The Sun.
London, England, 1851-02-19 00:00:00

WEDNESDAY EVENING,

company; and some, they say, were overdrawings or
excess of cargo, or in excess with reference to the piles,
the company having satisfied the warrants, which re-
quired their delivery of the whole. As to these, I very
much doubt whether the argument of Sir F. Kelly is
not perfectly just and true, that however much the over-
drawing the sample, in the keeping the excesses might
be a fraud on the merchant. Ido not think that would
make them subject to forfeiture, and on this point lam
fortified by the opinion of my Learned Brethren whom
I have consulted on the subject. Again, some of the
counts charge a removal of the goods with the intention
of evading the duty. Igo along with the arguments of
the counsel for the defendants, that this intention does
not appear at all from the evidence. It is perfectly
clear that if the sweepings were intended for the home
market they must have paid the duty; and it is not pre-
tended that any things were improperly taken out of the
docks; and with respect to those things intended for ex-
portation there is no duty to pay at all. It seemsdifficult,
therefore, to impute any intention of evading the duty
to any persons engaged in the transaction. But another
question will arise as to some particular articles—
namely, whether they were dealt with in a manner to
subject them to forfeiture ? I may hero say that the
Customs can make no distinction between a wealthy
company and any obscure individual. The London
Docks Company, like every other partnership, are
liable for the acts of its servants. There would be no
safety for anyone if this were not so. If what is done is
in the course of the business of the servants, the em-
ployer is liable ; and in some cases he is subject even to
penalty, still more, to the forfeiture of the goods, as in
the present case, where the judgment is in rem. To
return to the evidence of the witnesses for the Crown.
Oldham says that there ought to be no cocoa sweepings.
It is very probable that this evidence, as well as that of
tir. Knight, goes too far. The cocoa at the West
India Docks, as to which Mr. Knight spoke, is in casks,
whereas that in the London Decks is in bags, which are
much more subject to damage, and consequently mere
likely to allow a portion of their contents to escape than
casks. His Lordship then proceeded to read and com-
ment on Oldham's evidence. He says, on cross-examina-
tion, that the goods are liable to duty while they remain
in the docks, and that they cannot escape unless they are
clandestinely removed. Of this, as I have already said,
there is no evidence. I consider that there has been no
contradiction at all to the evidence on the part of the de-
fendants, that the account of sweepings, including the
20 casks of sugar, was delivered at the end of 1849. I
think, too, that there can be no doubt that sweepings to
an extent to be called merchandise had been pointedly
called io the attention of the Customs before that time;
this fortifies in part my opinion that the Solicitor Gene-
ral's view of the law was not correct, and that the in-
stant an article assumed the shape of merchandize it
mast be considered as illegal unless brought to the notice
of the Customs, because the Customs have themselves
recegnized the practice of collecting together that which
could be rendered useful, and exporting it as merchan-
dize. Oldham goes on to say, that in room No. 16,
where the cocoa was, Cleaver pointed out seven bags;
some of these were original packages; some, if not all of
them, have been traced by the defendants to the cargoes
to which they belonged, notwithstanding the warrant
which required their delivery had been satisfied. To
my judgment this proves that some other packages were
delivered in their place. This is the more probable, as
we find that one man (Atkins) was dismissed for
substituting one package for another. Now with re-
gard to ell these packages of cocoa, it i 3 to be
observed that although the witnesses for the
defence were put in opposition to the Donovans, the
Robinses, and the Smiths, they did not contradict the
statement cf Oldham and the other officers, that these
packages of cocoa were represented as sweepings. Then
John Cockshott states that in room 35 there were some
packages from the Hanover's cargo, which were stowed
under the great wheel. At first it appeared that the things
stowed under the wheel were in a pllee Vconceal men t, but
that certainly turned out not to be the case. The objec •
tion, however, is not that they were put there out of sight,
but that they were put there amongst odds and ends,
where the officers would not be likely to look for them.
The package 823, marked HB 128, No. 221, he says, was
stowed amongst a pile of rice. There is no contradiction
as to this. There can be no doubt, therefore, that it
was where it ought not to have been. As to this, the
ith and Bth counts, which charge a clandestine re-
moval, appear applicable. In my opinion, the point
of law is, that if you believe that this cocoa was put on
the pile of rice for the purpose of preventing its being
seen by the officers, that is for the purpose of pre-
venting its being noticed, as it would have been,
had it not been there, you must find that it was
clandestinely and illegally removed and fraudently con-
cealed. The ninth and tenth counts charge, it is true, a
fraudulent concealment for the purpose of evading the
duty. It may have been done, not for the pur-
pose of evading the duty, but for some other purpose.
In that case I think it was forfeited on the seventh and
eighth counts; but I think that you will find also on the
ninth and tenth counts for the Crown, but you should
find specially at the same time that it was not done for
the purpose of evading the duty. It is right to say that
the fact of this cocoa having been put upon the rice is
sworn to by one of that class of witnesses who, the Soli-
citor-General has properly admitted, were not so worthy
of credit as many others; but, in confirmation of his
account, you have the officers, who say they found the
cocoa amongst the rice. Mr. Spenceley, by brushing
and dusting, has found out the marks of some of the
bas, and has shown, I think, that the officer was mis-
taken in saying that these packages had not been
weighed, but ho does not deny that the packages
were found where the officers say they were.
He says, as to some of them, very probably they
were found under sweepings. Now, I must tell you
as my opinion of the law, subject to correction, that if
they were there with a view to their being mixed with
the sweepings so as to withdraw them from the notice
of the Customs officers, they were clandestinely removed
and would be forfeited. I take it as the view of all of
you, that none of this was done with a view of evading
the duty. Still, if it was done in any way to prevent its
being the subject of research, or to conceal the fact from
the Custom-house officers, then you must find for the
Crown as to the portion so concealed. I must say that
I cannot discover any ground upon which the greater
part of the cocoa can be considered as forfeited; and I
think your attention will have to be directed to some six
or seven packages of cocoa only—namely, those as to
which Mr. Spenceley can give no account, except that
they were portions of a particular cargo. They were
i ' clearly cargo; and f they were put with the sweepings
to put them out of sight, they are, in my opinion, liable
to forfeiture. As to the 23 packages and the two barrels,
which were clearly sweepings, it is proved that the prac-
tice existed of supplying any deficiencies in the bags
from that which had been clean picked, and that when
the whole pile was removed the company took the por-
tions of cocoa which had fallen to the bottom and had so
occasioned the deficiencies. I think in all this there was
no ground for seizure.
sir F. KELLY called his Lordship's attention to Mr.
Spenceley having said that the cocoa was not on
a pile of rice, and that everything seized was visible
to sight.

The CHIEF BARON—But he said afterwards that he
knew nothing about it. Then as to the sugar. The 20
hogsheads, it is said, were collected from overdrawings
during the year 1849. Ilearne's books are certainly
suspicious, but I can see no object which he had in snak-
ing the alteration which he did, and, independently of
him, I see no reason to doubt that the account, which
was made up in 1849, included these 20 casks. I repeat
that if these were made up of overdrawings and other
irregular perquisites, taken possibly by the men to in-
crease the sweepings, they would not on that account be
liable to forfeiture. As to the eight casks, I think it
probable that there was some such hurry in getting the
various quantities together as was described by some of
the witnesses. (His Lordship then went through the
evidence as to these eight casks.) You will probably
not credit the statement of Robins, that the sugar
stowed in one of these casks consisted of the ten
bags of Manila sugar short shipped to Antwerp, and 15
bags brought from his laboratory. With reference to
the 10 bags said to have been short shipped to Antwerp,
I think much more evidence ought to have been given to
induce you to believe that that sugar was dealt within the
manner suggested. I think the Crown aheuld have
waited till the mate came back, and could have given
a more intelligible account of the matter. The story is
contradicted by persons of greater respectability than
those who assert it. It seems little likely that the mate,
had he been deprived of the 10 bags, would have con-
tented himself with merely grumbling and gossiping
amongst the inferior servants of the company, instead
of making his complaint to Ddr. Rowles, or the heads of
the establishment, particularly when it is stated that the
loss fell upon himself, and amounted nearly to his
year's earnings. On this head, as on others, probably
the witnesses for the Crown exaggerated extremely the
little they had to say, while the officers of the company,
perhaps, did not say all they might have said. I now
come to the two boxes of Elavannah sugar, which consti-
tuted one of the 28 casks. Wickes says that these two
boxes were packed without consideration, and in order to
screenPontyn, but with whatever motive it is certain they
were removed from one package to another. I think
you will not doubt that they were surplus cargo; it is
g
even uncertain whether they had ever been entered, in
which case they ought to have gone to the Queen's bag-
gage warehouse. It is my opinion that this was liable to
be seized, wholly irrespective of whether it was intended
to avoid the payment of duty, and that it was a fraudu-
lent concealment. And that, therefore, on the 7th, Bth,
9th, and 10th counts, as to this you must give a verdict
for the Crown, subject to the reservation as to the 9th
and 10th counts, which I have already mentioned. I
think it right to say that the London Dock Company
have, with the exception of Fey, called every witness
who could throw any light on those transactions, and
that they have all distinctly contradicted the stories
theas tom eDroahvaines
s'scorpnreorp.eratny, and converting it to the
and the system of carrying off
company's use. lhe question is, has there been
any concealment or removal for any purpose what-
ever, so as to withdraw tho packages from the ob-
servation of the officers? On this head your attention
counts.willb e confinedl
have saidsolely
whichto othe
the 7 cocoa t h I
think liable to, Bth, 9th, and 10th
forfeiture; of the sugar I think the two boxes of Ha-
vannah th only part which is seisable. If you think
that was taken up-stairs from one warehouse to another,
and that it was afterwards put into the cask, as is
probable, for the purpose of getting anything that might
be subject to question out of sight of the oficers, you
must find for the Crown. A question may arise as to
whether there has been any identification of the parti-
cular casks in which these boxes were put. I own, 1
think, that if it is not distinguishable from the rest, the
whole eight casks are forfeited. As to the cocoa, except
five or six bags, the verdict ought to bo for the de-
fendants. Those which would appear to have been
placed amongst the sweepings with the same view as the
two boxes of sugar in the cask, you must find for the
Crown,