SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume VIII, Issue 650, 25 October 1851, Page 3

SUPREME COURT.

Thursday, October \6th, 1851. Joseph (late Samuel & Joseph) u. Carkeek.* Mr. King applied for a rule nisi, calling on the plaintiff to show cause why the verdict

should not be set aside and a non-suit entered, or a new trial had, upon certain objections taken at the trial, partly relating to the notice of action and time of limitation, and partly to the evidence received.

First, Mr. King submitted that proof of the notice of action was insufficient. They had no notice to produce the notice of action, and where no notice to produce has been given the only evidence admissible is a duplicate original. He relied on Jorry v. Orchard, 2 B. and P. 39, which is cited in the last edition of Roscoe’s Evidence, and must therefore be deemed still to be law. What was produced was neither an original nor a copy ; it was a mere draft, in which initials were used instead of the plaintiffs names. [Mr. Justice Chapman : The only difference described by the witness Badcock was, that in the latter part of the copy produced, K. S. and J. J. appeared instead of. names in full, but he swore that the copy served contained the names in full. Is not this sufficient?] It seems not. Mr. Badcock did not swear he had examined the two copies—he ought to have been asked the question by the other side. [\\ hat I have down as bis evidence is this “the copy produced is an exact copy of the one served with the exception of certain abbreviations,” —namely, K. S. and J. J. .forthe plaintiffs names; how could he swear thus without having examined the two ? Moreover it was in the witness’s hand writing, executed by Mr. Ross.] Still it is submitted that with such a variance it was not admissible without notice to produce. [Mr. Justice Chapman : The copy produced must in all cases be sufficient to satisfy the Court that the Customs Regulation Ordinance has been complied with, and that the defendant has notice of all that the Ordinance entitles him to, namely—“l—cause of action; 2 — name and place of abode of the person to bring such action ; 3 —name and place of abode of the attorney.” All this the notice contains —the plaintiffs names being in full at the beginning; and if the copy served had contained initials in the latter part, I think the Ordinance would still have been complied with. Where the notice of action appears sufficient on its face, I speak the language of the Court of Common Pleas, when I say “it lies on the defendant to show that it has not afforded him the opportunity intended to be given him by the Act 0/ Parliament.” I think the proof was quite sufficient, and that it was admissible without notice to produce the notice.] As to the next objection, Mr. King continued, it is submitted that Mr. Ross’s “place of abode” is improperly stated within the meaning of the Customs Ordinance. Place of abode means “ dwelling place,” and to give the attorney’s place of business is not enough. It has always been considered that these statutory provisions must be strictly complied with. He cited Wood v. Folliot, and Taylor v. Fenwick, cited in note to Osborne v. Gough, 3 B. and P. 551, where it was doubted whether place of business was enough. [ln that case it was held that “at Birmingham ” was enough,—if that be enough surely “Wellington” would give the necessary information ?] If Mr. Ross had described himself as “ of Wellington,” perhaps, on the authority of that case, the Court would have held it enough, but if the attorney chooses to go further, he must be correct. But Osborne v. Gough was decided in 1803, and the later cases seem to require more strictness, Landredge v. Roe, 3 Law, J. C. B. 1834. [Mr. Justice Chapman : It was decided in Roberts v. Williams, 2 C. M. and R. 561, that “place of abode” under 24Geo. 2 is satisfied by giving the “place of business.” I believe it is the common practice of attorneys in all cases to give their place of business, and it seems to me to afford the defendant better information, and greater convenience for tendering amends. No doubt iu common parlance “place of abode” means “dwelling place," but an attorney in good practice probably abides during a much larger portion of the day at his office than at bis house. While, therefore, there is every advantage of convenience in giving the place of business, there is no violation or straining of the meaning of the word. I should be very sorry to decide that the ordinary indorsement “ King. Wellington,” was insufficient, until we have more than one of the name on the rolls. I recollect, on circuit, “John Smith, Liverpool,” as a direction to a notice of dishonour sent by post was held to afford no presumption that the defendant had had notice ; but then the Liverpool Directory was produced showing a list of John Smiths. In Stacey v. M’Donogh, tried in this Court, somewhat similar objections (among others) were raised, but it was considered that “Holroyd & Hart, (without initials) and Manners-street, Wellington,” the place of business, satisfied the 24 Geo. 2d. Unless you can answer Roberts v, Williams I shall consider myself bound by it.] Mr. King then contended that the action was

not “brought or commenced” within the meaning of the 98th section of the Ordinance until the writ was served. The seizure was on the 27th February; the writ was sued out on the 26t>h August, within the six months, but it was not served until the 30ih August, and if the reading of the Ordinance which he was about to submit to the Court was correct, the 30th was too late. The limitation clause wa? the 98th; the clause relating to notice of action was the 94tb ; and he submitted that these must be read together. If this were done it must be clear that unless service of the writ was considered as essential to the commencement of the action, the language of the 94th clause became nonsense. The 94tb c ause requires that “no writ shall be sued out, &c.,” “ nor any copy of any process served upon, &c.,” “ until one calendar month next after, &c. ;” and the 98th clause enacts that “ no action or suit shall be brought or commenced within six calendar months, &c.” Now the mention of “ service” as well as “suing out” the writs shows that both were intended to be included in the phrase “ brought or commenced.” It is not pretended that the defendant “ kept out of the way” within the meaning of the rule of couit. As a public officer he is always there to be served, and that may explain why service is required by the Ordinance. [Mr. Justice Chapman.—This action was clearly commenced in time. The period of limitation runs from the alleged wrongful act, 1 i.e., the seizure. In actions of this nature, where the time of limitation was short, (say three or six months) it was always considered enough for the plaintiff to' prove a writ sued out within the time. Paisons v. King, 7T. R., 6; and since the Uniformity of Process Act, certainly the suing out of the writ is the commencement of the action for all purposes whatsoever.]

Mr. King then proceeded to the next points. The plaintiff’s own witness, Mr. Ross, pioved that the goods claimed had been condemned by the Resident Magistrate, and that coming from the mouth of their own witness, ought to be deemed conclusive of the action. [Can the judgment or sentence of a court, superio or inferior, be proved vivd voce?] It was not offered in evidence by us, but stated by their own Attorney, Mr. Ross, it must be presumed to have been a good and valid condemnation. [Mr. Justice Chapman.— There was no legal evidence of any sentence of condemnation at the second trial. I only know of four modes of proof of the records or quasi records of Courts of Justice, whether superior or inferior. 1. Production of the record itself; 2. an exemplification under seal; 3- an office copy, and 4, an examined copy. The first is only necessary where the existence of the record itself is in issue on the pleadings.] Mr. King then contended that the plaintiffs were estopped by their own entry from setting up a properly in the goods. Their declaration alter examining the goods was equivalent to saying, the goods iu our entry are ours, and no other goods are ours. Nor did they offer any evidence to prove their property in the goods. If they had offered evidence none ought to have been admitted to contradict their own declaration and entry. [Mr. Justice Chapman.—l think there is no estoppel in the matter ; and there was ample evidence of property. Their case is that their entry was a mistake. It is not like a solemn averment in a record of which they have had the advantage. Estoppels in pair bsvs been much narrowed in modern tm s, and certainly should not be extended. Throughout all the proceedings the plaintiffs have been treated by <he defendant as the owners of tie goods, so that, assuming that there is something in the nature of an estoppel, there is at least an equivalent on the other part, and “ an estoppel upon an estoppel sets the matter loose.” But in truth there is r.o estoppel on either side—nothing to prevent a consideration of the real question at issue. As to the evidence of property, putting aside that the defendants has always trea'ed plaintiffs as the owners, ] uttiug aside also the tvidecce of the defendant’s witnesses, the plaintiffs produced their bill of lading of 17 packages with their marks and numbers ; the same packages are landed and examined in the searcher’s office * out of the same packages, are the goods taken. This is proof enough that the goods were the property of the plaintiffs, unless such property be changed by a lawful seizure, which is really the true question at issue] Mr. King then proceeded to the evidence as to removal. He submitted that the delivery of the cask containing cruet frames, as described by the evidence of Fades, being after the examination and entry amounted to a constructive removal of the wearing apparel seized. The removal of any part must ba deemed a removal of the whole.- It is similar to a delivery or transfer of part for the whole in the case of sales, which is sufficient to constitute a delivery of one whole. There can be no doubt of the fraud intended to have been

committed ; the Court has intimated that in order to justify a seizure a removal must be proved ; it is submitted that a removal of any portion of the property is enough. But was a removal at all necessary under the Ordinance at all ? It is true the “ proviso,” which operated on the mind of the Court is not to be found in the Customs Regulation Ordinance. That Ordinance follows very nearly the language of the former Customs Act, 6 Geo. 4, c. 107. The proviso refers to goods ‘'provisionally” landed : now, in the Customs Ordinance, the word provisionally does not appear. Being landed provisionally, the proviso was necessary to make the invalid entry relate back to the original larding. But as, under our Ordinance, the word “provisionally” does not appear—the proviso in the English Act is quite unnecessary here. Hence, the goods, although landed under a bill of sight, were in the same position as goods landed ex ship without due entry ; and this view seems borne out by a case in the Exchequer ; —the Attorney General v. Hawkes, reported 1 C. and J. 121, the abstract of which in Harrison’s index is in these words; —“Where under 6 Geo. 4, c. 107, entry and landing were procured for a case of toys by a bill of sight, and “ bugles” were also landed in the same case, they were held Hable to seizure as landed without entry.” Two other grounds on which the rule was moved for were mentioned by Mr. King, namely—that the plaintiffs had not made a claim under the 91st section, and that the action should have been brought for “ money had and received” under the sale, and not for the alleged wrongful seizure, but Mr. Justice Chapman intimated his opinion that appearance to the summons before the Magistrates was sufficient claim under the section, and that the Collector, having treated the goods as forfeited and seized them, he could not now say they were sold after the monthunder the 27th section, and therefore the action was properly brought. The points were not further pressed. On the two grounds which went to the merits, the learned Judge said he should take a few days to consider the effect of the Attorney General v. Hawkes on this case, but an examination of the statutes from 6 Geo. 4, c. 107, up to 3 and 4 W. 4., c. 52, had tended ■to confirm the view he had already taken.

* For previous proceedings in this cause see Spectator May 14, 1851, aiid October 4, 1851.