Clugas against Penaluna.-November 21, A rule nisi having been granted for of immorality. setting aside a nonsuit in this case, Buller, J. before whom the cause was laid at the last Cornwall assizes, reported, that it was an action upon several bills of exchange, which had been given for goods bought by the defendant in Guernsey. The defendant rested his defence on the ground of its being a smuggling transaction; in proof of which he read in evidence several letlers, dated Guernsey, from the plaintiff, in which he informed the defendant of his having shipped so many ankers (a) of brandy and gin, which he had delivered to Captain Johns according to his orders, and that others were to be sent by the next trip. From the prices in the invoices accompanying the letters it appeared that the ankers in which the spirits were shipped contained about seven gallons each, and those prices tallied exactly with the sums for which the bills in question were given. Upon this evidence, Buller, J. informed the plaintiff's counsel that he should leave it to the jury to find for the defendant, conceiving that this case fell within the principle of that of Biggs against Lawrence, on which they agreed to be non-suited, reserving the question for the opinion of this court, whether the plaintiff was precluded from recovering under these circumstances. Lawrence, sergt, and Jekyll, argued for the plaintiff, and Gibbs contra. Lord Kenyon, Ch. J.-The only question is whether there was sufficient evidence to go to the jury of this being a smuggling transaction. It was said in argument, that this was not an immoral transaction; but, though the mere selling of the liquors might not be so, yet if they were sold there by a subject of this country with a view to evade the laws of this country, it savours strongly 1791. Now it is impossible, considering the whole of this case, not to see that such were the views of the plaintiff; and if so, it taints the whole transaction; and he cannot recover on the bills which were given for securing the price of these goods; for though perhaps it might not be against the laws of Guernsey, payment cannot be enforced by judicial process in any court in this country. Ashhurst, J.-Though perhaps this was a legal contract at Guernsey, which may be enforced in the courts of law there; the question here is, whether the courts of justice in this country ought to give effect to a smuggling transaction contrary to the laws of the country; I think they ought not. Buller, J.-If goods be bonâ fide sold in Guernsey, and delivered there in the fair course of trade, the seller may recover the price of them here, though they be afterwards smuggled into this country. But here the plaintiff himself was assisting in the act of smuggling by the means of packing the goods; for the spirits were delivered in ankers, which are used for the purpose of smuggling; and if he take part in the transaction, it taints the whole of it. And this distinguishes the case of Holman against Johnson from the present. Grose, J.-If a Guernsey-man collude with a person living here to defeat the laws of this country, he shall not call in aid the laws of this country. Lord Kenyon also observed, that this DURNFORD and EAST's Reports, The King against Brady, Kierman, and Rooke.-1797. The indictment stated that the defendants after the 1st day of October, 1784, with force and arms, at the liberty of Havering Alte Bower, in the county of Essex, upon Charles Wakely, being an officer of excise, duly constituted and appointed, and being on shore in the due execution of his office and duty, as such officer in seizing and securing to and for the use of the King, 500 lb. of soap, which said soap was liable to be seized by the said Charles Wakely as such officer, unlawfully and violently did make an assault, and the said Charles Wakely unlawfully and forcibly did hinder, oppose, and obstruct, &c. and other wrongs, &c. Second count. For assaulting the said Charles Wakely, and for opposing and obstructing him in the execution of his office generally. Third count. The same as the second, omitting the assault. This came on to be tried at the Old Bailey sessions, in September 1797, before the Lord Chief Baron, and Ash (a) An anker contains 64 wine quarts; but the information of foreign spirits in packages containing less than 60 gallons is prohibited. See Rules 69 and 78 of this title. West Indies. Collusive seizures. 27 Geo. 3. How commis hurst, J. when the defendants were found Two of the defendants, Kierman and Several points having been reserved at the trial for the opinion of the 12 judges, at the instance of Brady's counsel, they were this day argued (absentee Buller, J.) in the exchequer chamber. Runnington, sergt. for the defendant Brady. This indictment is framed on 24 Geo. 3. (a) The first objection is, that the offence charged in this indictment, being within the excise laws, does not come within either the letter or the spirit of an act to prevent smuggling. Wakely should have had a warrant in this case, and not having been cloathed with the authority required, he was not obstructed" in the due execution" of his duty. Lord Kenyon, Ch. J. Eyre, Ch. J. and Macdonald, Ch. B. expressed themselves very clearly of opinion, that this last point could not be supported. 66 Knowlys, for the prosecution.-Smuggling is any attempt to defraud the revenue of duties; and smugglers by land, as well as by sea, were within the contem. plation of 24 Geo. 3. (a) The words used in that act are" officers of the customs or excise, &c. in the due execution "of their duty, &c." These laws were all made in pari materiâ for the benefit of the revenue. The words" on shore," used in 24 Geo. 3. (a) are equivalent to "on land;" and so it was held by Wilson, J. in the case of the King against England, O. B. S. 1788 (only four years after the passing of the act), on this objection being taken, who said, the words " on shore" were only inserted in contradistinction to "on "board a ship," and to provide against the officers being obstructed in either situation. The above decision has often been cited, and never hitherto called in question. At the Old Bailey sessions in the December following, Grose, J. delivered the unanimous opinion of the judges: That the words "on shore," used in the 24 Geo. 3. (a) mean on land, and that an officer of excise seizing soap in the exccution of his office at an inland place, at any distance from the sea, is within the scope and protection of that act. (a) BOSANQUET and PULLER'S Reports, TITLE VI.-SEIZURES. (b) [THE regulations only of the most general nature are inserted under this title. The numerous causes which render vessels, goods, &c. liable to seizure, as well as other regulations applicable only to specific articles, will be found under the respective titles pertaining thereto. In the introduction, it is stated that "the proceedings touching prosecutions are rejected as not included in the plan laid down." It has been deemed adviseable, however, under this title to depart from this plan in a slight degree; and accordingly such of those proceedings as seem necessary for the information of merchants, and owners and masters of vessels, are now inserted.] [As to seizures in the West Indies, see TITLE 123.] [As to collusive seizures, see TITLE 15.] Rule 1. In case any goods whatever, or any vessels, boats, horses, c. 32. § 15. cattle, or carriages, shall be seized as forfeited by virtue of any act of parliament relating to the revenue of customs, (c) it shall be lawful for (a) See Rule 57 of this title. sioners of cus (b) As to collusive seizures, see TITLE 25. For ADJUDGED CASES, see at the end of this title. (c) By order of the board of customs, dated Nov. 29, 1817, in cases of seizure of goods or vessels, when the proprietors are desirous of being acquainted with the cause of such seizure, the collector, and controller, and the seizing officers, are not to withhold any proper information, on application being made to either of them by the owner, or any person duly authorized by him. c. 32. toms may restore sei the commissioners of customs in England or Scotland, on evidence 27 Geo. 3. given to their satisfaction that the forfeiture arose without any design of fraud in the proprietor of such goods, &c. to order the same to be restored to such proprietor, in such manner, and on such terms and zures. conditions, as, under the circumstances of the case, shall appear to the said commissioners of customs in England and Scotland respectively to be reasonable, and as they shall think fit to direct; and if the said proprietor shall comply with the terms and conditions pre- Terms comscribed by such commissioners, it shall not be lawful for the officer plied with. who shall seize such goods, &c. or any person whatever, on his behalf, to proceed in any manner for the condemnation thereof; but if such proprietor shall not comply with the terms and conditions prescribed Terms not by the said commissioners respectively, such officer is hereby autho- complied rized to proceed for the condemnation of such goods, &c. as if this law had not been made: provided always, that if such proprietor shall Recompense accept the terms and conditions prescribed by the said commissioners or damage. of customs respectively, such proprietor shall not have, or be entitled to any recompense or damage on account of the seizure or detention of such goods, &c. or have or maintain any action whatever for the same. with. Powers of seizures ex Rule 2. All the powers and authorities. vested in the commissioners 51 Geo. 3. of customs in England and Scotland respectively by the foregoing act c. 96. § 1. of 27 Geo. 3. c. 32. shall extend to authorize the commissioners of commissioncustoms in England and Scotland, according to their respective juris- ers of customs dictions, to order any goods whatever, or any vessels, boats, horses, to restore cattle, or carriages, that shall have been or shall be seized as forfeited tended. either by any officer of customs, or by any other person whatsoever, by virtue of any act of parliament made for the protection of trade, the benefit of commerce, or the encouraging and increasing of shipping and navigation, or in pursuance of any other act of parliament in any respect relating to the department of customs, to be restored to the proprietor, whether such goods, &c. shall have been seized as forfeited in Great Britain, or on the high seas, or in any other of His Majesty's dominions, settlements, or plantations, in case evidence shall be given Plantations. to the satisfaction of the said commissioners, according to their respective jurisdictions, that the forfeiture arose without any design of fraud in the proprietor of such goods, &c. and also, in case the seizure shall have been made by any such officer, or other person in any of His Majesty's settlements or plantations, or on the high seas, and it shall be made appear to the satisfaction of the commissioners of customs in England for the time being that such seizure was occasioned by the proprietor of any such goods, &c. having acted in conformity with any orders or directions which the governor or chief officer of any such settlement or plantation shall have deemed it expedient on any particular emergency to issue. Rule 3. In any case wherein the said commissioners of customs in Terms, § 2. England and Scotland respectively shall exercise the powers hereby vested in them, such goods, &c. shall be restored to the proprietor in such manner and on such terms and conditions as under the circumstances of the case shall appear to the said commissioners in England and Scotland respectively to be reasonable, and as they shall think fit to direct; and if the said proprietor shall comply with the terms and Proprietor conditions prescribed by such commissioners in England and Scotland complying. respectively, it shall not be lawful for the officer of customs, or any 51 Geo. 3. c. 96. Proprietor ing. other person as aforesaid, who shall have seized such goods, &c. or any other person whatever on his behalf, to proceed in any manner for the condemnation thereof; but if such proprietor shall not comply not comply with the terms and conditions, such officer or person shall be at liberty, and is hereby authorized, to proceed for the condemnation of such goods, &c. as if this law had not been made: provided always, that if such proprietor shall accept the terms and conditions prescribed by the said commissioners of customs respectively, such proprietor shall not have or be entitled to any recompense or damage on account of the seizure or detention of such goods, &c. or have or maintain any action whatever for the same. 47 Geo. 3. 19. store seizures. Rule 4. In case any goods or commodities whatsoever, or any see. c. 30. vessels, boats, horses, cattle, or carriages, shall be seized as forfeited, How commis- by virtue of any act of parliament relating to the revenue of excise, it sioners of ex- shall be lawful for the commissioners of excise in England and Scotcise may re land respectively, on evidence given to their satisfaction that the forfeiture arose without any design of fraud in the proprietor, claimant, and person having the custody, or management, for the time being, of such goods, &c. to order the same to be restored to such proprietor or claimant, in such manner and on such terms and conditions as, under the circumstances of the case, shall appear to the said commissioners respectively to be reasonable, and as they shall think fit to direct; and if such proprietor or claimant shall comply with the terms and conditions prescribed by such commissioners respectively, it shall not be lawful for such goods, &c. to be proceeded against in any manner for the condemnation thereof; but if such proprietor or claimant shall not comply with the terms and conditions prescribed by the not comply said commissioners respectively, such goods, &c. may and shall be proceeded against for the condemnation thereof as if this law had not been made: provided always, that if such proprietor or claimant shall accept the terms and conditions prescribed by the said commissioners, such proprietor or claimant shall not, nor shall any of them, have or be entitled to any recompense or damage on account of the seizure or detention of such goods, &c. Proprietor complying with terms. Proprietor ing. 54 Geo. 3. sioners of the treasury may restore sei zures. Rule 5. It shall be lawful for the commissioners of the treasury, by c. 171.1. any order made for that purpose under their hands, to direct any How commis- ships or goods whatever, seized as forfeited by virtue and in pursuance of any act relating to the revenue of customs or excise, or any act for the regulation of the trade and navigation of this kingdom, to be restored to the proprietor on the terms which shall be mentioned in any such order; and it shall also be lawful for the said commissioners to mitigate or remit any penalty or forfeiture which shall have been incurred, or any part of any such fine or penalty under any law relating to His Majesty's revenue of customs or excise, or any act relating to the trade and navigation of this kingdom. Terms to be complied with,2. 56 Geo. 3. c. 104. § 7. Rule 6. In any case wherein the said commissioners shall exercise the powers hereby vested in them, such goods shall be restored to the proprietors, or such fines, penalties, or forfeitures, or any parts thereof, remitted or mitigated, in such manner, and upon such terms as to costs or otherwise, as, under the circumstances of the case, shall appear to the said commissioners to be reasonable, and as they shall think fit to direct; and no person shall be entitled to the benefit of any such order, unless the terms therein contained shall be complied with. Rule 7. It shall be lawful for the lords commissioners of His Ma 8 Reward to jesty's treasury, or for the commissioners of customs or excise, under 56 Geo. 3. their direction, to order so much of the reward, part, or share of any c. 104. seizure, or of the value thereof, as is by this act given or granted to informers. the officers making any such seizure as they may deem proper, to be paid to the persons by whose information or through whose means and assistance such seizure may be so made; and that every such reward, or part or share of any such seizure, or of the value thereof, as shall under this or any other act be payable to any officers, non-commissioned officers, petty officers, seamen or privates of His Majesty's army, navy, or marines, or acting under the orders of the commissioners of the admiralty of Great Britain and Ireland, shall be divided and distributed in such proportions, and according to such regulations, and orders, as His Majesty shall, by his order or orders in council, or by his royal proclamation in that behalf, be pleased to direct or appoint. (a) Jurisdiction Rule 8. It shall be lawful for any two or more of His Majesty's 49 Geo. 3. justices of the peace for any county, riding, division, city, or liberty c. 65. § 1. wherein the offence shall arise, or wherein the offender shall be found, of justices for to examine into, hear, and determine all prosecutions for penalties in- fines. curred by any offence against this or any act now in force or hereafter to be made relating to His Majesty's revenue of customs; and the said justices are hereby authorized and required, upon information exhibited before them for the recovery of any such penalty, to summon the party accused, and upon his appearance or default to proceed to the examination of the matter of fact, and upon due proof thereof, either upon the voluntary confession of such party, or upon the oath of one or more credible witness or witnesses (which oath the said justices are hereby empowered to administer), to convict the offender in the said penalty, and in case of the non-payment thereof the said justices are hereby authorized and required to cause the same by warrant of distress and sale under their hands and seals to be levied upon the goods Distress and and chattels of the said offender, and in default of sufficient distress to sale. commit the said offender to any of His Majesty's gaols in the county wherein the offence shall have arisen, or wherein the offender shall have been found, there to remain for the space of six months, or until the said penalty shall be paid. $3. Rule 9. "And whereas doubts have arisen in proceedings before Summons left "justices of the peace for penalties or forfeitures incurred by offences at house, "against the laws relating to His Majesty's revenue of customs, where "such justices have issued out summons for the appearance of the "party against whom such proceeding have been instituted, which "summons hath been left at the house or usual place of residence of "such party, whether the same should be deemed a good and sufficient "summons, and as legal and effectual a notice as if the same had been "personally served upon such party; for the removal of such doubts," it is declared and enacted, that in all proceedings before any justice of the peace for any fine, penalty, or forfeiture incurred under any act of parliament now in force or hereafter to be made relating to His Majesty's revenue of customs, every such summons so left, and directed to such party by his right or assumed name, shall be (except where particular provisions are or shall be made for summoning offenders, (a) By order of the board of customs, dated June 23, 1818, informers are not to have more than the reward of one third part of the seizing officers share, without previous communication with, and special directions from, the board, |