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licensed lighterman, either in the port of London or any other port at which lightermen are required to be so licensed, or by any person not being in the employ of such lighterman at the time duly authorized to act as such, every such person shall for every such offence forfeit 201. § 127.
COURT OF CHANCERY, LINCOLN'S-INN, Nov. 9, 1853.
POWLES V. HARGREAVES.
This was an appeal from Vice-Chancellor Stuart. In the year 1847 George and Joseph Hargreaves and Thomas Platt carried on business as merchants in co-partnership together, at Liverpool, Manchester, and Shanghai in China. Their course of trade was for George Hargreaves to purchase at Manchester goods, upon condition that they were to be consigned to the firm at Liverpool, and shipped to the firm of Shanghai for sale. George Hargreaves charged il. per cent. commission for his exclusive benefit, and the firm guaranteed the sale of the goods at a commission of 71. 10s. per cent., and with the produce the firm purchased other goods to remit to England at a commission of 21. 10s. per cent.
To prevent the necessity of cash advances the firm used to draw bills upon their customers for the price of the goods, which they accepted ; and these bills were then handed to the original sellers of the goods in payment, or discounted, and the money so employed. There was a further understanding that the goods sent back from China should be in the hands of the firm as security for George Hargreaves's commission, and to the firm itself for the amount of the bills so drawn by them. In December, 1847, a joint fiat in bankruptcy was issued against the firm, and a separate fiat against George Hargreaves ; but subsequently a deed of arrangement was entered into with their creditors, by which the bankruptcies were annulled and their property vested in trustees for their creditors. William Budd Prescott, the acceptor of some of the bills of exchange, died without leaving assets to answer them, but not being judicially bankrupt or insolvent, and the bills were now in the hands of the plaintiffs, the Liverpool Banking Company, unpaid. A large quantity of goods arrived during the year 1848 at Liverpool, consigned by the China house to the English firm of Hargreaves and Co., on account of the said William Budd Prescott, in return for goods sent out to them at China on the like account, and such goods had since been sold, and the proceeds received by the trustees of the before-mentioned creditors' arrangement deed. Under these circumstances the present suit was instituted by the registered public officer of the Liverpool Banking Company, to have the produce of such goods applied, in the first place, in payment of the bills of William Budd Prescott then remaining in the hands of the banking company. The Vice-Chancellor, conceiving the case to be entirely governed by that of Ex parte Waring” (19 Ves.), decided by Lord Eldon, decreed in favour of the equity claimed by the bill. The appeal of the defendants being from the whole decree, the case of the plaintiff's was first opened.
Mr. J. Russell, Mr. Daniel, and Mr. H. Clarke appeared for the plaintiffs ; Mr. Wigram, Mr. Rolt, and Mr. Smythe for the appellants.
Their LORDSHIPS, without calling for a reply, gave judgment, and said, that the Court had felt no difficulty in coming to the conclusion that the decision of the Court below was substantially correct and in conformity with the principle laid down in Waring's case. An objection had been raised that the present case ought not to be determined by Lord Eldon's judgment in that case, inasmuch as the principal ingredient—namely, a double insolvency-was wanting. It was quite clear, however, that Prescott, although not adjudicated an insolvent, was not able to pay his debts, and therefore the same equity must arise as if he had been declared an insolvent. As to the Hargreaves, the
creditors' composition deed expressly defined that the property coming to the trustees under it was to be dealt with by them in the same way as if the bankruptcy had not been annulled. What would have been the rights of the plaintiffs, supposing that the bankruptcy had not been annulled, and the property in question had been sold by the assignees instead of by the trustees ? Without doubt they would have been entitled to present a petition in bankruptcy, as creditors, to have the bankrupt's estate duly administered ; and in no other way could such estate be duly administered than by the payment of these bills. It would be a disgrace to the administration of justice if there should be any doubt of such being the right course to pursue. The plaintiffs were therefore clearly entitled to have the proceeds of the sale of the goods applied in payment of the bills, so far as they would extend, and to prove against the estate of the Hargreaves for the deficiency. Appeal dismissed.
(Sittings at Nisi Prius, before Lord CAMPBELL and Special Jurics.)
SMITH V. CHRISTIAN.
Mr. Serjeant Wilkins and Mr. Lush appeared for the plaintiff ; and Mr. M. Chambers, Q.C., and Mr. Petersdorff for the defendant.
This action was brought to recover damages for the breach of a contract into which the defendant had entered with the plaintiff for the delivery of 33 tons of chicory at the price of 101. 7s. 6d. per ton. With this cause of action the plaintiff, under the new Common Law Procedure Act, joined a count for blanderous words spoken of the plaintiff in the way of his business. It appeared that the plaintiff, who carried on business on Fish-street-hill
, purchased the chicory in question of the defendant, a coffee and chicory merchant in Lime-street. From some mistake or another the chicory was not delivered at the time specified, and in consequence the money was not paid by the plaintiff. This led to an application being made to the plaintiff for the money by the defendant, who was not aware that the chicory had not been delivered. The interview took plack in the street as the plaintiff was getting into his gig, when, without spending any time to enter into an explanation, the defendant called the plaintiff a swindler," and the latter retorted that the defendant
“ liar.” In consequence of the non-delivery of the chicory, the plaintiff had been obliged to purchase other chicory at York, for which he had given 11l. per ton, in addition to paying for the carriage.
Lord CAMPBELL, in summing up the evidence, said he thought the damages for the breach of the contract ought to be very small, because there was no precise evidence as to the damage which the plaintiff had sustained ; but, as to the other part of the case, his lordship thought it was no trifling matter to call a merchant of London a swindler in front of his own place of business. The jury would say what damages the plaintiff was entitled to recover for that act.
The jury retired to consider their verdict, and, upon their return into court, found for the plaintiff with 40s. damages on the breach of contract, and with 501. damages for the slander.
HOLIDAYS. No day shall be kept as a public holiday by the customs except every Christmas Day and Good Friday, and such other days as may be appointed to be kept as such by Her Majesty's proclamation, and, so far as regards Scotland, such days as shall be appointed to be so kept by authority of the General Assembly, and also such days as shall have been or may be appointed for the celebration of the birthdays of Her Majesty, and such days shall be kept as public holidays by the officers and servants of the dock companies in the United Kingdom. 16 & 17 Vict. c. 107, § 6. [August 20, 1853.]
Among the modern institutions for the advantage of commerce, one of the most useful is that of Consuls, or persons residing in the large trading cities, and especially the seaports, of foreign countries, with a commission to watch over the rights and privileges of their nation and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission; and, as the state which allows of this commerce must naturally favour it-for the same reason, also, it must admit the Consul. But, there being no absolute and perfect'obligation to this, the nation that wishes to have a Consul, must procure this right by the commercial treaty itself.
The Consul being charged with the affairs of his Sovereign, and receiving his orders, continues his subjoct, and accountable to him for his actions.-Chitty's Vattel, Law of Nations.
COMPLAINTS AND DISPUTES. As to Rate of Duty.—If any dispute arise as to the proper rate of duty payable in respect of any goods imported into the United Kingdom, and admissible for home consumption, the importer or consignee, or his agent, shall deposit in the hands of the collector of customs at the port of importation the amount of duty demanded by such collector ; and such deposit shall be deemed to be the proper duty payable in respect of such goods, unless an action or suit be brought or commenced by the importer of such goods within three months from the time of making such deposit in one of Her Majesty's courts at law, for the purpose of ascertaining whether any and what amount of duty is due and payable upon such goods; and, upon payment of such deposit, and passing a proper entry for such goods, by the importer, &c., such collector shall thereupon cause the said goods to be delivered in virtue of such entry. 16 & 17 Vict. c. 107, § 29. (Aug. 20, 1853.]
LONDON. How Commissioners may dispose of Disputes.- If in the port of London any dispute arise between any masters or owners of ships, merchants, importers, consignees, shippers, or exporters of goods, or their agents, or licensed agents, and any officer of customs, with reference to the seizure or detention of any ship or goods, or to any apparently accidental omission, inadvertence, or noncompliance with the laws or regulations relating to the customs, or touching the withdrawal of agents licences, it shall be lawful for the commissioners to dispose of or determine such dispute in such manner as they may deem just. § 31.
Penalties.- If upon consideration of the facts and circumstances out of which such dispute shall have arisen the Commissioners of Customs shall be of opinion that any penalty or forfeiture has been incurred by any such master, or person, the commissioners may, in case they shall be of opinion that the penalty ought to be remitted, remit and forego the same accordingly, or, in case they shall be of opinion that a mitigated penalty should be imposed and enforced, mitigate any such penalty or forfeiture to such amount as they may deem a sufficient satisfaction for the breach of law or regulation complained of. § 32.
Appeal to open Court.—In case any such person shall feel himself aggrieved by the determination of the Commissioners of Customs in any of the cases aforesaid, or have any ground of complaint against any officer of customs in respect of anything done or omitted to be done
by such officer in or about the execution of his duty, the party so feeling himself aggrieved shall, upon an application in writing to the Commissioners of Customs, which application shall state the substance of his complaint, or the reasons of his dissatisfaction with such determination, be entitled to have the facts and circumstances of such complaint or determination inquired into by one of the said commissioners in the manner following: $ 33.
Public Inquiry: -Upon receipt of such application the Commissioners of Customs shall depute one of such commissioners to inquire into the subject matter of such application, for which purpose a suitable apartment* shall be provided, to which the parties complaining and the parties complained against, and their agents and witnesses, and all other persons interested or desirous of attending, shall have free access ; and the
; commissioner so deputed shall receive the statement of the complainant or his agent or attorney, and hear any reasons which he or they may advance in support of his complaint, and the commissioner shall take or cause to be taken evidence on oath which the complainant may offer and adduce in support of his complaint, and write down or cause to be written down and report the substance of such evidence in a narrative form, and his opinion thereon and on the arguments, if any, adduced on the hearing of the case, for the information of the commissioners, and in like manner the commissioner shall take and write down or cause to be taken down and written, and report, for the information of the Commissioners of Customs, any evidence which may be offered in support of such determination of the commissioners, or in case of a complaint against an officer such exculpatory evidence as the officer complained against may offer or adduce; and the course of proceeding with respect to the taking of such evidence and the conduct of such inquiry shall be in as close conformity as the nature of such inquiry will admit with the practice adopted before justices on inquiries had before such justices. § 34.
How Commissioners to Prosecute or Decide-How Award may be Enforced.—The Commissioners of Customs, upon the evidence so reported to them, shall either determine to prosecute, if they deem it a proper case for prosecution, or decide the case upon such evidence, and make their order thereon accordingly, which order shall be communicated by a Commissioner in open Court either on the same day or a future day to be appointed at the hearing for that purpose ; and every order of the Commissioners made upon consideration of the facts, so reported by the Commissioner by whom such inquiry shall have been holden, shall, in case any penalty or mitigated penalty or forfeiture be adjudged by such order to be paid or enforced, be of equal force, validity, and effect as any conviction for penalties which any justice or justices is or are now empowered by law to make, and upon the production of any such order under the hands of any two or more of the Commissioners of Customs to any justice of the peace it shall be lawful for such justice to enforce such order, in the same manner and by the like authority as such justice is now empowered to enforce orders unless the party against whom such order shall have been made, shall, within one week after the same shall have been communicated as aforesaid, give notice in writing to the Commissioners of Customs or to their solicitor that he refuses to abide by such order, in which case the Commissioners of Customs may direct such proceedings eon as they may see fit, or the party against whom such order shall have been made shall have the same remedy by action in any court having jurisdiction, including the “ Court of
• See Open COURT, at end of this Title.
Requests of the City of London and the Liberties thereof,” as if no such hearing or order had been made : provided always, that if any such master, owner, importer, shipper, exporter, or agent (not wishing to resort to such appeal as hereinbefore provided) be desirous of stating his case personally to one of the Commissioners of Customs, he shall be at liberty to do so on attending at the Custom House during the sitting of the board on applying for that purpose.
Power to keep Order. - The Commissioner of Customs so deputed to inquire, shall have and exercise, while engaged in the conduct of such inquiry, and to as full an extent as the same is now exercised by any justice in sessions, all necessary powers and authority to enforce order and propriety of conduct. $ 36.
If at any of the outports any dispute shall arise between any master or owner of ships, merchants, importers, consignees, shippers, or exporters of goods, or their agents, and any officer of customs, with reference to the class of cases hereinbefore enumerated as arising or occurring in the port of London, the like inquiry shall be holden, the like course of proceeding adopted, the like mode of taking evidence pursued, the like accommodation for the parties concerned provided, the like authorities for maintaining order given, and, as nearly as may be, the like matters in every respect done, as hereinbefore provided for inquiry into and conduct of similar proceedings in the port of London, save and except that the duty hereinbefore prescribed to be performed by one of the Commissioners of Customs deputed for that purpose shall be performed at such outports by the collector or comptroller or other officer of customs deputed for that purpose. § 37.
Inquiries by Commissioners, Surveyors General, and other OfficersOath.-In any of the foregoing cases, or whenever it shall be necessary for the Commissioners of Customs or their officers to institute any inquiry to ascertain the truth or facts with respect to any complaint or matter relating to any business under their management or control or incident thereto, or the conduct of officers or persons employed therein, such inquiries shall and may be made or conducted by the commissioners for the time being, or any one or more of them, or by any surveyor general, inspector general, collector, or comptroller, or other officer of customs, or by such persons as the Commissioners of Customs shall direct and appoint for that purpose ; and when upon any such inquiry proof on oath shall be required by the person so conducting the same, such person may administer such oath to any person attending before him as aforesaid ; and if any person so examined as a witness before such person shall be convicted of giving false evidence on his examination on oath before the person conducting such inquiry, every such person so convicted shall be deemed guilty of perjury and shall be liable to the pains and penalties thereof. $ 38.
Witnesses.- Upon any such inquiry or examination it shall be lawful for the Commissioners of Customs, or any one or more of them, or for any such surveyor general, inspector general, collector, comptroller, or other officer of customs, or person so authorized or directed by the Commissioners of Customs to conduct such inquiry or examination, to summon any person required as a witness to appear before the commissioners, inspector general, collector, comptroller, surveyor general,