SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume VII, Issue 603, 14 May 1851, Page 3

SUPREME COURT.

Samuel and Another against Carkeek. In this case Mr. Hart had obtained a rule nz’si, calling upon the defendant to show cause whv the verdict in his favour should not be set aside, and a new trial had on the ground that the condemnation of the plaintiffs’ goods by the magistrate, for an alleged offence under the Customs Regulation Ordinance, ought not to have been admitted as a bar to the action, inasmuch as it was defective in sub - stance. It was contended, that the condemnation showed no offence under the ordinance. It merely set forth a false entry—namely, that the packages of goods in question contained certain articles w’hich were not in the entry, but it did not appear on the face of the condemnation that the goods were unshipped, ’ or “unladen,” or “taken away,” or “ removed from a warehouse,” by virtue of such 'undue entry,” so as to incur forfeiture under the 22nd section. Nor did the condemnation show any other cause of forfeiture. The goods were, in fact, landed under a sight entry. It might be conceded that the entry was false and void, as stated ; but the goods were never removed, and the ordinance contains no such proviso as the English act contains, enacting that when the perfect entry is not in compliance with the act, goods landed by bill of sight shall be deemed to be “goods landed without due entry.” He cited the Att. Genl. v. Hurel, 11 M. & W. 585.

Mr. King now (April 17thl showed cause. He should contend—1. That the condemnation as read was an effectual bar to this action, and the Court cannot look at the averments. -- -he Court should be of a contrary opinion, ne should show that in fact the condemnation did disclose an offence under the Customs Ordinance, so as to constitute a good cause of forfeiture. _ First ; It would be enough if the magistrate had said simply “the goods are forfeited,” without stating any more. A condemnation differs from a conviction for penalties ; the former changes absolutely the property in the thing, and the Court cannot look further. This is equivalent to a condemnation by the Court of Exchequer, and after such condemnation trespass does not lie to try the forfeiture over again. Scott v. Shearman, 2 Wm. B. 976. Nor can a conviction be tried on a collateral issue.—Earl of Radnor v. Reeve, 2 Bos. and Pul.

Mr. King then referred to the 59th and 90th section of the Customs Ordinance. That section with the schedules shows that no form is necessary in the case of condemnation—but only in case of conviction. The forms are confined to convictions, and why ? because a conviction for penalties affects the personal liberty of the offender. What we contend for goes to this extent—that the condemnation in rem is an absolute estoppel, and that a mere declaration or sentence signed by the magistrate, to the effect that “ the goods are forfeited,” is a complete bar, and the Court cannot disturb it. The King v. Jukes, BT. R. 541. The plaintiffs might have removed the proceedings into this Court—not having done so they are in the position of a party who has appealed unsuccessfully, i.e. the judgment of the Court below is final. Brittain v. Kinnaird. 2 Bro. & Bing, is in point as to the conclusiveness of a judgment in rem, so is Allen v. Sharp, 2 Exch.

But secondly : The condemnation is good upon its face. The tenor of the whole Customs Ordinance must be considered, and it is sufficient if any one part applies, or if an offence is shown by taking several together. The sections which may apply afe the 11th, 12th, 16th, 19th, 22nd, and 27th. xne 11 th section enacts that goods landed before “ due report and due entry,” and goods not duly reported, shall be forfeited. [Judge—That section relates to what is called the ship’s report on arrival. If goods are found in the ship, not included in the ship s report and manifest, they may be seized as forfeited, and the master fined.) It is submitted that the section applies to the case. The 90th section enacts, “ that every conviction or warrant of commitment for any penalty (without mentioning condemnation) shall be deemed valid and sufficient, in which the offence for which such penalty shall be inflicted, or the cause of such forfeiture, is set forth in the words of this ordinance.” This condemnation does more than that; can it be contended that such excess makes it bad ? No one can doubt, Ist, That the entry is false—and its falseness is very fully set out in the condemnation. 2nd. The goods must have been landed. 3rd. They could only have been landed by virtue of an entry, hence the Court will infer the connexion between the landing and the false entry. In this way the complete offence is fully shown, though the words of the ordinance are not used : nor need they be, the condemnation will be good “ if the cause of such forfeiture is set forth in the words of this ordinance,” but it will be equally good if the offence be described in any other words. The 22nd section is therefore fully satisfied. The Court cannot import into the condemnation that the landing was under a sight entry. [Judge—ln what took place at the trial it was admitted on both sides that such was the case.] The Court cannot infer that from the condemnation.

which shows, Ist, a landing, and 2d, a false entry; and the two taken together incur a forfeiture. The Queen v. Johnston, 8 Q. B. 102, shows that a statutory form of conviction need not be exactly followed. The ®. Hurel will be relied on by the other side —that case shows that the forfeiture accrues not when the false entry is found out, but it relates back to when the act is done. It is, in fact, the false entry that works the forfeiture, and not the “ unlading” or the “ removing,” both of which are in themselves innocent acts. The goods, when landed, are in fact in the possession of the Crown, and the Crown’s right cannot be defeated except by a valid entry. Hence no such valid entry having been made, the goods are still in the crown. On every ground, therefore, we look with some confidence that the Court will not disturb this verdict, but will discharge the rule. Mr. Hart in support of the Rule— The condemnation can only be received as a record, and the Court cannot look out of it, for instance, to the depositions as contended. [Judge— That must be conceded.] It is contended on the other side that if the condemnation had merely declared the goods seized to be forfeited, it would be enough. But that cannot be supported, and indeed it would be most mischievous to permit justices merely to state a condemnation without showing any offence. Bums’ Justice lays down the rule, supported by numerous cases, that convictions and other judgments may be disputed for not shewing jurisdiction, and for fraud or collusion. The facts stated by the magistrate on the face of the conviction must be taken to be the whole of the facts before him, and if they are insufficient to show that a forfeiture or penalty has been incurred, the conviction will be bad. A penalty cannot be incurred by inferred facts imported into the conviction when the stated facts show no offence. The Court is asked to infer that the goods were landed under the false entry; how can it dothat where other states of facts are equally possible under the ordinance ? A landing under a sight entry being as reasonable an inference as landing under the false entry—there should be something on the face of the condemnation to negative the operation of the protective clauses. _ Penal statutes must be construed strictly. Bums' Justice may be again referred to, and it is unnecessary to cite cases in support of that principle. We admit that our entry was void, but that is all. We deny that anything was done to incur a forfeiture, and no fact whatever is stated on the conviction beyond the single fact of the void entry. Magistrates must state the offence strictly and with certainty, because they are not legally educated persons, and the Court will require to see their judgments and sentences are right. If it were otherwise, there would be no safety for the subjects. The 11th section of the ordinance relied on by the other side does not apply—it relates only to the ship-master’s report.—Attorney-General ®. Bailey Exchr. shows that. The only sections enacting forfeiture are the 21st, 22nd, and 27th. Our entry was simply invalid, and we admit it to be so. It was inoperative for any purposes. Plaintiffs could not unship or remove the goods under that invalid entry —and they did not. No injury was done to the Crown—the Crown had possession of the goods, and the officer would of course not let them go until due entry was passed. The section of the English Act (3 and 4 W. 4, c. 52) corresponding with the 27th section of the Customs Ordinance, has a proviso making a false complete entry vitiate the landing under a bill of sight, and that notwithstanding the word provisionally. [Mr. King submitted that the English Act was not in force in this colony. Judge—lt is not cited as in force, but merely as an argument that, without such proviso, AttorneyGeneral v. Hurel could not have been decided-] The 27th section points out specifically what ought to be done in the absence of a complete entry valid in law. If the importer neglects to make a perfect entry, good in all respects, the goods are to be sold. Not one word of forfeiture. But a sale by the Customs officer is in itself penal, and the clause shows precisely what course the Collector jought to have pursued. The real danger to the revenue is not from a false entry, but from a removal of the goods. There is not one word on the face of the condemnation to show that the goods were improperly landed—or that they were improperly removed, nor is any thing shown by which a forfeiture was incurred. Forfeiture is incurred where goods are landed or taken away by virtue of a false entry not by making the false entry. The goods might have been first warehoused and then sold, and that is all. The real question is, does the condemnation show any offence? Without some inference or intendment, or construction by the Court as claimed on the other side, no “removal,” no “landing’” no “ taking away” can be collected, and that, it is submitted, is a course the Court cannot and will not take. It would be most dangerous and mischievous if the Magistrate’s act cannot be looked narrowly into. If any inference is to be drawn, it can only be that the goods were properly landed undei the 27th clause. The goods, in fact, were legally imported and legally landed, but a false entry was afterwards made. But that does not incur a forfeiture, because they were neither landed nor removed by virtue of such false entry. The ordinance shows precisely what course the Collector ought to have adopted—he might have detained the goods, and after the time mentioned in the ordinance he might have sold them, but without a removal from the warehouse he could not seize them and proceed to forfeiture. Notwithstanding the confidence expressed on the other side, we too have great confidence that the Court will not give effect to a judgment which does not disclose sufficient facts to give jurisdiction, but will make this rule absolute. His Honor, in giving judgment, said— This is a rule for a new trial. The action is brought by the plaintiffs against the Collector of Customs, to recover compensation in damages for the alleged wrongful seizure of certain goods imported by the plaintiffs in the Woodstock. At the trial an adjudication by the Resident Magistrate was offered in evidence for the defendant, by which the goods in question were declared to be forfeited, and were condemned accordingly. To this I gave effect as a judgment in rem conclusive in bar of the action. For the plaintiffs it is contended that this conviction and sentence of condemnation ought not to have been admitted as conclusive, or indeed as evidence

at all, because it does not disclose on its face all the facts necessary to constitute an offence under the “Customs Regu'ation Ordinance,” or in other words, necessary to give the magistrate jurisdiction. On the part of the defendant it is contended that the magistrate’s sentence of condemnation being a judgment in rem was properly admitted as an absolute bar. That it so altered the property in the goods, from the moment of seizure, that the Court cannot look to the sufficiency or insufficiency of the facts set forth ; that indeed it would have been enough if the judgment had merely stated that “ the goods were condemned as forfeited.” But even if the conviction be examinable by the Court, the facts disclosed are sufficient to show a proper exercise of jurisdiction, inasmuch as they show a complete offence under the ordinance.

Thus, then, there are two points for the Court to consider:—

1. Is a conviction by the Resident Magistrate (who for this purpose performs the function of “two justices”) embodying a sentence of condemnation conclusive, even although the facts set out may not be sufficient to give the statutory jurisdiction ? 2. Supposing the conviction to be examinable by the Court, are the facts sufficient as disclosing an offence incurring forfeiture under the ordinance?

As to the first point, I am of opinion that the conviction is clearly examinable, and I know of no distinction in this respect between judgments, sentences, and convictions in rem, and those in personam. The rule is, (1), that where judges and others exercise a statutory jurisdiction, their judgments and sentences must show all the facts necessary to give them jurisdiction; but (2) where such facts are duly shewn, they cannot be afterwards controverted in any collateral proceeding. This distinction •is very clearly laid down in two recent caseswhere the rule was applied to orders in equity made by very high judicial authority. In Christie v. Unwyn, 11 Ad. & Ell., 379, the first branch of the rule was thus broadly stated by Mr. Justice Coleridge—“ We cannot Intend for or against the order, but must decide according to the words. However high the authority •may be, where a statutory power is exercised, the person who acts must take care to bring diimself within the terms of the statute. Whether the order be made by the Lord Chancellor or by a justice of the peace, the facts which give the authority must be stated.” The other case is that of in the matter of Clarke, 2 Q. 8., 619. There an order made by the Master of the Rolls stated that the prisoner was brought to the bar of the Court of Chancery, &c. An affidavit was offered to contradict this, and show that he was in fact taken to Lord Langdale’s private house.; but all the facts necessary to give jurisdiction being stated, the Court refused to permit the fact in question to be controverted or even to look at the affidavits. Mr. Justice Patteson stated the distinction briefly and clearly: “Brittain v. Kinnaird,” said his Lordship, “ shows that a fact directly stated in a conviction is not to be controverted. Every order must show facts sufficient to give jurisdiction ; but the facts, if so shown, are not to be contested.” Britain??. Kinnaird indeed, on which Mr. King relies, does in fact show this distinction, and is therefore an authority against the defendant on this point. It was a conviction under the (repealed) Bumboat Act, by which a certain “boat” was condemned as forfeited. In an action of trespass brought for the alleged wrongful seizure, an attempt was made to show that the boat was in truth a ship. The Court went so far as to say, in answer to a suggestion by counsel, that if it had been a seventy-four, the facts could not be contested; but the judgment contained this reservation, “provided the conviction shows no defect on its face.” The same distinction appears in Allen v. Sharp, 2 Exch. 352, cited by Mr. King, in the Queen v. Bolton, 1 Q. 8., 66, in which Brittain v. Kinnaird is approved of, and in many other cases ; and so imperative is this rule, that even if a form of conviction given by a statute, be manifestly insufficient, it will be bad. In general, ’ said Lord Denman, in R, v. Johnson, 8 Q. 8., 102, “ I should be disposed to say that where a statutory form had been followed the conviction was good : but some restrictions have been imposed on that proposition ; because, if the form given by the schedule does not contain all the particulars required to make out the offence, a Court cannot say that an offence has been committed.” Scott v. Shearman, 2 Wm. B. 976, was agood deal pressed upon my consideration at the trial and in the course of the arguments, in favour of the unqualified proposition that a condemnation in rem cannot be questioned ; but on submitting that case to a careful scrutiny, it will be seen that a condemnation good and valid on its face must be * understood. There, no question arose as to the validity of the judgment to effect the condemnation ; but the plaintiff bad a verdict by means of extraneous evidence controverting the facts, and it

was held that the forfeiture could not be so tried over again. Beyond this the authority 1 of Scott v. Shearman cannot go, but for what < was really controverted, and what the case de- i cides it is law to this day. I know of no rule ' which exempts the judgments of the Court of ’ Exchequer exercising a statutory jurisdiction, i from those tests which are applied to the decrees and orders of the Lord Chancellor. No doubt a superior court of record, acting within its ordinary common law jurisdiction, need not show it, (Peacock v. Bell, 1 Saund., 73); but where such court exercises a power given by statute contrary to the course of the common law, it must do so. —(Per Parke B. in Harrison v. Wright, 13 M. .& W., 818.) But this conviction, like those most commonly called in question, and especially like Britain v. Kinnaird, is by a magistrate acting under statutory authority, and undoubtedly that authority must be shown. I therefore proceed to the second point, namely, whether the conviction involving a sentence of condemnation, shows upon its face facts sufficient to constitute an offence incurring a forfeiture under the “ Customs Regulation Ordinance ;” and this was the material point raised at the trial. The Customs Regulation Ordinance is highly penal. Not only is it full of directly penal clauses, but its provisions as to costs (sec. 98), and its restrictions as to what a plaintiff may recover (sec. 93), are in themselves of a_ penal character. The principle, that a penal statute must be construed strictly, has always in modern times been maintained. “ The principle (said Lord Abinger, in Henderson v. Sherborne, 2 M. & W. 239), adopted by Lord Tenterden, that a penal statute ought to be construed strictly, is not only a sound one, but the only one consistent with our free institutions. The interpretation of statutes has always, in modern times, been highly favourable to the personal liberty of the subject, and I hope will always remain so.” Revenue acts are also so construed. The conviction sets forth an entry of goods false in point of fact. Certain goods were enumerated in the plaintiffs’ entry. .On examining the packages they were found to contain a large quantity of goods not mentioned in the entry. These the collector seized as forfeited. The resident magistrate who heard the case convicted the plaintiffs of the offence laid in the information, declared the goods to he forfeited, and condemned them. The conviction sets out the plaintiffs’ entry at full length. It then states that “ the said goods were not properly described in such entry by the denominations, and with the characters and circumstances according to which such goods were charged with duty, the packages containing, in addition to the goods enumerated in such entry, the following goods”—(and here follows an enumeration of all the goods omitted), the conviction then proceeds—“contrary to the form of the ordinance in such case made and provided ; which offence has been duly proved before me, the said resident magistrate. Ido therefore adjudge that the said Kauffman Samuel and Jacob Joseph have forfeited the following goods,” again enumerating them. In terms, then, the conviction is confined to the false entry ; and on referring to the ordinance, it will be found that a false entry, taken alone, in no case incurs a forfeiture, except by section 11, which (except in so far as it is connected with the 22d section, relates to the ship’s report. No doubt

under that section, if the master, in reporting his cargo, omit any customable goods, they may be seized as forfeited, and the master be fined. But this conviction was clearly intended to be brought under the 22nd section (excluding the protection of the 27th), for it pursues the very language of that portion of that section which enacts, that “no entry shall be deemed vaiia unless the goods shall be properly described in such entry by the denominations, and with the character and circumstances according to which such goods are charged with duty, and may be imported.” So far the conviction shows that the entry was not a valid entry within the meaning of the ordinance. The section then goes on to specify the acts which incur a forfeiture—“ and any goods taken or delivered out of any ship, or out of any warehouse, by virtue of any entry or any warrant not corresponding or agreeing in all such respects, or not properly describing the same, shall be deemed to be goods landed or taken without due entry thereof, and shall be forfeited;” and this refers to a portion of the 11th section, which forbids “ the unlading of any goods before due entry in .manner hereinafter directed.” I think, therefore, that, in order to constitute an offence under the 22nd section alone, or read in connexion with so much of the 11th section as relates to the unlading of goods without due entry, the conviction should have I shown that the goods were “unladen without due entry,” or “taken out of the ship or out of the warehouse by virtue of such undue entry.” Mr. King contends that the entry being false and invalid, and the goods out of the ship, the Court w ill presume a close connexion

between the two facts, and that the goods were landed by virtue of the undue entry, and not otherwise. But he himself furnishes an answer to this, by contending in another part of his argument, thattheconviction beingsilent as to a landing by bill of sight, the Court cannot assume they were so landed, and in this last respect I think he is correct. In the language of Mr. Justice Coleridge—“ We cannot intend for or against the conviction;” and this is especially true as to the Customs Ordinance, inasmuch as it shows two other possible modes of landing goods, namely, under the 21st section for want of entry, and under the 27th section by virtue of a bill of sight. This judgment therefore proceeds solely on the consideration, that howsoever reprehensible the conduct of the plaintiffs may have been, the conviction omits to state any act done by them which by the ordinance incurs a forfeiture. I cannot, however, close my ears to what was repeatedly stated and admitted in argument on both sides, especially at the trial, namely, that the goods were in fact landed by a bill of sight, and that the false entry was made as the second, or “ perfect entry,” required by the ordinance. I think, therefore, I ought not to omit to state my view of the 27th section, as such statement may possibly be the means of avoiding further litigation. A very careful reading of the 27th section has convinced me that the invalid entry must be taken to be no entry at all ; and unless there was a removal from the warehouse, the Collector or proper officer could only proceed as prescribed by that section. The goods having in point of fact been landed legally under the usual warant procured by a sight entry, we cannot under the strict rule of construction applicable to penal laws say that the original landing was “by virtue of the false entry” made some days afterwards without being expressly authorized and directed to do so, by a proviso similar to that which the English acts of Parliament contain, enacting, that if the “full and perfect entry” be not made in the manner provided by the statute, the goods (though in fact legally landed in the first instance by bill of sight) “ shall be deemed to be goods landed without due entry, and shall be subject to the like forfeiture.” A careful examination of the Attorney-Ge-neralv. Hurel willshow thatthejudgment ofthe Court of Exchequer turned upon that proviso, which has no place in our Customs Ordinance. One other point was slightly alluded to by the defendant’s counsel, though I am not sure it was not intended to be much insisted on— Were the plantiffs bound to remove the case into this Court or to appeal ? And I think on principle and authority they were not. If the convicting magistrate had taken such a view of the evidence, as to have felt justified in stating that the goods were unladen by virtue of the false entry, then undoubtedly, the conviction being good upon its face, their only redress would have been by appeal under the Summary Conviction Ordinance (which seems to take away the writ of certiorari and substitute appeal) ; but being advised that the conviction was bad upon its face, it was open to (hem to treat it as a nullity, and (if undismayed by the provisions contained in the 93rd and 98th sections as to costs) to bring their action. —Governors of Bristol Poor v. Waitt, 1 Ad. & Ell., 264. Charlton v. Alway, 11 Ad. & Ell., 993, show authority for this. Rule made absolute without costs of the day.