SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume VIII, Issue 651, 29 October 1851, Page 3

SUPREME COURT.

Joseph (late Samuel & Joseph) v. Carkeek. On Thursday the 23rd October, Mr. Justice Chapman gave judgment as follows:— This is an application for a rule calling on the plaintiff to show cause why the verdict in this case should not be set aside, and a nonsuit entered, or a new trial granted, ,on several grounds set forth by Mr. King, on moving for the rule. Most of these I have already disposed of, and on further consideialion I have nothing to add to what fell from me at the trial, and on hearing the application. On the two grounds for this motion which remain to be disposed of, and which alone go to the merits, I took time to consider. chiefly for ihe purpose of considering the application of the case cited by Mr. King, which was new to me, and was cited only from the abstract in Harrison. Since the "second trial I have thought it my duty to go over the whole case again, with especial reference to the wording of the Customs Ordinance as compared with the Engl) b Acts. I have also carefully considered the case of the Attorney-General v. Hawkes, and I can discover nothing to lead me to believe that the verdict is otherwise than proper. Hence it would only result in additional expense to grant a rule, where every argument and every consideration appears to me to have been thoroughly exhausted. First, as to the constructive removal. Some wearing apparel not included in the plaintiff’s entry is seized. Previously to lhe

seizure a cask, containing cruet frames, is given up by the Collector to the plaintiffs, at their request, and removed. This Mr. King contends was a constructive removal of the clothes. Now I must repeat what 1 have be- . fore said, that in construing penal statutes all such doctrines as “constructive acts”— acts innocent in themselves rendered wrongful by “ intendments’’ or by “relation” to some other acts, must be discarded, unless warranted by express enactment. This question of removal was put by ms to the jury, in some doubt whether I ought to have done so, but I gave at the same time my own opinion, with a caution lhat they were not bound by it, but must decide in accordance with their own judgment. They took the view which common sense, as it seems to m?, dictated ; and found that there was no removal. I have since carefully considered this point, and my opinion has undergone no change. The cask containing the cruet frames was voluntarily delivered up, and we must presume that the proper officer in the discharge of his duty had ascertained that there was nothing wrong about it. Samuel & Joseph wanted other packages, but that was refused, their correctness not having been ascertained. On examining the clothes some were found not comprised in the entry. These the Collector caused to be separated from the rest, placed apart, and seized. Of these goods so seized for want of due entry there was no removal. The unentered goods and the seized goods are the same. The goods taken away are those respecting which the Collector was satisfied. There being no evidence that any portion of the unentered and seized goods were removed from the warehouse, I do not think the removal of any portion of the entered goods delivered by the Collector to the plaintiffs can be made to operate on the seized goods by any mode of strained interpretation or construction. If the Collector had left the packages undisturbed (after satisfying himself of the fraudulent intention of the plaintiffs), and the plaintiffs had sent for the goods, there can be no doubt that the whole might have been seized on the very threshold of the Searcher’s office. If the plaintiffs had not sent for them, then the Collector might have warehoused them after three days, aud sold the whole after the momb, as prescribed by the 27th section.

As to the remaining point,—“ that the goods, although landed under and by virtue of a sight entry, were in the same position as goods landed ex ship without due entry,’’ I should not have thought it necessary to add a word to my former judgment, and to my direction at the trial, were it not that a careful review of the Acts of Parliament enables me (as I think) to throw additional light .on the proper construction of the Ordinance ; and bad it not been necessary to consider the case of the Attorney-General v. Hawkes. The proviso contained in the Act of Parliament 3 and 4 Will. 4c. 52, has no place in the repealed Customs Regulation Act (1825) 6 Geo. 4, c. 107 ; neither is it to be found in the New Zealand Ordinance—a copy of the New South Wales Ordinance, which was most likely framed on the model of the 6 Geo. 4, and not amended in accordance with the subsequent amendments of the ..English Act.

There seems every reason to believe that the sections in the Act of 6 Geo. 4, relating to entry and bill of sight (corresponding with sections 22 and 27 of the Customs Ordinance) were found to be defective soon after 1825; for in 1827 the 7 & 8 Geo,- 4c. 56, was passed with a remedial enactment, ushered in by a preamble, which would seem to have been framed upon the occurrence of a case exact’y similar to the one before us. “And whereas by one of the said Acts entituled an ‘Act for the general regulation of the Customs,’it is enacted that no entry nor any warrant for the taking of any goods out of any warehouse shall be valid, unless made in manner therein directed, and that any goods taken or delivered out of any warehouse by virtue of any entry not so made, shall be deemed to be goods to be taken without due entry thereof: and doubts have arisen whether such goods can be deemed to be taken or delivered until they be actually removed from the warehouse, and out of the custody of the officers of the Customs : be it therefore enacted that when demand shall have been made for the delivery, or for any order for the delivery, of any goods by virtue of such entry (meaning an invalid entry), such goods shall be deemed to have been taken or delivered within the meaning, &c.” Thus making mere demand equivalent to removal.

It is not difficult to perceive where this expedient would fail. The smuggler who had got some sort of intimation that his trick was detected, would be as likely to abstain fiom making a demand as from effecting a removal. The clause, in fact, still deft it in bis power to reduce a liability to seizure to a mere liability to sale in default of entry. Five years later another remedy was devised to meet probably some new for If. of frand P.=

the 2 & 3 Will. 4 c. 84, it is enacted that “ Where any package or parcel shall have been landed by bill of sight, and any goods or other things shall be found in such package or parcel concealed in any way or packed ' with intent to deceive the officers of the Customs, as well all such goods and other things as the package or parcel in which they are found, and all other things contained in such package or parcel shall be forfeited.” This clause was introduced the year after the Attorney-General v. Hawkes was decided; * and seems to provide for what that case of concealment would have been, had there been nothing to show fraud in the sight entry itself, for without such enactment concealment alone would not work a forfeiture. This clause it has been thought necessary to retain in the 3 & 4 W. 4, c. 52, in addition to the proviso; yet we may easily conceive the difficulty of proof to which it would occasionally give birth. It would be a matter of dispute and doubt, except in a very palpable case, what would amount to “ concealed in any way,” or what mode of packing ought to be deemed “packed with intent to deceive, &c.” Hence in the Act of the following year, the .gordian knot of all these difficulties was effectually cut, by the proviso so often alluded to in this case. Can it be doubted, after reading these clauses in chronological order, that the very difficulty before us had arisen in England, that the very defect now apparent in our Ordinance was discovered in the 6 Geo. 4, c. 107, some time between 1825 and 1827, and that the cited clauses are so many attempts to remedy and meet the “doubts” recited in the Act of 1827. Not one of these clauses is in the New Zealand Ordinance ; and a subsequent Act 6 & 7 Vic. c. 84, sections 3,4, and 5, establishes further securities in the case of sight entries, which are worthy of adoption here. On examining the case of the Attorney General v Hawkes, I find it has very little bearing on this case. It is not under the Act of Parliament from which the clauses in our Ordinance now in question are copied ; it is not a proceeding similar to this or to the information out of which this action grew, the facts, •moreover, are entirely different. It is an information for penalties under the 36th and 45th section of the Smuggling Act, (6 Geo. 4, c. 108.) The first count is to recover the .penalty of £SOO for “ offering a bribe” to the officer, the other counts for the penalty of £IOO “which the Commissioners had elected to take in lieu of treble the value of the goods” for unlawfully unshipping “ bugles” (a kind of glass bead.) The facts were these : —The importer, by means of the affidavit then required, took out a bill of sight for “ a case of toys.” W hen the case was landed and examined it was found to contain a false partition and concealed compartments, within which were hidden certain bugles. The whole evidence showed a guilty knowledge and fraudulent design from the very beginning. While the officer was trying the suspicious part of the case with a gimblet, Hawkes, the defendant, said “ what are you about, ? You will break the glass. He also said, “ here are some bugles, I will give you £lO if you will say nothing about them.” This showed that he was aware of the bugles being concealed in the case at the time he described it in his affidavit and sight entry as a “ case of toys nay, more, it showed that the case had been carefully prepared for smuggling at the ship, ping port, and that Hawkes must have known it. The affidavit and sight entry were false and fraudulent, and the judgment of the Court, supporting the counts for both the penalties, turned wholly on this, and not on any doctrine of relation—not even on the concealment taken alone. “ The bill of sight,” said the Chief Baron, “ was no protection, because it was a fraudulent measure.” It is scarcely necessary to point out the many distinctions between the two cases. Samuel & Joseph did not make a false sight entry specifying one description of goods well knowing the cases contained another kind of goods; there was no fraudulent concealment by means of false partitions, so as to show, taken with conversations and other evidence, fraud and guilty knowledge from the very beginning. The sight entry did not specify the goods, there was no evidence whatever of any fraud or irregularity in the sight entry itself, as in the cited case. Nothing wrong appears until the perfect entry is made, and that omits the goods subsequently seized. Moreover, I think it may be collected from the early part of the judgment of the Chief Baron that the “ bugles” intended to have been smuggled were not in the ships’ report and manifest. I can, therefore, come to no other conclusion upon the facts of this case, than that it is pre- - ciseiy the kind of incipient and inchoate fraud, as I will can it, as may be supposed to have produced the “doubts” (recited in the 7th and Bth Geo. 4th, c. 56) whether goods could *be deemed to be “ taken” or “ delivered” until they be actually removed—just such a case as the “proviso” in the more recent Act was intended to remedy. It seems to roe,

that on any other supposition, the proviso would have been uncalled for and without meaning. It is to be noted also, that the proviso is not declaratory but enactive ; that is, by enacting that the law shall be so and so, it implies conclusively that without it the law was otherwise. Mr. Baron Parke’s interpretation of the proviso* in his judgment on the Attorney General v Hurel fully bears out this view. The same rule applies to th? enactment that concealment shall work a forfeiture ; without such an enactment, mere concealment would not have justified a seizure, and in the Attorney General v Hawkes it is is only viewed as part of a lot of evidence to show that the entry was fraudulent within Hawkes’ knowledge. As to the use of the words “ provisionally landed,” nothing can turn upon that. Goods, landed under a bill of sight are, in fact, and always were, landed" provisionally,” whether the Act or Ordinance says so or not. It is not a little curious that both the learned counsel on a former occasion endeavoured to draw an inference from these words in favour of their respective clients. If the necessity for the proviso is only generated by the use of the words “ provisionally landed,” in the clause of the Act o! Parliament relating to the bill of sight, why did not the Legislature leave the clause as it stood in the 6th Geo. 4th, c. 167, and as it stands in our Ordinance ? i. e., without the words in question. For these reasons, I think no groundshave been shown for disturbing the verdict, and the application for a rule must therefore be refused. * The proviso is as follows :—“ Provided, that if, when full or perfect entry be at any time made for any goods provisionally landed as aforesaid by bill of sight, such entry shall not be made in manner hereinbefore required (all the requirements of the Act are similar to those in the Customs Ordinance) for the due landing of goods, such goods shall be deemed to be landed without due entry thereof, and shall be subject to the like forfeiture accordingly.”