SUPREME COURT. Wellington, Monday, September 29th, 1851. Before Mr. Justice Chapman. Samuel (deceased) and Joseph v. S. Carkeek, Collector of Customs. (Special Jury.)

New Zealander, Volume 7, Issue 580, 5 November 1851, Page 3

SUPREME COURT. Wellington, Monday, September 29th, 1851. Before Mr. Justice Chapman. Sam uel (deceased) and Joseph v. S. Carkeek, Collector of Customs. (Special Jury.)

This wag an action to recover damages for an alleged wrongful seizin c of goods under the Customs Regulation Ordinance. Mr. lla*i appearod for the plaintiffs, and Mr. King for the defendant. Mr. Hart stated the plaintiffs' case, from which it appeared they had imported certain goods by the Beikshre, which had been sent on from Nelson by the Woodstack, and tho invoices of which were sent by another vessel. The goods wore landed under a sight entry and a complete entry was made on the 27th February, IH50; oa the following clay the goods were seized. The case was heard before the Magistrates, and the first information dismissed. A second information was laid, and the goods were subsequently condemned. The defect was that there had never been any removal of the goods, as requited by the Ordinance. The plaintiffs applied to amend their entry, but their application was refused, and the goods were sold. The following witnesses weie called: — Wir.MAM Uadcock, formerly clerk to Mr. Ross, Solicitor, proved the service of action on defendant on tho <2 Ltb July, 1850. 11. R. Si ham., Registrar of Supremo Court, produced the writ of summons m the action. Ciiahlls Sharp, Harbour-Master and Tide Surveyor, was instructed to lay an information against plaintiffs for certain goods landed without entry; the goods were sold by auction by Messrs. Bethune and Hunter, and tho proceeds placed in the Union Bank ; tho entry was made by plaintiffs as for a good entry; the packages were found to contain other goods, these were seized, and are the goods comprised in tho list made out by Mr. Kades. Cross-examined —No duty was paid on the aaized goods, which were landed by sight entry; the sight entry is where the importer has not information to make a perfect entry ; believes Mr. Samuel made search on the 27tu Febiuary ; the declaration of value by plaintifls for the goods they did enter was £327 10s. ; the importer is required to make a declaration of the value and correctness of the entry, and the entiy alluded to by witness was tbe one so made ; witness had suggested to Mr. Samuel the necessity of being move careful ; the value of seizures are distributed by order of the Commissioners of Customs, but no orders have been received in this case. Re-examined— Mr. Ross appeared before the Magistrates for plaintiffs ; he opposed the condemnation and claimed tho goods ; witness is not aware that any offer was made to amend the entry ; one case was described as a case of Guernsey frocks, there were a few frocks, ! and more valuable goods underneath. Edward Catchpool, First Landing Waiter, recollects \ Mi. K. Samuel attending at Custom House respecting the entry of the goods in question; it was the duty of • witness to receive such entries ; the goods seized were contained in cpvtain packages comprised in a sight entry, and landed under sucli bight entry; Mr. Ross and plaintiff applied to know whether the plaintiffs could amend the entry, and witness referred them to the Collector ; this was eight or ton days after the seizure ; the I goods being landed under a sight entry are protected to the time of making the entry. Cios.s-exiunmed— The Collector, after a seizure, has no power to allow an entry to he amended ; it is the practice of tho Custom House to seize goods improperly entered ; the money is in the Union Bank to the credit of an account called " seizuies and penalties' account ;" no entry was made of the seized goods and no duty paid. Illicit Ross, Solicitor for plaintiffs, received instructions ftom them touching certain goods seized by the Customs ; had several interviews with tho Collector, who infused to take an amended entry, and said he intended to lay an infoitnation ; plaintiffs were summoned on the 15th M.irch, and witness attended at the Resident Magistiate's offico for them ; that information was dismissed •, Mr. Samuel made application to amend the cutty, but it was refused ; on the following d.iy fie^h summonses were served, and witness attended on the 18th March, at the Police-office, when the case w;is gone into and tho goods condemned ; witness again applied to tho Collector to bo allowed to amend tho entry, but he stated ho should adhere to the seizure; in tho Gomnment Gazelle of the l2Ui April an advertise- I ment appealed of a sale of condemned goods, to take plsice the 23id Apul; witness applied to Collector to know the name of tho soumg officer, but he dechued to jnfoim him ; witness then informed the Collector he fihould bo compelled to piocoed against him, and he said very well. Ciowj examined—Attended at the Magistrate's Court on the 18th March ; gave no wntten notice of claim to Customs, but tho goods were vei bally claimed fifty f lines; the application to amend was made as mattei of u»ht, but wiiuess offured to put it in Ike form of a mpuest.

RoßLiti Lamufrt, Cleik to Messrs. Bannatyne & Co., Agents for Mr PracooJ:, delivered certain letters to plamtills on thol2th March, 1860, theie was an mvoicu and bill of lading. Ooss-examined —Plaintiff asked witness for a memorandum ; the invoice and bill oflading were opened in presence of witness; plaiulin" said, these are the invoices we have been expecting and which we ought to have received by the vessel. Kcnnt ni BLTiit/Nr, Meicliant, was employed to sell the goods in question, the proceeds, amounting to £197 2s. 9d., were paid to Mi. Carkeek ; was aware they weie the seized goods of Messrs. Samuel and Joseph ; there weie plenty of biddeis at tho auction. Cioss examined —We have a good deal of Customs business; in making a " perfect entry" after a sight entry, and after examining the goods, witness should s»y the party ought carefully to have examined them ; such an omission looks suspicious at the very least; tho fair trader could not compete with the party who niatlo such an entry; the cheque we paid went to oui debit. This was the case for plaintiffs. Mi. Kino, for defendant, moved for a non-suit; but his Honour having decided, there was evidence to go to the jury, M*. King said he pioposed to show that ceitain goods included in the beizure were removed, and that this was done to prevent the disclosure of the frauds by plaintiffs. The following witnesses were called :—: — William Eadis, clerk of Customs—Was clerk on 27th February, 1850 ; the si^ht entry is signed by K. Samuel ; the goods were landed under the sight entry ; on being landed they were taken into the Scatcber's office; witness was landing waiter at the time, but it was his duty to search goods along «rith Mr. Sharp ; Mr. Samuel inspected the goods on the 27th February, and the complete entry was passed the same day • this entry was accompanied with a declaration at tho back, purpoiting that the entry was a true one ; the omission makes the declaration untrue; No. 125 cask, part of the goods in the import warrant, was delivered to plaintiffs ; after Mr. Samuel passed his entry, be took delivery, and removed package 195 ; this was after tho examination by plaintiff on 27th February; he wanted to take two more, hut witness declined to allow him ; witness inspected a portion of the goods on the 28th ; the list produced contained goods not entered ; the seizure was made on the 28th February ; from circumstances that had previously occurred, witness was in- ! duced to make the seaich ; witness wrote to plaintiff, I because the office was full; the letter does not allude to the seized goods, but to those on which duty had been paid; it js usual to giro parties notice to taLe away their goods ; witness saw Mr. Samuel on the 26th. | at bis own bouse, and told him all bis packages had been landed, except two which had b^on landed in the morning; he said be would come down and pass tho entiy; in the subsequent conversation plaintiff asked whether the goods seized were to be sold; two or three days after writing the letter the goods on which duty had been paid were delivered to Mr. Samuel. Chatles Sharp, —Was present the greater part of the time when the goods were examined by Mr. Eades; they wore compared with the entry, and those not in the entry were put aside ; where goods are meiely undervalued, a post entry is allowed; where they are omitted from the entry they must be levied, no post entry is then allowed; the vessel was reported 18th February; when a ship arrives, a tide-waiter is put on board to see no goods are landed without warrant; that possession lasts until the goods are discharged. John Harding, ironmonger—the late Mr, Samuel offered witness swne plated goods for sale, which be believed were from the Berkshire. Mr. Hart, for plantiffs, neither could there be no doubt the goods were the property of plantiff's neither could there be any doubt as to the seizure ; but contend that, under the Ordinance, there must be a removal of the goods to render the seizure lawful: and that no evidence had been offered of any removal of the seized goods. Mr. King, for the defendant, said there could be no ! doubt an attempt bad been made to commit a gross ( fraud j the plantiffa made a sight-entry on a declaration, that they had not received their invoices; when the ! goods were landed, they examined them, and made a i perfect entry; if the entry is fraudulent, and the goods were landed, they become at once liable to seizure, and he contended that the doctrine of i elation made the 22nd 1 section of the Customs Ordinance apply to this caso. I Mr. Justice Chapman after some preliminary obserrations on the history of the case told the jury I that the lawfulness of the seizure would depend^ on their opinion whether there bad been a removal. The goods were landed by virtue of a sight entry. They were therefore taken lawfully from the ship. Mr King contends that by reason of tho " invalid" entry the taking from the ship was unlawful, by what we call relation. Under tho English statute it is so, but there is an express provision to that effect. It was | difficult to comprehend why it was omitted bore, for , the 2/th section, relating to the sight entry, is nearly a word-for-word copy of the English Act, stopping short at that provi&ton which says that if the perfect entry be false (as this most assuredly was) the landing shall be deemed and taken to be, under and by virtue of such false entry, and the goods shall be liable to forfeiture. But as our Ordinance does not contain tbat provision, and in favour of the subject penal statutes must be construed strictly, the doctrine of relation cannot be applied so as to make the unlading illegal, and therefore the other cause of forfeiture must have place, namely " removal from tha warehouse," under section 22, to render the goods liable to forfeiture. (The 27th section was read.) That section clearly points out the course for want of "perfect entiy." (22nd section read.) That section describes a '' valid entry." and of course any other entry not complying with tho law is an invalid entry. Mr. King suggests that the goods comprised m the entry being removed, that must be taken to apply to the goods not removed, but seized. But the Collector, or his officer, had first separated tho non-entered goods from the packages, and then wrote to Samuel & Joseph to say they might take their goods, and Eades explains that the letter of the 2nd March applied to the entered goods, which the Collector voluntarily gave up, and not to the seized goods. The jury, therefore, will have to say wether there was any removal of part of such goods. ("Evidence of witness Eades as to cask No. 123 read.) Whether this evidence satisfied them of a lemoval he should put to the jury; to him, the Judge, it seemed scarcely to be connected with the seized goods, or any part; but although be might give them bis opinion, he warned them that they were not at all bound by it, but must judge of the removal as a point of fact for themselves. If they found tbat there was a removal they must find for the defendant, if not, fcr plaintiff. In the latter pase what was the measure of damages! The only evidence of value was what came into defendaDt'd.hands (£197: 2s. 9d.) Mr, Bethune was asked whether goods did not sell for less at auction than otherwise. He gave an answer that no political economist could except to —" sometimes more sometimes leas." No doubt when goods were scarce and the competition of the buyers active there will be tendency to a high auction price. As a general rule, the auction pi ice is the fan- wholesale market price. If there had been any other evidence of value, be should still, under the power given him by the Ordinance, have told them to give only the bare value (in the event of their finding for plaintiff*.,) for no one who has heard the evidence can doubt tbat tho Collector had (> reasonable and probable cause" for the seizure; it was a gross attempt to defraud the levenue. The jury found for plantiffs—damages £197: 2s: Bd. adding, " the jury are of opinion that this is a case of evident intention to defiaud the levenue, and regret that thiough the incompleteness of the seizure according to the statute (ordinance; the plantifts have escaped punishment." Mr. King applied to the Judge to certify to deprive the plaintiffs of costs under 93rd section of the Customs Oidmance. The learned Judge was of opinion that there was reasonable and probable cause for Vbo seizure and he should certify. lie also added, "I wish to say that I concur in the remarks of the jury."

Thi Hot Baiii. — The hot hatli, directly and in a very limited time, raise the temperature of the body, increase the circulation, cause a general glow over tlio mij face, and ultimately induce profuse perspiration. The tempeiature should be moileiate upon cntenng the bath, and ailer wards gradually l.i.sed. Upon the iucipuint symptoms ol'cold presenting thpnifolves, '.v timely evening vvaiui bath has frequently banished the tuic»te»jng enemy. It is emphatically " the friend of the rheumatic," and gives loliel' when all othci mcmsi deny it. No bath is noie emmeutlv clen»°>rn<> than the waim. bath oi 96 to i()o degices. Tt lelaKes the whole cutaneous surface, and thoioughly puniies the body. The dolights thus expeueiK'ort an- not r.iiilv dpscabed j but when they are felt, not rneicly .it the time, but for days alter, moie could not be baul m their piaiso. Everyone with any reganl lor a sound body, and dosiious of bodily sensations ovei agiewble, vill ficcly paita'uo of thii? luiuiy.