Exch. of Pleas, tions with the witness Moylan. The case of the Attorney 1837. ATTORNEY- v. CATT. General v. Tomsett (a) is expressly in point. That case decided that the taking on board contraband goods at sea was an illegal unshipment. (He was then stopped by the Court.) Jervis, for the defendant.-The question is, whether the terms of the statute are satisfied by an unshipping at sea into a vessel in which they are intended to be run into the United Kingdom. The clause in question, 3 & 4 Will. 4, c. 53, s. 44, enacts, that every person who shall, either in the United Kingdom or in the Isle of Man, assist or be otherwise concerned in the unshipping of any goods which are prohibited to be imported, or the duties for which have not been paid or secured, or who shall knowingly harbour, &c., any goods which have been illegally unshipped without payment of duties, or any goods prohibited to be imported, &c., shall be liable to the penalties therein mentioned. Now, the unshipping on the high seas cannot be the unshipping contemplated by the act of Parliament, because, until the goods arrive at their port of discharge, no duties are payable on them; and the act is directed against an unshipment without payment of duties, the duties having attached, or an unshipment of goods prohibited sub modo, because packed in illegal packages, but which, if in legal packages, would be then liable to duty. But the counts which describe the goods as prohibited goods go further, and state that they had been imported. Now the going into Neath merely for the purpose of better securing the contraband cargo-a purpose unconnected with the landing of the goods-was not an importation. Lord Hale says (b): "The duty is not due only by the coming of a ship into an English port; for so he might do for safeguard, or to stay for a wind, and without (a) 2 C. M. & R. 170. Customs, s. 20; Harg. Law Tr. 216. 1837. ATTORNEY- v. CATT. any intention of merchandize; and the customs are due Erch. of Pleas, only from such goods as are imported for merchandize." The jury could never have doubted that there was no intention to import the goods into Neath. The case of the Attorney-General v. Tomsett is distinguishable. The argument there was merely that there was a "being concerned in the unshipping" within the United Kingdom, and the point as to the description of the goods, whether they were "liable to the duties" when unshipped, was not taken. The seventh count of the present information differs also from the first count of the information in that case in alleging that the goods had been imported. [Alderson, B.—What objection is there to the sixth count?] It contemplates an unshipping in the United Kingdom, the duty having attached. It would be perfectly legal to unship the goods off the coast of Holland; the duties could not be there paid or secured. The count clearly refers to a harbouring of the goods after they had been illegally run. The Solicitor-General in reply.-The sixth count meets the case fully. It is for harbouring, in the United Kingdom, tobacco liable to the payment of duties which had been illegally unshipped, the duties not having been first paid or secured. [Lord Abinger, C. B.-The question is, does not that mean first paid or secured before the unshipping?] No-before the harbouring, the offence charged. Again, the construction put by the other side on the word "imported," in the seventh and eighth counts, is absurd. It cannot mean imported for consumption, under circumstances which rendered duty payable, because the goods are alleged to be prohibited from importation. [Alderson, B.—The counts are perfectly good without the averment that the goods had been imported; the statute is only directed against unshipping or harbouring goods prohibited to be imported.] Cur. adv. vult. Exch. of Pleas, 1837. ATTORNEY GENERAL V. CATT. The judgment of the court was now delivered by Lord ABINGER, C. B.-The third count of this information charges the defendant with penalties of treble the value of a quantity of foreign tobacco, which it is alleged he was, at Ratcliffe, in the county of Middlesex, concerned in unshipping, the same being goods prohibited to be imported into the United Kingdom. The facts of the case are these:-The defendant was master of a vessel called the Hope, belonging to the port of Rye. At Rye, and also in London, he held consultations with a witness of the name of Moylan, with whom he agreed, in consideration of receiving 550l., part of which, 50%., was paid in hand, to take his vessel to Hull, to correspond from thence with a person of the name of Minter, at Flushing, then to take his vessel near to the coast of Holland, and to receive from a vessel which Minter was to dispatch for that purpose, a number of bales of tobacco; then to proceed to Neath, in Glamorganshire, to receive on board a cargo of culm, which was to be laid over the tobacco, for the purpose of concealing it, and then to take the cargo of tobacco, in that vessel, to Youghal, in Ireland. This agreement was executed: the defendant went with his vessel to Hull; he wrote to Minter; he then sailed in ballast, ostensibly for Neath. On the high seas, off the coast of Holland, he received on board the Hope, from a Dutch vessel, 330 bales of tobacco, 60 lb. in each bale, and concealed them under the ballast. He went first to Yarmouth roads, in the Isle of Wight, where the vessel was overhauled by revenue officers, who, however, did not discover the tobacco: from thence he sailed in the vessel to the port of Neath, lay there a considerable time, took in a cargo of culm, placed that over the tobacco, sailed to Youghal, in Ireland, and there he landed the tobacco. It has been objected by the counsel for the defendant, 1837. ATTORNEY- v. Сатт. that the only act of unshipping of this tobacco was in Ire- Exch. of Pleas, land, where, of consequence, the information ought to be tried; to which it was answered, that the transhipping it from the Dutch vessel to the Hope, on the high seas, with intent to take it to Neath, and afterwards to Youghal in Ireland, where it was to be landed, was an unshipping within the meaning of the statute of 6 Geo. 4, cap. 108, s. 45; and that the defendant was concerned in England in that unshipping. It is by that section enacted, "that every person who shall, either in the United Kingdom or the Isle of Man, assist or be otherwise concerned in the unshipping of any goods which are prohibited, or the duties for which have not been paid or secured, shall forfeit either the treble value thereof, or the penalty of 100%., at the election of the commissioners of his Majesty's Customs:" and it is averred in the information, that the commissioners of the customs have elected to proceed for the treble value. The tobacco in question was prohibited to be imported, being packed in bales of 60 lbs. each, whereas the statute 6 Geo. 4, c. 107, s. 52, in the table, prohibits its importation unless in hogsheads, casks, chests, or cases, weighing 450 lbs.; if from the East Indies, the weight required is 100 lbs. The question for the consideration of the Court is, whether the defendant, having, at Rye and in London, arranged this plan, which he afterwards executed to the very letter, has or has not, in England, been concerned in unshipping goods which were prohibited, which were intended to be, and which were, brought by him into the United Kingdom; first into Neath, in Glamorganshire, and afterwards into the port of Youghal, in Ireland, where they were actually landed by the defendant himself. The act of parliament has not required that the unshipping should be within the United Kingdom. The offence Exch. of Pleas, consists in being, within the United Kingdom, concerned 1837. in the unshipping. ATTORNEY- V. CATT. The case of The Attorney-General v. Tomsett, which was decided in this court in Easter Term, 1835, involved this very question. In that case, the defendant, at Dover, hired a Dover hoy, to meet, in her voyage to London, a boat from the French coast, with a cargo of foreign silks, which she was to receive on board the hoy, and convey to London, concealed under the ballast. The Dover hoy did meet that boat accordingly, about two miles from the shore, within limits which commissioners appointed under the statute 13 & 14 Car. 2, cap. 11, had assigned to the port of Dover: she received the silks from that vessel, and brought them into the port of London, where they were discovered and seized. The Court decided, that the defendant, having made this arrangement at Dover, was concerned in the unshipping, and that this unshipping from the French boat to the hoy, with a view to their being laid on land, was an illegal unshipment within the meaning of this act of Parliament, without any reference to the limits of the port of Dover. And the Court sees no reason to differ from that judgment. The principle in this case is the same; whether the unshipping be from a small to a large vessel, or from a large to a small vessel, or from a vessel into the sea, which, in the case of tubs of liquor, is of frequent occurrence, cannot make any difference. Whether the unshipping be within two miles of the English coast, or whether it be within two miles of the coast of Holland, cannot make any difference. In either case, the act is on the high seas, and without the limits of any English county. We are therefore of opinion, that the unshipping in this case was an unshipping within the meaning of the act of parliament, and this rule must be discharged. Rule discharged. |