Court Of Exchequer, Frida...
On the lOtlh inst., Mr. Broughasni, oa- the part of the defendant, obtained a rule, calling upon the Crownl to show cause why the-ver- dict which had bcen givon against the defendant in this case should not be set aside, and a new trial granted. The SO LICITOR-OESERAL this day appeaTed to show cause. Thc ClnlEF BARO}R stated, that the cause was tried before hin on the 8th of Julv last. Thc indictment contained three countr :_ the first clharged the defendant with being a debtor to the Crown, in conscquence of having omitted to pay the Custom-house duties on certain wine; the second count charged him with being a debtor to tite Crown for monies had and received; and the third charged him with being a debtor on an account stated. His Lordship then reat bis notes of the trial. (It was reported In The 7itnes ot the 9th of July.) The joTy found a erdtict for the Crown for 1141. 19g. 3d. The SOL5CtTOn-GENEELAL, observed, that the facts of the case were very concise, as the Court might have collgcted froni the Chief Baron's report of the trial. They were simplv as he would state. A Pottuguese Am'bassador, 5il. d'Oliieira, on retiringfrom this country, directe( his solicitor, iM2r. Haddon, to emplov an auc. tionecr to sell his wine. Alr. Thorniton, who, he believed, we a very respectable auctioneer, was accordingly employed to sell the wille, which he did; and it was to obtain the duties of customs wvhich were _i tpon the wine so sold that an intb'rm3tion had been filed again8t :t: Thornton, andl the verdict obtained which it was sought to set 8i,de. A letter, writtea by 1I)r. Tlornton to tlse Commissioners of Customns, was in evidence, in vwicb he requested to be allawed to pay for the wines which he was eimployed to sell, according to the lorate of dutics. It appeared, that under particular circumstances, into which it was unnecessary for him to enter. the low duties Vero sormetimes paid, and sometimes the high tluties ; in short, the matter was ieft to the discretion of the Board of Cus- toms. He. mentioned the circumstance of the writing of the letter, because it vwas iTrportant as proving that 1Ir. Thorn- tort had uotice of the clairm of Government to the payment of the duties en the wifies. It was also in eVidence that tbe excise dqties, amounting to 1191. and upwards, had been paid, and paid, too, by Air. Thornton. That was anotherfact bringing hene to the defemnlant a perfect knowvledge of tlte claim of Government,and likewise evinc. ing that he knew perfectly wcU that he vwas the person who was re- sponsible for the payment of the duties. M'r. Thornton, as lie had before stated, sold tbte ivines, and then thought prnoer to pay over the proceeds of the sale, after deducting tne excise duties, to Mr. Hadtlon. Mlr. Thornton ought likewise to have deducted the customsn duties. It was [proved at the trial. that, the defentlart applied to the Board. of Customs for tine, to endeavour to obtain the amount of the duties frois, Air.. Had. (ion imf expressed his, thanks wlien his request was complied with. He biad noat the good fortune to know the line of argument which his learned friend (Ir. Broughamn) Ulcatitto pursue; but he under-. stood it was to be contentded that the defendant was not liable to pay the money demanided of him by the Crown, on several grounds: first, on account of the suppoted ptivilegd of a foreign ambassador to sell his wines exempt from tiuty; secondly, tltat ufipposing the duties were liable to be pald, MIr. Thorn. ton was not, in point of law, the person riro,t, whom the Crown could deniand paynent: thlirdly, that dIlr. Thornton, having paid overthe morey tor. Haddon, or his lBtcellency, aor sonic other person, lie could not be charged on account of tonev had and received. IMr. BROUOHASI observed, that the grounds on which he found. etd hlis argument for a new trial were those two last mentioned by the ' 8niritor-General. The SoLscrTon-GSrENEAL continued. He would firrt say a i few words with respect to the supposed privileges of Foreign Am. bassadorE. It was perfectly' clear that the statute of Anne, neither diretlynorby ~plintin, cnf~red on oeign Mlinisteia ft-eiiht Co iportwin dut fre. Terow& nt a word in the statute which; appled o Frein Amaasdor spo~dtheir goods. Mr.Daro HULLOI.-.O1Iyes, tera Is.' The SLICITR-GENRAL mant with respect to their exemp- tion from the particla duties. The 7hof Anne, can. 12, after re-. citing the circumstnewhich gave rise to the act,, proceeds as follows-" To preetlike inconveniences in future, be it rurther declarted, that all writs aixd processes at any t.ime sued forth,wbereby the person of any Ambassador, or other Minister, fromn a foreign state, received htere by hier Mlajesty or her suece.ssos, or his, servanit, may be arrested, or imprisoned, br hils or their goods or clsatteLq mnay be seizedl, distrained or attached, shall be deemed null and- void for all intents and purposes.'- That clause had on the trial been reaoncd upon.as if It conveyedl an implicationi that the wines of a foreign minister, disposed of under circumrstances similar to theo present, were not liable to the paymenit of duties. How It could be argued that the claiming of payment of customs duties as in the present case was, a-ssimilated to a3distrainring.or seiz- ingof goods, hecouldanot wYell imagine. The history of the statute of Anne wis well known. It originated from acircumnstance which created a considerable senisation at the timne it orcurred, and was mentioned In Blackestone's Commentaries, vol. i. p. 255. The cir- cumstance which led to thie passing of the act, as well as the word- ing of the act itself, provedI that the chief object of the statute was to protect the persons of Amibassadors from arrest ; and that par of'th ac whch rotete thir goods from process was, in is pinon,auxliay t th prtecionof their pereons, and hlad no pplcaionto hequetio wichhewas thien discussing. No cas ha evr ocured n tis ounry n whichi such a claim as that whic wa ne adance onthepar ofthp nambaasadefrs had been asseted He elived e ws corec inasserting, that his learnedt frendl woiuld not be able to preduce aylegal or historical evidence to show thiat the statute of Anne had evrbeen considered as extendl- ing to a ease like the present. It would he expected that he should say a few words as to the customi which hdobtained of armbam~dors importingwine free of duty. Thiat wostga part of the subject on which nobody was so capable of producing a forcible and convincing argu- mnent as his learned fTiend. It wasnaquestion congenialto his course ofrea d~ing, and he knewr of no persotn whiose arguments uponi alasost any~ ubect were likelv to c-arry greater weight with them than those of Mr rugham. '2'lire was, however, no law which authorized an .attibassadlor to import wine duty free, m-ucht lets to sell it in thisi country under the same circurastances. If it were necessary, he could produce authorities, to prove that suchi a 7rivilecg Was contrary to the law of nations. One writer had laidl it down thapt a foreign minister must not be a trader; but if the privilege in questien were granted to.art anibassador, he would become a wine-merchant. On the 22d of July, 1707, an insitruction was sient from Lord Godolpphin, then First Lordi of thie Treasury, to the Board of Castoms, limiting the quantity of wine which foreign aimbassadors were to be allowed to export duty tree. He wouila read the document to the Court. M~r. Baron HULL.OCs.-You cannot reatlthat as evidence. Itis merely thie notion of Lord Godolphin as to the quantity of wine whichi an amnbassador ought to drink. The S0Lr,rcr9oa.G-sNRAL-_The pap9r, if he had been allowed to read it, would have satisfied the Court, that so far from anmbassa- dors being allowed to import winie in large quxantities, duty free, the-y were restrictedl to a few dozens of bottles. The wine of foreign am- bassadors still continued to be imlported under the authority of Lord Godolphin's order, and no permit ws usead on the occauqion. Hie wouldI say but a very few words remn thwearemnaining poiut.-namely,the liability of the defendant to pay the duties. ThatrIquestionhad been deciaed long ago in the case of the " Atterney-Oeneralv. 'Veeks," whaich was reported in Bunbtiry, 237. The question there was, wvhe- ther any person was liable to pay Custom-hiouse duties, except the real importer, who was abroad. The then Chief Baron decided that all persons whio were Jointly interested with the person abroadl, or hiis factor here, hae, a special interest in the pro- pet,andilmust pay the duties. In the present case, lie (tie Solici- tor-GVIeneal) considered the auictioneer Ras a factor, having a special initerest in the property, and tlherefore liable to the payment of' the duties. Under these circutustances, he trusted tha-ttthe Court would permit the verdict to stand. Air. CLARKE and Air. WALTONT followred on the samne side. Mlr. BRoUGseAa then addressed the Court in support of the rule. He would first address hiimself to thie subject of the Incon- venience which it lhad been said would arise if thec C ourt should de- termnine that his (Mlr. Broughamn's) view of' the question was cor- rect. He admitted to the fullest extent, that great danger and in- conivenience wotild arise from amnbassadors imiporting wine dlitty free, andI selling it in the market at thje same price ai wine upon which thc -duty liad been paid, andI pocketing the profits. He coulti not admrit any thing stronger against himself than thiat : but yet he contendedi that a foreigni ambassadlor could, unider the protectien of the law, import wine into thit country withatit the pay- inent of the duty, and sell it In the mnarket for what he couild get, without the Crown being able to prevent him from pocketing the whole of the proceeds. Air. Baron II ULL.OCK.-Ist it so, Al r. Broughamn? 1AIiglt not the Crowin seize thie wine on imnpartation ? Air. ]3aoUosrAM said, he would suppose that the wvine was at. already impo ted, and in the amibassador's cellar: lie then could do with it what. lie pleased. Mir. Daron GRASIAM..-..liglht not the wines be seized immedi- ately after the sale ? Air. BROUGHA-M Eaid, it wais only necessary to vary his sup- poslition a little, in order to meet the objectioni of the learned Judg9e. lIeI would suppose, that the amnbassador carried the wine in his own waggon to flie vendtee, ancd delivered it to huin. It surely would not be contended that the Crowni could coine upon the purchiaser for the duties. If' the Crown could claim the paymnent of the dittie-s fryom the first purchaser, it might also claim them from the hundredth. Such an argument could never be maintained. Hle hiad siupposed an extremne case; but it was ne- cessary for his argumient. At preseant, according to his view of the lawv, the Crown weas without a remedy, until a new act of Parliamient was passed to provide against thie course which mighit be pursued uncler tiec law as it at present stoodl. The CHIEF BARON.-Thiere is one way, Mfr. Brotigliam, in which an amrbassador might avail hilmself of his privilegec to defraud thie revenue, Ilie mnight sell the privilege of drinking a bottle of wine at his table every they. Air. 11RO0 GHAai.-The legislature had been aware of the abuses which the privileges of ambassadors might cover, aind had condes. voured to guard against them. By the act of Anne, to which lils learned friend the Solicitor-Genieral had alluded, it was provided thlat no servant of ani ambassador, being a trader within the descrip- tion of the bankrupt act, should be privileged or protected by the act. That ivas apoint in favour of his argument witl res,pect tothe privilege of ambassadors thremselves ; for whierever restrietionsa were introduced into an act of Parliamenit, the circumstance Operated sitrongly in favour of the parties to whom the proviso did not extend.- It was quite absurd to suppose that the first count could apply to the def'endant. How was the case puit? It wvas said that the defenidant sold certain winces on which no duty hiad been lpaid, anid that in virtue of that act he was liable to the payment otr thle duty. Tue mere sellinF of the wines could not make the defendant libeto th~e paymenit ot the duty. The count itself dlid not state that the wines were the dlefendant's, or th'at they were soldI as his. lie thus came back to the question wlhether the defendant, whlo hail acted in thie transaction as a twereagent to another person, couldi for lila deeds be issade a debtor of the Crown. lie admitted that lie mighit be so, ifit couldibe shown that lie hiad aspecitl tiroperty in tie goads; if, for instance, he had aceted as a factor, so as to come wvithin the scope of theame of then " Attorney-Gencral and Weeks."1 His learnied friend, whenhle adverted to thlat Case, hiad drawn no dlistinc- tion betwreen a factor anid a broker, or auctioneer. There was, how- ever, a great dift'orence between a factor and a broker. A broker lhad no lient on goods for a general balance as betwveen him sand his prin- cipal, but a, factor had. The latter had a complete cuertrol over the goods which were consigned tuk him, and had a general lieon on any Itaticlarparel f ood fo th whletransaction betweern himself and is rinipa. I th c~e o thlawa factor was the owner of the good whle heywerein is ustdy:not so with thte broker. Tue goodwer usallyin he andsof he wner or factor, whilst he was dealng iththen. Te cse ntli autioneer was precisely the satme as tat f th brker.liewas ot he Onerof thle 'goods pro0 te"ipore. and he dealt withi them onlv aanget. The Solicitor. General hiad assumed that the statute ofte t of Anne was in- tended imertly to protect the persona of amibassadors, anid that that pasitof the at twhich rela.ted to process against goods wvas meant. to be incidental to the nullitv of the proces against the person. Thiat, he thouight, withi subniissaton to hits learnedI friend, was not dlie proper construction of the statute. Hie liad no dloubt thei statute would cover all Exchequer process. It was admitted that goods, whilst in the hancds of a foreign minister, were not liable to process. In thte presenit case, there was no proof thlat thley had ever beeni out of the amrbassador's poissession ; So that here Was a case of thie Crown having a process against an ager.t on account of thie non.payrneent ofthe duties on goods whiich were not liab-e'to Ex- cheq'ier process. At thle timie that the Crowvn couldi not proceed agairnst the goodls in the hnands of the principal, the agent was to be deemed liable for sgomething in respect of' the liabili,y of the goods. A case was at present standing far argument before the Court, in ,which the question wvas, whetlher the Crown lhad a lieni on malt u'pon which the duty had not beeni paid, when it was in thie hands of a party ivlio hadl purchased it in ignorance of that circunistance. The questionl of the right of' the Crown, Under such circumrstances, hiad never been ilecided. It liad been said, that it wvas cleat the defend- ant considiered himtself liable to PqY tile duties, from his corminni. catiOns with the Boards of Customis and Excise. lie deinied that the def'endant had adimitted his liability ; but if be haul, it -wouldi only ha-ve beeni a declaration of opinionn Thie def'endant's commau- nications with the Excise referred to nothitug bevondl the payment of- the excitse duties, and his communications with the Cuitonas, it should be observed, did not take place till after the sale, and after the money had been paid. over. Air. Baron GAaaRow..Howv dees that fact stand on the evidence ? Mr.- BRtOUGisAM..J_le proceeaha of the sale were Paid over to 51r. Hfaddon every nighit. Ile would snappose that the defendant bad fully admnitted thlat he was liable. An admission oi fact was tmnudoubtedly conclusive against a party, and( he must abide the con- sequences of it; but niot so with an admission of law. A party could not admnit away h'is own right in point of law, and the Coatit wotild not permit buin to do so, He would now make a few observa. tions upon the quecstion, whether the defeandant was liable for Tioney liad and received. In the flist place, it was not in evidence that any portion of the mnosey wbich the defendant received was paid to him on account of the dltis Thr a n'vdnc11sewta h wines would not hare sold for the same sum if it had been stated in the catalogue that the ditties had not beets paid. All that wae in evidence was, that the wities haud been sold, and a certain sum rc- ceived for them. The case was parallel witil that of Sadler and Evans, commonly called " Lady Windsor's cate." Al r. Baron H 1ULLOCit._I do not think that Ladv Vindsor's case applies here. In that case the whole of the money was reeeived for Lady Windsor; but here the auctioneer, as I take'it, was agent pro taoto for thc Crown, and for the ambassador. Mr. BROUGHAM did niot perceive mTcli difference between the two cases. In Lady Windsor's case the defendant admnitted that he had received the money, but said that inasmuch as he had paid the money over to lilt pricpal before the aetion was brought, his prin- cipal, and not lie, teas liable. It shouhl be recollected too, that the defendant in that case had pait the motuey over with tihe fallknow- le 1Ze that it uwns a contestel matter; and ye- the Court decided that he was not liable undier an idictment tor money had and received. After souse further observations, the learned gentleman concluded with expressing a hope that hehadsaid enough toinduce the Coart to grant a new trial. The 35or,ctron..6EHERLA1 shortly replied. The CiiiE ' BARON said that the question before the Court was oneofgreatimportance, anti it had been; treated with very great ability on the Part of the defendant: every thing tvhicis it was pos- sible tor knowledge and talent to do had been done by the learned gentlesnan (Al. Brougham.) Hle, however, had lheard nothing which could alter the opitian which he had formedl on ulic trial of the cause, although, indeferenceto the learmed connsel, he haid given hinm leave to make the motion which had produced thje present dis- cussion, The impressiotn on hlis mind wus, that thC vet- dict was maintainable on thq se4ona ouht4 which. charged the defendant on accouhit of -'mey had aud rec46ved. --TIhe whole oftbe defendant'escciduct proveLthat he-was aaware tb't the duties ought to be paid to the Crown. I ,ewould vot expless nn opi nion with respect to the other edunts of 'the-ndictment, because it was unnecessa;ry to do so; He was of opiuion that -the verdict was tmaintainable' on the secondcoudt, and that tbe iule must be ais. charged witl eost. M. GBaron GRA RAw and Mr. Baron -aRoW concurred with the opinion pronounced by the COinrF SARON. MA Baron IIULLOCK declared that,lte was of opinioni>thi the verdict could be sustained on the first count. It was quite 'desr to him that the defendant must have known that the duties were to ,be paid upon the wine, because, before the wine could have been re- mtoved ftter the sale he Tnust have taken his oath that theduties had been paid. He doubted whethter the verdict could be sustained on the count which charged the defenidant withmoney had and received because thtere was no evidence that any portion of the money had been received en account of the duties. That was a matter entirely left to inference, which ought not to have been the case. The rule was then discharged. COURT OF EXCHEQUER, FRIDAY. Nov. 26. TH'E KING V. THORUNTONI.