SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume VII, Issue 588, 22 March 1851, Page 2

SUPREME COURT.

Civil Sittings. Before Mr. Justice Chapman. March \%th, 1851. Samuel and another v. Carkeek. This was an action to recover £5OO damages for unlawfully seizing the goods of the plaintiffs. It appeared that in the month of Febru\Ssoj the plaintiffs not having received their invoices of certain goods transshipped

at Nelson from the Berkshire to the Ip stock, made the usual Declaration und * 27th section of the Customs Ordinal der which the goods were landed import warrant and lodged in the Cult 3! wai ehousc. After examination a furtli as it is termed, a perfect entry Wns 6r Ot ’ which it was admitted did not set f or^ ! the articles contained in the cases, were thereupon seized in the Custom fl and afterwards condemned and soldy ° ISt The plaintiffs having proved the n o ti c action and commencement of suit, thV fendant offered the condemnation by Wa Estoppel. An objection was taken to/? condemnation that it stated no offence Jl| the Ordinance, only alleging that in the B try the goods were not therein described J the denomination, and with the cbaract‘l and circumstances according to which goods were chargeable with duty, anO proceeding to state a completion of theoil fence by removal in the concluding words ■ section’22 of the Ordinance. "S The 27th section after toj»i thorize the landing of goods by bill provides that “ within 3 days aftertheJul shall have been so landed the importershfll make a perfect entry thereof, andshaiiJ ther pay down all duties due thereon ord J warehouse the same, and in default of entry such goods shall be taken to T Queen’s Warehouse, and if the import shall not within one month after suchlaj ing make perfect entry of such goods •/’ pay the duties due thereon, together rS charges of removal and warehouse reut.sS goods shall be sold for the payment thal and the overplus, if any, shall be paid tofl proprietor of the goods’” | The 22nd section provides “ that noel try nor any warrant for the landing of-JS goods, or for the taking of any goods oil any warehouse, shall be deemed valid rf the particulars of the goods and packj in such entry shall correspond with the J ticulais of the goods and packages purps| ing to be the same in the report of the or in the certificate or other document, kJ any is required, by which the importatios entry of such goods is authorized, nor ud; the goods shall have been properly dess bed in such entry by the denominations i with the characters and circumstances are ding to which such goods are charged * duty dr may be imported. And any goo , taken or delivered out of any ship, or out ' any warehouse by virtue of an entrjot'ai 1 rant not corresponding or agreeing in • such respects or not properly describing! ' same, shall be deemed to be goods lasts i or taken without due entry thereof and si be forfeited.” \

It was contended that, there havjng J no removal of the goods after the entry r? the seizure was illegal, the Ordinance e declaring such entry invalid and affixing! penalty to the removal. The corresponding clause in the EnJ Act to the 27th section of the Colonial® dinance contains a distinct proviso in the Colonial Ordinance, to this ‘‘Provided that if, when full or perfectentrg at any time made for any goods provisis landed as aforesaid by bill of sight, sods try shall not be made in manner berehE fore required for the due landing ofgoi such goods shall be deemed to be g| landed without due entry thereof andl be subject to the like forfeiture accordiil The Attorney-Geneial v. Hural, H'l W. was cited" to show that the forfeitrl that case was held perfect under the fl of the proviso which was said to baren stroyed the protection afforded bv the-® clauses of the Act in the case of sigil tries, and that as no corresponding <• existed in the Colonial Ordinance theg were protected until removal. After some consideration his pressed his opinion that the invalid dared in the case of an incomplete the 22nd clause of the Ordinance e$ back to the original landing, notwith ing no such proviso existed as is conU in the Act of Parliament 3 &4 Wia j 52, that such proviso was not req“ l,w '| the purpose of assisting the Ordinal that consequently the condemn^ 3 ! good. His Honor then directed tJ ■ that the condemnation was a bar to ! J tion and to find a verdict for the defe'g Mr. Hart for the Plaintiff. | Mr. King for the Defendant. I St. Hill v. Swainson. g This was an action by the cover the sum of £llO for the selection of certain town jj sections for the defendant, and atm*' 11 J in the years 1840, 1841, 1842, a nd ! The defendant pleaded the g ene ‘,; ff£ | the Statute of Limitations, and W‘t> a To the Statute of Limitations ] tiff replied a subsequent promise ■ years. The plaintiff proved the autn°J| defendant to select for him, tbe 1 1 13 town sections in Wellington, |

sections at Manawatu, Otaki. Porirua, and other places, two country sections at Wanganui, and two town sections at Petre; he also proved that the amount charged was a very reasonable charge and less than had been usually paid ; that 10 per cent on the value of the land-order had been the common and usual payment upon all such selections.

To bring the case within the statute the r plaintiff proved a letter of the defendant’s 1 dated Sth November, 1844, containing the c following passage : ' j “ I need hardly say after the confessions I i made to you when we last met, that ‘my po- 1 verty and not my will’ obliges me to become ’ my own agent; it would indeed be morally I dishonest to incur any additional pecuniary 1 liabilities under any pietence whatsoever when i : lam totally unable to meet those I have. i This leads me also again to beg you will fai vour me with your account that it may be I added to my ‘ schedule,’ should, such a docuI ment ever be necessary to be produced.” r The defendant attempted to prove that in l one case a selection, which had been made I-in respect of a later order of choice than his |; own, was of more value than the land previI'ously chosen for him, but failed. R His Honor, in summing up, stated to the tajurv that to take the case out of the statute W the Act of Parliament required a writing I signed by the party containing an acknow- | ledgment or promise to pay, that an acg knowledgment in writing from which an imI ulied promise might be gathered would be '• | sufficient, that the Act of Parliament did not j. require any new form of words but only that I the promise, whatever it might be, should be I in writing signed by the party to be chargI ed; he read and explained to the Jury seveI ral cases upon the subject, and left it to

| them to say whether they thought the words I of the defendant’s letter contained such an | acknowledgment as the Act required. The | Jury found a verdict for the plaintiff for the | full damages sought—£llo. I Mr. Ross for the plaintiff. | Mr. Hart for the defendant.