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AN IMPORTANT CASE., Issue 7978, 6 August 1889
AN IMPORTANT CASE.
The ‘ Press ’ thus reports the summing up of Mr Justice Denniston in the case of Bing, Harris, and Co. v. the Commissioner of Customs, heard at Christchurch last week:— Reference had been made to the harshness of the Customs in taking possession of these goods in an unusual manner, and innuendoes had been made as to the actions of a certain expert. Now the Customs had to deal with a number of experts, each firm having one or more to look after their interests. It was therefore necessary for the Government to have their expert. Now, as to the tyrannical exercise of power. Every importer, as was natural, was endeavoring to get his goods in at as low a rate of duty as possible, and could arrange so as to cut the matter with the Customs as fine as possible. It therefore seemed to him that if they liked to be their own exponents of the rates of duty and the headings of the tariff they must take the risk. It would at ouce be seen that it would never do for the revenue if importers were allowed to pass post entries, and simply pay the duty when they found they could not get their goods through. It was simply heads they win and tails they did not lose, because when they had paid the duty, if they did not succeed, they were in the same position as before. If the experiment failed they simply paid the duty, and if not, then they got the goods in free. This would suit the importers very well, and he thought the section (96) was made specially to make importers careful. The invoice had been looked at by Mr Patton and Mr Dick, and it did not seem to have suggested to them that these shirts were not buttons. These were points which he thought he ought to submit to them, because it had been suggested that the Customs bad acted harshly. So far as his experience went, it was not the way of public officers to exert their power harshly. At the same time, as Mr Rose had said, it was necessary to put their foot down. What importers should do, it seemed to him, was, as Mr Richardson had said, to make out the entry, and consult the department if they were not sure. Then they could, if they disagreed, take the legal course of bringing the matter to trial. This, of course, was subsidiary. He had prepared certain issues which would be submitted to them. Mr Harper had told them that the plaintiffs did not dispute that they had misdescribed the white shirts, but he submitted that the mistake was a bona fide one. Now, as to the lustres, so called in the invoice. They were not lustres, but were entered as silesias, and what the jury bad to decide was whether they were silesias, or such as could be described as silesias. Not a witness bad said they were silesias at all, and there had been a variety of different names given to the material, but no one had called it silesia. If it were not a silesia, could it be said that it corresponded with a silesia? The question seemed to him, whether, apart from the tariff altogether, it was a material that a tradesman dealing with it would take it as a silesia, or whether it was so nearly alike to, or belonged to, a group of materials corresponding to silesia. They would have to consider whether the name silesia had been applied to it with an honest belief that this was its proper name, or the nearest appellation, or was it done to get it through the Customs free, It was alleged that silesia being exempt from duty by the tariff, a temptation was offered to plaintiffs to enter it as such. The plaintiffs’ witnesses said: “ This being a material intended to replace silesia, we shall endeavor to put it in a class which will come in free. ” The object of defining tailors’ trimmings was, it seemed to him, to exclude these articles which are on the border line of clothing and lining, If it were not so, then the temptation would be great to make material nearer and nearer, so that it would come at lost to every person deciding for themselves whether it was clothing or lining. He did not see why the plaintifi'a did not select tailors trimmings as a general term rather than one article. The plaintiffs’ witnesses said that had it not been for the tariff they would describe the material as cotton piece goods. Therefore, it seemed to him that what would be cotton piece goods if it were not for the tariff would still be cotton piece goods. Some witnesses bad described cotton piece goods under the tariff to be goods made of cotton and put up in piece. If this were so, then the jury would have to say whether they could come to any conclusion but that these goods were cotton piece goods. Witnesses had said that the stuff could be used for skirts, dresses, and children’s dresses. They had also said that all linings should be free, but he could see no foundation for this. It was for them to say whether this material was of such a character as to correspond with silesia. As to the furs and fancy goods, in each case the importers had taken upon themselves to decide the question in their own favor. But apart from this it seemed a bona fide contention whether these goods had not been rightly described. Now furs was a general term, covering all kinds of furs. It had been stated that it was a trade term for made-up garments. He could not conceive a lady going into a shop and asking for furs and being served with fur trimmings. All the witnesses were agreed that fur trimmings should come in as drapery n.o.e. It seemed to be a mistake that they were described as furs, and it would be for them to say whether or not the importers should suffer for the description. The Customs took the view that the phrase furs was meant to cover all classes of furs. This would bo for the jury, on the evidence, to decide, as far as be could see. If it was to be dealt with on the question of the technical trade meaning of the word fur, it was for the jury to say. The same remarks applied to the bags and bolts, which was a question for the consideration of the jury. If the importers wanted to be strictly correct they might have stated the belts as apparel, and the bags as fancy goods. There was no question that belts were apparel, and the jury would havo to decide whether the putting of a bag on it entitled the importer to get the goods in at a lower rate of duty. If the bag was a mere appendage to the belt it seemed straining to say that it became fancy goods by the bag being on it. Let him put it to them this way: suppose that belts were 20 per cent., and fancy goods 25 per cent., would there be the same strong desire on the part of the importers to get this article admitted as fancy goods ? It was, however, for the jury to decide. A subsidiary issue had been put at the request of Mr Harper as to the intent. As at present advised, he did not think the question of fraud came into the case at all. The imEorters saw the risk themselves as to the ret case—that of passing the white shirts as buttons. It was peculiar to notice that throughout the whole case there was not a word of evidence as to how this word “buttons” first came to be used. Mr North, in error, marked the invoice “free,” Then came the peculiar point. Mr Harper had said that on the face of the invoice the Customs officer would at once see that they were white shirts; but when the same invoice, which was so apparent, was submitted to the head of the department he said they were buttons. It was for the jury to say what they thought of it. Mr Harper told them that it was impossible to make a mistake on the invoice, but they were now asked to say that there had been a mistake. As to the'smallness of the amount, if a certain number of these were successful a substantial result would accrue. Jf the Dunedin firm marked on the invoices “free” or “20 per cent.,” what was the use of the Christehnrch agent ? It might be suggested that if the Christchurch agent saw the invoice marked “free” he could enter it as buttons. This seemed to him to he what the plaintiff suggested by framing the issue. As to the second case of white shirts, 25 per cent, was marked on it, and Mr Patton stated that he took the mark for 20 per cent., and put it under what he considered would eome under the 20 per cent, limit. But while this was so they could not, he thought, attach the plaintiffs with fraud for what was a mistake on the part of Patton, As to the silesias and the plush belts and bags and fur trimmings, the plaintiffs had, as far as the latter were concerned, bona fide entered them as they thought. The silesia they would have to decide upon after hearing the evidence. He regretted he had bad to put the issue of fraud or no fraud, because he did not thick,
as he had said, that it entered into the coo* sideration of the case. But be bad put it at the request of the counsel for the plaintiff. The jury returned the following answers to the issues:—
1. Did the plaintiffs import a package containing goods not corresponding with the entry thereof in the case of the following: One case containing goods invoiced as white shirts ? Yes. Two cases invoiced as containing white shirts ?—Yes. One case invoiced as containing lustres?— Yes. One case invoiced as containing fur trimmings ? —No. One case invoiced as containing fur trimmings and plush belts and bags ?—No. 2. Did the plaintiffs cause to be imported or entered any package of goods as one denomination, but which was afterwards discovered to be other goods, as referring to the cases given above?—As to No. 1, Yes; as to No. 2, Yes ; as to No, 3, Yes ; as to No. 4, No; as to No, 5, No. 3. Was there any wilfnl misrepresentation on the part of the plaintiffs as to any of the entries ?—No.
The effect of the verdict is for the plaintiffs for the return of the goodi comprised in the cases of the fur trimmings and belts and bags, and for the defendant as to the cases of shirts and so-called silesia. The special issue as to whether the plaintiffs wilfully misdescribed the goods was found in the negative.
AN IMPORTANT CASE., Issue 7978, 6 August 1889
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