Barry against Arnaud

barry against arnaud. 1839. A collector of Customs, appointed by the commissioners under stat. 3 & 4 W. 4, c. 51, s. 6, to collect duties on articles coming into the kingdom, and, on payment, sign bills of entry which, by sect. 18, are a warrant for delivery of such articles to the party paying, is not a mere servant of the commissioners, but a substantive and immediate officer of the Crown; and his functions, as collector, are ministerial. Therefore, he is liable in an action for non-feasance in the exercise of his office; as for refusing to sign such bill of entry without payment of an excessive duty. The term " wreck" in stat. 3 & 4 W. 4, c. 52, s. 50, is not necessarily limited to goods which become forfeit to the Crown or its grantee by not being claimed within a year and a day, according to Stat. Westminster 1 (3 Ed. 1, c. 4). Goods were imported into this country, warehoused, entered for exportation, and shipped for Belgium: the vessel was lost within the English port, and the goods, being partly thrown upon the shore, and partly found floating on the sea and landed, were conveyed to the warehouse of the lord of the manor, and immediately claimed by the owner. (d) 5 Dowl. P. C. 41. The plea was pleaded to a count upon an account stated, as well as money paid. (a) Littledale J. was absent. 246 BARRY V. ARNAUD 10 AD. &E. 647. Held, that they were chargeable with duty as " wreck, brought or coming into the United Kingdom," within atat. 3 & 4 W. 4, c. 52, a. 50. [S. C. 2 P. & D. 633; 9 L. J. Q. B. 226. Diatinguished, Ymtng v. Davis, 1862-63, 7 H. &N. 765; 2 H. & C. 197.] The following case was atated by conaent, under a Judge's order, for the opinion of this Court. This action is brought by the plaintiff, a merchant of London, against the defendant, who was the collector of His late Majesty's Customs, and employed in the said duty of collector by the order and with the concurrence of the Commissioners of His said late Majesty's Customs for the port of Liverpool, for refusing, on the 6th day of August 1836, to accept from the plaintiff the sum of 1441. 12s. 8d., the same then being (as the plaintiff alleges) the full amount of the Customs duty then dug and payable to out lord the late King upon the delivery for home consumption of certain foreign goods, to wit 38,569 pounds' weight of unmanufactured tobacco, then being the property of the plaintiff, which had before then been brought or come into the United Kingdom, and were then deposited in certain warehouses at Liverpool, and for refusing to sign a bill of entry of the said tobacco upon the due payment of the said sum, where-[647]-by the plaintiff was prevented from obtaining the delivery of the said tobacco from the said warehouse, and from selling and disposing thereof to great advantage : and, the defendant having pleaded not guilty, and issue having been joined thereon, the parties have agreed to the following case. In or about March 1836, the tobacco in question amounted to 38,569 pounds' weight, having been, together with a certain other quantity of the same, now lost, imported into Great Uritaiti from the place of its growth, and warehoused in certain warehouse* at Liverpool, in the county of Lancaster, being then the property of W. & J. Brown & Co.; was duly entered for exportation from the port of Liverpool by Joseph Johnstone, consigned to J. Parswell Pilgrim Esquire at Antwerp, in the kingdom of Belgium, and then shipped on board a ship called the " London Packet," bound for Antwerp; with which tobacco the said ship sailed on the said intended voyage: but, shortly after leaving Liverpool, viz. on or about the 29th day of the said month of March, the said ship, after she got out of the limits of the port of Liverpool, met with contrary winds and bad weather, and was thereby forced and compelled to re-enter the limits of the said port, when and where she struck on certain sands in the Irish sea within the said limits, and was broken to pieces and became a total wreck, and all persons on board were drowned; but the tobacco in question, which formed part of the said ship's cargo, was saved ; that is to say, some of it was found floating on the sea, and the remainder was thrown on the shore of the English coast by tie sea, and was conveyed to the warehouse of Mr. Atherton the lord of the manor, into which the said tobacco was brought or came [648] as aforesaid; and the said tobacco was afterwards conveyed to a certain warehouse at Liverpool, where it was sold on the 12th day of April 1836, by the order of the said Joseph Johnstone, with the consent of the proper officers of His said late Majesty's Customs in that behalf: and the proceeds were applied, first to the payment of salvage and other usual charges, and then to the benefit and partial relief of the. underwriters, who had insured the same against loss by perils of the sea; and the plaintiff, being the highest bidder for it, became the purchaser of the same. Unmanufactured tobacco was, on the 6th day of August 1836, subject to a duty of Customs on importation into the United Kingdom of 3s. per pound; but on that day the tobacco in question had, by the absorption of sea water, increased in weight in the proportion of 60 per cent. In consequence of the damage it had thereby sustained under the circumstances hereinbefore detailed, it could not be sold for a sum amounting to 3s. per pound on its then weight, and was not in fact worth more than a total sum of 28921. 13s. 6d. By stat. 3 & 4 W. 4, c. 52, s. 50,it is enacted, "That all foreign goods,derelict, jetsam, flotsam, and wreck, brought or coming into the United Kingdom or into the Isle of Man, shall at all times be subject to the same duties as goods of the like kind imported into the United Kingdom respectively are subject to : " (a) " Provided also, [649] that (a) The words immediately following are : " Provided always, that if, for ascertaining the proper amount of duty so payable, any question shall arise aa to the origin of WAD. ft E. 680. BARRY V. ARNAUD 247 all auch goods as cannot be sold for the amount of duty due thereon shall be delivered over to the lord of the manor or other person entitled to receive the same, and shall be deemed to be unenumerated goods "(a)1. And by stat. 3 & 4 W. 4, c. 56, Schedule "Inwards," unenumerated goods, unmanufactured, are subject only to an ad valorem duty of 51. for every 1001. of the value. The defendant was, at the time of the tender hereinafter mentioned, the collector of His late Majesty's Customs for the port of Liverpool, and employed in the said duty of collector by the order and with the concurrence of the Commissioners of His said Majesty's Customs. His duty was to collect the proper amount of duty on each article for which an entry was tendered, and, upon such duty being paid, to sign a bill of entry acknowledging the receipt, and which then became a warrant authorising the delivery of such article from the charge of the proper officers. He had not, according to the proper course of his office, the actual custody of, or controul over, the articles upon which the duty was payable, nor had he in fact the actual custody of, or controul over, the tobacco in question; except that the officers who had such actual custody and controul might not deliver the article to the owner without such bill of entry being so signed. On the 6th day of August 1836, the plaintiff tendered to the defendant the sum of 1441. 12s. 8d., as and for the Customs duty due on the said tobacco on its being [650] entered for home consumption, being at and after the rate of 51. for every 1001. of the value of the said tobacco, and tendered to the defendant the usual bill of entry for the signature of the defendant, with two duplicates of the said bill of entry duly made and written, at the same time offering to deliver to the defendant as many more duplicates of the same as he should require ; when the defendant refused to accept the said sum of 1441. 12s. 8d. in discharge of the Customs duties due and payable in respect of the aaid tobacco, and also refused to sign the said bill of entry acknowledging the receipt, without which signature the officer having the custody of the tobacco could not deliver it to the plaintiff. The questions for the opinion of the Court are: 1. Whether the tender waa sufficient: and, if so, then, 2. Whether the defendant is liable to this action under the above circumstances. If the Court shall be of opinion in the affirmative on both the questions, tben judgment to be entered for the plaintiff for the damages laid in the declaration to secure the delivery of the said tobacco to the plaintiff, on payment by the plaintiff to the Crown of the said sum of 1441. 12s. 8d.; and also to secure the payment of costs and of such further sum for damages as shall or may be awarded to the plaintiff by, &c. [The case then named an arbitrator.] But if the Court shall be of opinion in the negative on either question, then the judgment to be entered for the defendant with costs. The casa was argued in last Easter term (a)2. [651] Chamiell, for the plaintiff. First, the tender was proper. The goods, if imported, would have been subject to a duty of 3s. per pound; and the attempt is to claim that. If they were wreck, they fall within stat. 3 & 4 W. c. 52, s. 50, by which foreign goods, derelict, jetsam, flotsam, and wreck, are subjected to the same duties as goods of the like kind imported, but with the proviso that, when they cannot be sold for the amount of duty, they shall be deemed "unenumerated goods;"and these, by stat. 3 & 4 W. 4, c. 56, Schedule, entitled "Duties of Customs Inwards,"are subject only to the duty of 51. for every 1001. of the value. The tobacco in question was wreck, and could not be sold...