; defendant fust wrote the declaration, then read the notice to which his attention had been directed, and then signed the declaration. By Mr. Wmtakxr : Witness particularly called the de/end.int'a attention to the no'ice; there had been anothci instance of wrong description under the new tariff, buttheie had not been any amended description or entry allowed ; there had been cases in which amended entiys were allowed under the old system, but theywcie special cases of indulgence granted by the Collector; the otdhiance gave no authority for such indulgence ; the 22nd clause directs that goods not properly described in the entry shall be forfeited. By the Court '■ Parties receiving consignments of goods without invoices, would have an opportuuity of descubing them correctly, by making a declaration to to that effect, when an order would be given by the Collector to aMow the goods to be landed and examine ed by the Ending waitei 5 then the owner could enter bis goods describing each article as granted by the landing ttrillCl. There were no witnesses called for the defence. Mr. Guilding said that much time had been taken up in the examination of witnesses upon a question that was entirely irrelevant to the case. The information was no laid for under valuation or over valuation, but for a wiong description of certain goods, in an cn'iy which was dccLued to be a true entry. The amount in ibis instance was not considered of such impor since by the Customs as the principle which they wished should be pioperly understood and established. Weie panics to be allowed to pass enirys in their own way and accoiding to whatever inle they chose, the Customs' Uidinance and regulations might soon be cntuvly set at naught The officers of the Customs bad aught to piotect ihe inteiests of the revenue, in so fai as their depaitment was concerned, and to perfoim their duties efiiciently and honestly, they must see that the duties imposed by the Legislature were duly collected. It appealed very clear to him that in this ca^e there was a diiect breach of the Ordinance, and he called upon the Uench to enforce the 22nd clause of thatjOidmauce, by ordering the foifeiture of the goods coniained in the entiy. Mr. VVuiiAkLu said that his opinion did not altogether agree with Mr. Guildnig's as to the very small dgree ot importance attached by some connected with tlie Custom^ to the money consideration of this question; be that as it may however, it certainly appealed to bun that the conduct of the parties connected with tlio Customs in bunging tins ca«o into Court, and the manner in which it\vas tiied to bo sustained before the Couitwas not such as was \ery becoming or dig* infied. 1-1 c was always anxious to see the laws uphold against wilful a»»ressois or craity evaders ot than; bul in bringing this casefonvaul, very little disci imination bad been shown- It would appear to the Bench, be was suie, as clear as it appeared to him, that no intentional fiaud on the Customs was contemplated in tins instance ; the defendant bad enteud bis goods at ad valorem lates, and by this entry be had

in one instance, paid too much as compared with the* fued rates of dntv but ncwiv introduced, and in the other instances only a few shillings had been paid less than the required amount. U ould any man attempt a wilful fiAuil to save such a paltry sum ? The thonsht could nnt he entertained for a moment ; tl-e overlooking of these three items must appear to any one as a mistake, a pure mistak-, very easily accounted for whet* we look at the encumstance under which it was made, immediately alter the introduction of a new system of duties, with a long list of articles enumerated at fixed rates, but with many items still excepted, on whi^h duties are to he paid on the old system of ad \aloiem, to which people have been *>o long accustomed. Such a law ab thi-> should be carried out by the Customs antho ices witli great prudence and caution—had such been exercised this case should not now ha\e occupied the time of the Court. But although the 22nd clause directed that poods wrongly described should be forfeited, he was »lad, from the nature of the case, to find that the 88th clause left a discretionary power with the Bench. By that clause it was enacted that the Bench, after hearing any case brought under the 22nd clause, " may" direct the goods to be forfeited— leaving it to <he decision of the C'ouit to deal with every case upon its own merits- He said again that he was triad of this, for he felt assured that the Bench having this discretionary power would acquit the de» fendant of wilful fraud, and order his goods to be restored to him. The Bench was about to say that the case would require consideration, especially as regarded the question of forteiture of the whole of the goods contained , in the rise, when Mr. Whitakcr said that he had not touched upon that po'nt, as in the information it was stated that certain goods had been wrongly described, and that the said goods should be forfeited; He took it, for grunted that only those goods that were misdescribed were claimed as forfeited— otherwise he should have had some remarks to make on that point. Mr. Guilding contended lhat the Customs had an undoubted right to seize every case contained in the entry — but in clemency that right had been wah'ed, and only the case containing the improperly described articles had been seized. Mr. Wjutaker replied that to put such a construction upon the Oidinance would be absurd and preposterous. The learned gentleman here referred to the clause in the Ordinance and read it, stating that the clear and manifest spirit of the law and meaning of the legislature was, that where a package was misdescribed, such package should be forfeited ; when goods contained in a package, making only part of that package were misdesctibed, such goods should be forfeited. In this instance the information was laid against goods contained in a certain package, because such goods were improperly described, and according to the clear interpretation of the Ordinance these misdoscribeii goods were only liable to forfeiture and not the whole case, forit had been proven that 64 of the 67 parcels in it were pioperly described. Such an interpretation as Mr^ Guilding had chose to put on the law might cause the forfeiture of an invoice worth a couple ef thousand pounds because of the misdescripticm *of one penny worth. He should be sorry to place himself at the clemency of any such interpreters of the law. The Bench deferred its decision till Friday. Friday, August 29. The Resident Magistrate delivered judgment in the above case thia morning. He said there were two points to be decided,— whether, the gooda were wrongly described as laid in the information, and whether if so, the wholepackage in which they were contained was forfeited. From the evidence there appeared no doubt that some of the goods were wrongly described j but their was evidently some mistake in passing the entry, as while some articles were undervalued, on another more than the duty was paid. The law does not leave it at the discretion of the Bench whether or not tbe goods wrongly described should be confiscated ; but considering the facilities which had previously to the introduction of the New Ordinance been afforded for the amendment of entries, it was with the greatest reluctance that he ordered those goods which were thus wrongly described to be forfeited. The Bench subsequently observed (referring to a point argued by Mr. Wiiitajcer on the hearing of the case) that it does not appear that the law intended that all the goods in a package should be forfeited because some were wrongly described. As Mr. Whitaker had urged the value of thousands of pounds or a whole ship's cargo might be included in one entry, and it would be intolerablo and absurd that the whole should be confiscated because a few articles were wrongly described— the law never contemplated any thing of the kind, and the Couit only ordered those goods wrongly described to be confiscated.