assisting in the running and unshipping the goods. But there is this difference between them; he who was present helping the goods on shore is party in the illicit act itself, and therefore is chargeable with the whole; but he who receives any part of the goods after they are put on shore is not party to the original act, but is only culpable for what he receives, and consequently can for feit only the treble value of the goods that came to his hands.

And I believe nobody would think it so consonant to justice, that the receiver of a pound of tea or coffee, that had not paid duties, should pay the treble value of 10007, that was run at the same time which he knew nothing of. Our law is very cautious in extending punishment beyond its due proportion; and therefore in trespass, Mayhem, præmunire, &c. there are no accessaries, for accessaries before by counsel or command are in the same degree as principals; but the accessary after, by receiving the offender, cannot by law be under any penalty, unless the statutes which induce the penalty expressly extend to receivers and comforters, as some do.Hayle's Hist. P. C. 613.

It is agreed that if a person be hired to carry goods which have not paid duties, knowing the duties unpaid, he is a person to whose hands the goods knowingly came, and consequently liable to the penalty of the treble value, otherwise the act might be easily eluded.

But there is a difference where a person is hired to help the goods on shore, who, being present, and aiding and assisting in the unshipping of the goods, is party in the wrong, and liable as every principal actor to answer the whole damage. And that was the case of Attorney General and Palmer, wherein it was said, that all the persons hired went together with one intent to carry off the goods. If persons are hired to pull down a house, they are all trespassers. But if a porter be hired to carry a parcel of tea after the importation, which he knows was run, he is a person to whose hands that parcel came within the intent of the act, and will be liable

Timson and another against Special action on the case, by Timson and Jones, merchants, against Nodin, a land waiter in the port of London. The declaration stated, that all brandies imported into London ought to be entered at the custom house by what is called a prime entry, containing less than the true quantity imported; and on pay

to the treble value of that parcel; but I believe nobody will say he is answerble for the treble value of the whole cargo.

So likewise if a keeper of a public house receives the whole parcel, which any of his guests, whom he knows to be a smuggler, brings to him, and takes it into his possession and conceals it for him, he is a person to whose hands those goods came, and will be chargeable with the penalty of the treble value of what he so concealed, but not of the goods carried by other persons to other places. So was the case of Attorney General and Sweeting, and many subsequent determinations.

So likewise if a person buy any quantity of goods which he knows were run and the customs not paid, be will be chargeable with the treble value of the goods so bought, for he is a person to whose hands the goods came; for though it was under the pretence of a contract, yet since he knew the customs unpaid, it was an illicit contract, and be becomes particeps criminis by receiving those goods; and the contract or purchase will no more exempt him than if he had bought goods of a pirate or felon, which alters not the property of them.

However as this special verdict is found, I think the whole 100 lb. of tea came to the defendant's possession, for it is said that he took care of the whole, that by his direction it was put under the bed, and he lay down on the bed; so that apparently he had at one time the whole under his custody and care, and used endeavours to conceal it, knowing the whole to be uncustomed goods. What more does an inn-keeper or alehouse-keeper do, who takes the goods of a smuggler to lay up and conceal?

Judgement was given by the whole court, that the defendant should be charged with the treble value of the whole 100 lb. of tea, which amounted to 721, CоMYNS'S Reports.

See also the case of " Shiells and Thorne against Blackburne," respecting an undue entry of leather, at the end of TITLE 209.

Nodin.-Hilary Term, 1775.

ment of the duties thereon, the importer obtains a warrant from the collector of customs for landing the same; which warrant being delivered to a landwaiter, he is to make out an order to the officer on board, to deliver the brandies se entered to the importer thereof; and when the same are landed and

gauged, then the importer is to make a post entry, containing the full quantity over and above what is contained in the said prime entry. It then states that the plaintiffs had imported from Dunkirk on the 18th of May, 1773, 18 casks or pancheons of brandy, the exact contents of which being unknown to them, they made a prime entry of 1620 gallons, being after the rate of 90 gallons the cask, which was the fair and usual quantity for such prime entry; and obtained a warrant from the collector to land the said 18 casks, which they delivered to the defendant, and requested his order to the officer on board to deliver the said casks to the plaintiffs, in order to have the same gauged, and the post entry made, and the said brandy cleared; but the defendant neglected and refused so to do to the damage of the plaintiffs, &c.

On not guilty pleaded and issue joined, it came on to be tried before Nares, justice, at the sittings in London, on the 9th of July, 1774; the jury found a verdict for the plaintiffs, subject to an order of the court, which recited that the practice stated in the declaration was sufficiently proved, and that according to such usage it was part of the defendant's duty to deliver such order; but as one of the jurors doubted as to the legality of such usage, it was therefore ordered by consent, that if, on moving for a new trial, the court should be of

opinion against the legality of such usage, or that the action is not maintainable, the verdict shall be void, and a nonsuit entered on the record.

Accordingly, Davy moved last term for a new trial, on a suggestion that this practice opened the door to great fraud and smuggling. And now Glyn showed for cause, that it was a practice for the benefit of trade; for if a full entry was to be made at first by guess without gauging, which cannot be performed on board, and more than the just duty was paid, it would be attended (according to the course of the custom house) with great circuity, delay, and expence, to get the overplus returned; whereas by entering a less quantity than the truth, and afterwards ascertaining the true quantity before it goes out of the custody of the officers, the trader is eased, and the revenue is sufficiently secured. And this practice is in effect authorized by the legislature; for in the book of fees, (a) established A. D. 1662, by the house of commons, and signed by the speaker (see Com. Journ. the 17th May, 1662), under the authority of § 24. of the rules and orders annexed to the stat. 12 Cha. 2. c. 4. notice is taken of prime and post entries, which shows it to have been an ancient legal usage. And of that opinion was De Grey, chief justice, and the whole court, and ordered postea to the plaintiff.

The defendants (who were all known to be custom house officers) on the 24th of August, 1773, eutered the plaintiff's house in the day-time, in the company of the plaintiff, under pretence of an information against run goods, and demanded of the plaintiff and his wife their keys, which they refused to deliver, and desired to see their information; which Shearman refused to produce, and threatened if they would not give up the keys he would break open the locks; and accordingly got a constable, to whom he produced his writ of assistance, and broke open the locks of the chambers, closets, and drawers; and took away

20 pints of geneva in one case bottle, and 10 pints with rue steeped therein in another case bottle, which was brought that morning at five o'clock from on board the plaintiff's vessel (which was just arrived from Flushing where she had sold a cargo of fish), and was part of the ship's stores. The defendants gave in evidence a copy of the record of condemnation of the same geneva in the court of exchequer, Michaelmas term, 1773; and that the said geneva, when seized, was immediately lodged in the King's storehouse.

Query. Whether the plaintiff is enti tled to recover.

This case was argued last Michaelmas term, before Gould and Blackstone, justices, by Glyn for the plaintiff, and Walker for the defendants.

The questions made were principally two. 1. Whether the original entry of the defendants without a constable was tortious. And, 2. Whether the condemnation in the exchequer was conclusive evi

dence to the jury; Glyn contending that it only was conclusive in respect to the forfeiture of the goods, but that it did not protect the officer from answering for his misbehaviour in an action of trespass. No authorities were cited on either side; but it seemed to be agreed to be a new

case.

Gould, justice, thought the whole was to be considered as one transaction; that there was no misbehaviour on the part of the officers; that the case did not import an entry against the will of the plaintiff, but rather the contrary. And he inclined to think the condemnation was conclusive evidence; but desired to have another argument.

Blackstone, justice, agreed that there was no special misbehaviour on the part of the officers, provided the seizure was legal, from the goods being uncustomed or prohibited; a fact which the jury have found in the negative. But he doubted how far the condemnation in the exchequer was conclusive as to other collateral matters distinct from the property vested in the crown; and wished to have the case argued again, that this matter might be thoroughly considered.

It was accordingly argued again in this term, but no new lights were thrown upon the question by any thing alleged at the bar.

And it was now held by the whole court (De Grey, chief justice, Gould, Blackstone, and Nares, justices), that there was no misbehaviour on the part of the defendants, and that the condemnation in the exchequer was conclusive evidence to the jury in an action of trespass for seizing the goods condemned.

Blackstone, justice, who had conceived a doubt upon the former argument, delivered his reasons at large for changing the inclination of his first opinion.

The only possible ground that the plaintiff can rely on in the present case, which is unaccompanied with misbehaviour or any unwarrantable violence, is, that the goods were not in truth liable to be seized by the laws of customs; although, by the plaintiff's default, they have been condemned in the exchequer. But I take this condemnation to be conclusive evidence to all the world, that the goods were liable to be seized, and that therefore this action will not lie.

1. Because of the implicit credit which the law gives to any judgment in

a court of record, having competent jurisdiction of the subject matter. The jurisdiction in this case of the court of exchequer is not only competent, but sole and exclusive. And though it be said, that no notice is given to the owner in person, and that therefore he is not bound by the condemnation, not being a party to the suit; yet the seizure itself is notice to the owner, who is presumed to know whatever becomes of his own goods. He knew they were seized by a revenue officer. He knew they were carried to the King's warehouse. He knew, or might have known that by the course of law, the validity of that seizure would come on to be examined in the court of exchequer, and could be examined no where else. He had notice by the two proclamations according to the course of that court. He had notice by the writ of appraisement, which must be publicly executed on the spot where the goods were detained. And having neglected this opportunity of putting in his claim, and trying the point of forfeiture, it was his own laches, and he shall for ever be concluded by it, not only with respect to the goods themselves, but every other collateral remedy for taking them. For it would be nugatory, to debar him from recovering directly the identical goods that are condemned, if he is allowed to recover obliquely damages equivalent to their value.

2. Because the property of the goods being changed and irrevocably vested in the crown by the judgment of condemnation (as is clear beyond any dispute, and conceded on the part of the plaintiff), it follows as a necessary consequence, that neither trespass or trover can be maintained for taking them in an orderly manner. For the condemnation has a retrospect and relation backwards to the time of the seizure. The spiritous liquors that were seized were therefore, at the time of the seizure, the goods and chattels of His Majesty, and not of the plaintiff, as in his declaration he has (necessarily) declared them to be, since neither trespass nor trover will lie for taking of goods, unless, at the time of the taking, the property was in the plaintiff.

Upon the whole, by the opinion of all the judges, judgment for the defendants. BLACKSTONE'S Reports, vol. ii.