Their Lordships, therefore, will advise his Majesty to reverse the decree of the Prerogative Court, and to direct probate of the Will of 1820, to be granted to the personal representatives of the residuary legateę. 1836. WELCH V. PHILLIPS. AN APPEAL FROM GUERNSEY. GEFFREY MARTYN, EBENEZER FER- Appellants. Respondents.* 11 February 1837. The Island of Herm being pendencies of pose of local THIS was an Appeal from a sentence of the Royal Court of Judgments and Records, in the Island of Guernsey, pronounced on the 17th of February 1835, affirming a previous judgment of the Royal one of the deCourt (Cour Ordinaire) of the 29th of November Guernsey, is, 1834, in favour of the Respondents, in a suit insti- for the purtuted by them as receivers of the impost on spirits taxation,part and parcel levied in the island, against the Appellants, to thereof. recover the sum of 32l. 15s. alleged to be chargeable for duty on 655 gallons of spirits imported by them into the island of Herm from Guernsey. The islands of Guernsey, Sark, Herm and * Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and the Chief Judge of the Court of Bankruptcy. By several Orders in successive Council, the Guernsey were em powered to raise a duty of one shil ling per gallon on all spirituous liquors retailed and consumed in the island, the produce of which was to be applied, in the construction and repair of coast defences, harbours, roads, &c. By an Ordinance of the Royal Court the States prohibited the importation of spirits into the islands of Sark, Herm and Jethou. Held, that such prohibition was within the meaning and authority of the Orders in Council (though not originally enforced) and that the object to which the tax was to be applied, formed no ground of exemption to the inhabitants of Herm. 1837. MARTYN V. Jethou, form part of the Channel Islands, and, together with Alderney, are, as to jurisdiction, M'CULLOCK. dependencies of the bailiwick of Guernsey. Sark is situate about seven miles from the latter island, and has a constitution, consisting of a representative assembly, and courts of justice, of its own. Herm and Jethou lie about three miles from Guernsey; neither of them have any constitution or courts of their own, but are wholly dependent upon, and subject to Guernsey. Till within a recent period the island of Herm was without inhabitants, and was used as a warren by the governor of Guernsey. Under the authority of an Order in Council of 19 May 1737, it was let on lease for 61 years, and, having passed through several hands, was, at the period of the institution of this suit in the Royal Court, vested in the Appellant Jonathan Duncan, who, in copartnership with the other Appellants, carried on a trade in granite, under the title of the Herm Granite Company. By authority of an Order in Council of 23 July 1814, there was levied in the island of Guernsey, a duty of one shilling per gallon on all spirituous liquors retailed and consumed on the island, the produce of which is applied to the construction and repair of coast defences, harbours, roads, the improvement of the town of St. Peter's Port, the promotion of public education, and other general purposes. This duty is levied by the States of the island, consisting of the bailiff and twelve jurats of the Royal Court, the attorney-general, the parochial clergy, and the constables of the ten parishes into which the island is subdivided. The impost originated under the following circumstances: In former times the repairing of coa 1837. MARTYN V. defences in the island of Guernsey, used to be executed by corvées, that is, by all the male inhabitants, of the parishes lying contiguous to such M'CULLOCK, coast; being obliged to contribute a portion of their time and labour to perform the work required; but latterly, though previous to 1814, the same object was effected by means of a property-tax raised upon the inhabitants of those parishes which were contiguous to the coast. A considerable portion of the western coast having been overflowed by the sea, in the years 1811, 1812, and 1813, and it being found that at least 10,000l. would be required to repair the damages, and place the coast in an efficient state of defence, the States and representative body of the whole island, resolved, on the 16th July 1813, to take upon themselves the execution and expense of the works required, and accordingly presented an application to his Royal Highness the Prince Regent in Council, for an order authorizing them, to levy a duty of one shilling per gallon on all spirituous liquors retailed and consumed in the island, the produce thereof to be appropriated to the liquidation of the expense of the works voted for the security of the island, and to increase the revenue of the States. The application being favourably received, an Order in Council was made, on the 23d July 1814, sanctioning the levying of such duty for the term of five years, and authorizing the Royal Court to pass such ordinance as might be found necessary for the levying of the duty. In pursuance of this authority, the Royal Court passed an ordinance on the 3d September 1814, which was subsequently repealed, and a further one passed on the 18th of November 1816. By both these ordinances the islands of Sark, 1837. MARTYN Herm and Jethou, were exempted from the payment of this duty, which, by an Order in Council M'CULLOCK. of the 19th June 1819, was renewed for a further term of ten years. v. On the 17th of January 1820, the Royal Court of Guernsey issued another ordinance, regulating the manner of levying the impost, by the 4th article of which, a provision similar to that already in existence, was made for the exportation of spirits, duty free, to the islands of Sark, Herm, and Jethou, and by the 6th article a penalty of 700 livres Tournois, or 50l. sterling, was annexed to the commission of any fraud, by the seller or exporter, in not landing the spirits so exported, at Sark, Herm or Jethou. In 1823 the inhabitants of Sark being in want of money to construct a harbour for the protection of their boats against the sea, entered into an agreement with the States of Guernsey, by which the former consented to pay duty on the spirits they should import during the unexpired six years of the term granted in November 1816; and the latter obliged themselves in return to advance such a sum of money as might, by a committee appointed by both islands, be deemed equivalent to the increased revenue which the States of Guernsey would derive from the impost being paid by the inhabitants of Sark. In recommending the States to adopt the measure as one of acknowledged utility, the President, in the Billet d'Etat, or notice of convocation, observed, that it would be necessary "to take precautions to prevent abuses, particularly with respect to the islands of Herm and Jethou, which enjoy, perhaps improperly, exemption from the impost. These islands (continued he) do not form a separate 1837. MARTYN v. community like Sark; they are but immediate dependencies of this island; and in every case this exemption must not serve as a pretext for greater M'CULLOCK. abuses. I would therefore recommend the States, if they are of opinion to adopt the measure, to name the Court as their committee, so that it may pass such regulations as may be found necessary." The States having deliberated, decided that they were of opinion, to negotiate with the island of Sark, on the subject of its offer to pay the impost on spirituous liquors imported from Guernsey, during the remainder of the term of ten years, granted by Order from his Majesty in Council dated 19th June 1819, and to receive the amount at two or three epochs, not very distant, to be employed in the construction of a harbour; and that without prejudice to the right of exemption from the said impost, which Sark enjoys, which island should again re-enter into all its rights at the expiration of the said term, as if the measure had never taken place, and without its serving as a precedent for the future. By an Order in Council of his Majesty King George the Fourth, dated the 30th of September 1825, a further extension of the term of the impost was granted for 15 years, from the 1st of September 1829. On the 21st of January 1833, the Royal Court of Guernsey having been specially assembled, for the purpose of consolidating all the existing ordinances relative to the impost, after repealing all those previously passed, declared the following, among others, to be alone in force for the future: "It is forbidden to the master of every vessel or boat arriving from foreign countries, and to every proprietor or consignee of spirituous liquors on board |