was, as the only difference he should allow for would be her swing to the tide. He further stated, on cross-examination, that it was the practice at the Custom House to allow goods taken from ships at anchor off Cape Sierra Leone, and without the jurisdiction, to be imported on payment of the duties, and to allow any place out of the jurisdiction to be inserted in such entry as the place they came from, although the Custom officers well knew the goods were transhipped outside the Cape. Johnson, the lighthouse-keeper, also deposed that the Belus was at anchor, to the best of his knowledge, one mile from Cape Sierra Leone; but when cross-examined, he declared that he could not positively swear that the vessel was at anchor less than three miles off Cape Sierra Leone. Three witnesses were called on behalf of the Claimants, Coker, the Captain of one of the boats into which the goods were removed from the Belus on the 12th and 13th of April, 1865, and two boatmen, who proved that the vessel was at anchor, when the goods were removed from her, more than three miles off Cape Sierra Leone. Judgment was pronounced by the Deputy Judge on the 17th of August, 1865; after observing that the question of the goods unladen from the Belus while out of the jurisdiction of the Colony was the real issue, and that it was incumbent upon the Appellant, Rolet, to prove that the goods were unladen from the Belus while out of the jurisdiction, that is, three miles from the Colony, or three miles from a line running from point to point, decided that the goods, being liable to payment of duty, were unladen from the Belus while at anchor within the Colony before due entry of such goods, and also before any warrant or sufferance had been granted for the unlading thereof, contrary to the Ordinances of the Colony of the 31st December, 1849, sections 4, 11, and 13; the Order in Council of the 13th February, 1849, section 6; the Ordinance of the 19th July, 1854, sections 2 and 8; and the 21st section of the Order in Council of 13th February, 1849. He also held, that the vessel being within the jurisdiction, lighthouse dues became payable under the 1st section of the Ordinance, 9th August, 1850; and the fact that the acting Collector did not demand the lighthouse dues, shewed he was not aware of the incorrectness of the statements made by Lecomte and Barlatt, but gave credit to them. His Honour further observed, that this cir J. C. 1866 ROLET V. THE QUEEN. J. C. 1866 ROLET V. THE QUEEN. cumstance, independent of others, went to shew that the account given by the Seizor of conversations between himself, Lecomte, and Barlatt, contained the true version of the transaction with these parties. The Belus having, in His Honour's opinion, been clearly proved to have at one time been within the jurisdiction of the Colony, and the lighthouse dues not having been paid for her, was, in his opinion, another ground for the forfeiture of the goods, under the 2nd section of the Ordinance of the 19th July, 1854, whether the vessel was or was not within the jurisdiction of the Colony at the time the goods were unladen from her. The Deputy Judge considering, therefore, that the goods which were unladen and unshipped from the Belus into the boats, and landed at the wharf at Freetown, were illegally removed from her, held that the goods and boats were forfeited to the Crown, and condemned the Claimants in the costs of the prosecution. The Appellants appealed from this decree, as also from the interlocutory decree of the 26th of June, 1865. Mr. Edmund F. Moore, Mr. Rainy, and Mr. Pater, for the Appellants: We appeal as well from the interlocutory decree of the 26th of June, 1865, by which the pleas to the jurisdiction of the ViceAdmiralty Court, as then constituted, were rejected and ordered to be struck out; as from the final decree condemning the goods and boats. Our application to appeal from the interlocutory decree was refused, as premature, but we are entitled to question that decree now, since it has been held in this Court that the hearing of a cause is one continuous act: Barry v. Butlin (1); Handley v. Edwards (2); and that it is not necessary to assert an appeal against an interlocutory decree, even though by so doing the whole question involved in the ultimate appeal might have been raised: Cameron v. Fraser (3); The Queen v. Belcher (4); Williams v. The Bishop of Salisbury (5); Jones v. Gough (6). The objection taken as to the jurisdiction of the Deputy Judge was well founded, Mr. Nicol having no jurisdiction. His appointment (1) 1 Moore's P. C. Cases, 98. (2) 4 Ibid. 407. (3) 4 Ibid. 1. (4) 6 Moore's P. C. Cases, 471. J. C. 1866 ROLET บ. as Deputy Judge was invalid. The commission to Chief Justice Carr appointing him Judge of the Vice-Admiralty Court, in pursuance of the Letters-Patent, dated the 26th of May, 1859, gave him power, under certain circumstances, to depute and surrogate a THE QUEEN. deputy; that power he exercised in the appointment of Mr. Skelton, upon whose death he might, had he been in the Colony, have exercised the same power again, by making a fresh appointment, but being absent from the Colony, and the office of Judge of the Vice-Admiralty Court vacant, the Statute, 26 & 27 Vict. c. 24, s. 4, provides that the acting Chief Justice for the time being shall be such Judge; and Mr. Huggins being the then acting Chief Justice, was, under that Statute, the Judge of the Vice-Admiralty Court during the Chief Justice's absence. He had, however, no power under that Statute to surrogate or depute a deputy. The Statute controlled the commission, and under it the Chief Justice Carr, or Mr. Huggins, as acting Judge, were precluded from naming a deputy. Power to surrogate a Deputy Judge can only be by Act of Parliament. In the case of The Queen v. Dulwich College (1), Lord Campbell says, "the Crown cannot enable a man to appoint Magistrates:" Jewetson v. Dyson supports the same position (2). The commission granted by Huggins to Nicol was, therefore, ultra vires, and illegal. Such was the plea to the jurisdiction, which we submit was well founded, and ought to prevail. With respect to the principal appeal, we contend that the decree of the 17th of August, 1865, besides being pronounced by a Judge without jurisdiction, was unwarranted by the circumstances disclosed in the evidence, improperly and irregularly obtained, and bad in law. The seizure, in the first instance, was illegal and unjustifiable; the burthen of proof to justify the seizure of the boats and goods of the Appellant was on the Seizor, who failed to establish any case to justify such an extreme act. But the proceedings were as irregular as they were illegal; they were not properly instituted. The Monition ought to have been extracted by Her Majesty's Advocate, who was practising in the Colony Order in Council, 13th of February, 1849, sec. 29; Sierra Leone Ordinances, Vol. ii. p. 205. A similar enactment exists in revenue cases, Statute 16 & 17 Vict. c. 107, which, by section 186, (1) 17 Q. B. (N.S.) 615. (2) 9 M. & W. 585. J. C. 1866 ROLET V. THE QUEEN. provides that no suit shall be commenced for the recovery of any penalty or forfeiture except in the name of some Officer of the Customs or Navy, or of Her Majesty's Advocate or Attorney-General for the place where such suit shall be commenced. Now, it appears from the Monition that it was extracted by Dougan, who was not an Officer of the Crown, nor does it upon the face of it state that it was extracted at the instance of any such Officer; it states only the seizure of the goods by Shaw, the acting Collector of Customs. It moreover alleges Rolet to be the owner of the boats, which, being numbered, were well known to Dougan, as well as every one connected with the harbour, must belong to the registered boatmen, whose names were on the harbour-books. They ought, therefore, to have been separately monished and served; again, there was no proper service of the Monition; being for penalties, by the Rules of practice framed pursuant to the Statute, 2 & 3 Will. 4, c. 51, personal service was absolutely necessary (Rules and Regulations of the Admiralty Courts Abroad, § 27, p. 20): Hocquard v. The Queen (1). These rules have been held by this Tribunal to have the same force and effect as the Act itself, in virtue of which they were framed: The Queen v. Jose Alves Dias (2). Now, these rules require that if the Monition contain the names of the owners or others from whom penalties are sought to be recovered, it must be personally served on the parties; while the 27th section of the same Rules also requires that where the Monition specifies the names of the parties cited, it must be personally served on them. Here, the service, instead of being on Rolet, was on Lecomte, who is there stated to be the Attorney for Rolet, which he never was, being but his managing clerk in the Colony; but the suit being a penal one, no appearance of Lecomte could bind Rolet, even if Lecomte had been his Attorney. Even consent of the Defendant cannot give jurisdiction: Lawrence v. Wilcock (3); Andrews v. Elliot (4). The Monition having been extracted and served thus irregularly, the claim was brought in, according to the usual practice. Such claim was on behalf of Rolet for the goods, and by the Boatmen for the boats. The claim was supported by affidavit, nevertheless the Libel filed on behalf of the Seizor ignored the Boatmen, whose boats had been (1) 11 Moore's P. C. Cases, 175. (3) 11 Ad. & El. 941. seized altogether, and proceeded only against Rolet, claiming penalties as well as forfeiture of his goods. There was the same irregularity in the Libel as in the Monition, though it purported to be on behalf of the Crown, it was brought in by Dougan on behalf of Shaw, who was himself but a substitute for the Collector of Her Majesty's Customs, and was described only as the acting Collector. Although the Appellants, the owners of the boats, put in a claim, the Libel made no mention of these parties, yet by the decree the boats are forfeited, and the owners are condemned in costs, and this in a case of penalties! A Libel is similar to a declaration at Common law, and no judgment could be given against any party not named in the declaration. The Libel pleaded the breach of the same Orders in Council and Ordinances as were set out in the Monition, which was objected to, as insufficient in law to warrant the Seizors' prayer; but such objection was overruled, and the Libel ordered to be admitted, the Deputy Judge, ex mero motu, ordering it to be reformed by striking out the penalties sued for. This, we apprehend, was also irregular, and beyond his authority. Then upon the merits we contend that, upon the evidence of Pike and Johnson, the Belus was, on the 12th and 13th of April, 1865, when the goods were unshipped from her into the boats, at anchor more than three miles from Cape Sierra Leone, and, therefore, out of the jurisdiction of the harbour of Sierra Leone: but that, even if she had been unladen within the jurisdiction of the Colony, the Appellants, not being the owners or consignees of the Belus, and ignorant of the fact, could not be held liable for her alleged default, the goods having been reported to the acting Collector, who had granted a permit for landing them, and subsequently permitted entries for them to be passed, and the wharfage paid to him, and the duties on the goods secured by the usual bond to the Crown, before any portion thereof were delivered by the Customs to the owners. Therefore, even if the Belus was within the jurisdiction, the Seizor was estopped from shewing the contrary. It was proved, moreover, that there was no fraud or attempted fraud in describing the goods as consigned to a place without the harbour of Sierra Leone, such description being mere matter of form, and not requisite. No advantage could accrue to the Appellant, Rolet, from such a statement. With regard to the alleged breach of the J. C. 1866 ROLET v. THE QUEEN. |