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the satisfaction of the commissioners, according to their respective jurisdictions, that the forfeiture arose without any design of fraud in the proprietor of such goods. And in case the seizure shall have been made by any officer in any of his Majesty's settlements or plantations, or on the high seas, it must be made to appear to the satisfaction of the commissioners of customs in England, that the seizure was occasioned by the proprietor of such goods having acted in conformity with the orders or directions which the governor or chief officer of any settlement or plantation may have deemed it expedient, on any particular emer

gency, to issue.

HII. But in any case wherein the commissioners shall exer- Terms on which cise the powers vested in them, such goods, &c. shall be restored restoration is to

be made, 51 G. to the proprietor, in such manner, and on such terms and con- 3. c. 96. ditions, as, under the circumstances of the case, shall appear to the commissioners to be reasonable, and as they shall think fit to direct; and, if the proprietor shall comply with the terms and Proprietor conditions prescribed by them, it shall not be lawful for the complying. officer of customs or any other person who shall have seized such 51 Geo. 3. c. 96. goods, &c. or any other person whatever on his behalf, to proceed in any manner for their condemnation : but, if such proprietor Proprietor not shall not comply with the terms and conditions, such officer or

complying. person is to be at liberty to proceed for the condemnation of such goods, &c.; provided always, that if such proprietor shall accept the terms and conditions prescribed by the commissioners of customs, such proprietor shall not have, or be entitled to any recompence or damage on account of the seizure or detention of such goods, &c., or maintain any action whatever for the same.

IV. This act was followed by other statutes, framed upon views 54 Geo. 3. c. of the same equity and liberal policy. Thus, the 54 Geo. 3. 171. 8: 1: How c. 171. makes it lawful for the commissioners of the treasury, by of the treasury any order made for that purpose, under their hands, to direct any seizures. ships or goods whatever, seized as forfeited, by virtue of any act relating to the revenue of customs or excise, or any act for the regulation of the trade and navigation of this kingdom, to be restored to the proprietor on the terms which shall be mentioned in any such order. The commissioners are likewise empowered to mitigate or remit any penalty or forfeiture which shall have been incurred under any law relating to his Majesty's revenue of customs or excise, or any act relating to the trade and navigation of this kingdom.

V. The act, however, with proper precaution, provides that, in Terms to be any case wherein the commissioners shall exercise the powers sect. 2

complied with,

vested in them, such goods shall be restored to the proprietors, or such fines, penalties, or forfeitures, remitted or mitigated, in such manner, and

upon such terms as to costs or otherwise, as, under the circumstances of the individual case, shall appear to the commissioners to be reasonable, and as they shall think fit to direct. And no person is to be entitled to the benefit of any such order,

unless the terms therein contained shall be complied with. 56 G. 3. c. 104.

VI. In order, however, that lenity might not relax vigilance, 8. 7. Reward to informers. nor too much discourage that inspection and supervision in subor

dinate officers and agents, by which the interests of the revenue can alone be maintained, and encroachments and frauds repelled and punished, the same act makes it lawful for the lords commissioners of the treasury, or for the commissioners of customs or excise, under their direction, to order so much of the reward, part, or share of any seizure, or of the value thereof, as is by this act given or granted to the officers making any such seizure as they may deem proper, to be paid to the persons by whose information or through whose means and assistance such seizure may be so made; and that every such reward, or share of any such seizure, or of the value thereof, as shall, under this or any other act be payable to any officers, non-commissioned officers, petty officers, seamen or privates of his Majesty's army, navy, or marines, or acting under the orders of the commissioners of the Admiralty of Great Britain and Ireland, shall be divided and distributed in such proportions, and according to such regulations and orders as his Majesty shall, by his order or orders in council, or by his royal

proclamation in that behalf, be pleased to direct or appoint. (a) By whom ac- VII. The fourteenth section of this act contains a clause which tions to be brought, s. 14. is meant to restrain vexatious informations and suits for forfeiture.

It enacts, that it shall not be lawful for any person whatsoever to commence, prosecute, enter, or file, or cause to be commenced, &c. any action, bill, plaint or information against any person for the recovery on any fine, penalty, or forfeiture, incurred under any act now in force, or which shall hereafter be made, relating to his

(a) By order of the Board of Cus- them by the owner, or any person 'toms, dated Nov. 29, 1817, in cases duly authorized by him. And by of seizure of goods or vessels, when order of the Board of Customs, dated the proprietors are desirous of being June 23, 1818, informers are not to acquainted with the cause of such have niore than the reward of one seizure, the collector and comptroller third part of the seizing officer's and the seizing officers are not to share, without previous communiwithhold any proper information, on cation with, and special directious application being made to either of from the Board.

Majesty's revenue of customs or excise, or to issue, or cause to be issued, any writ of appraisement for the condemnation of any boat or other vessel, or any goods seized as forfeited by virtue of any such act, unless the same be commenced, &c. by order of the commissioners of customs or excise, or by or in the name of his Majesty's Attorney General ; and if any action, &c. is commenced, &c. by or in the name of any person whatsoever, except upon such order, or by or in the name of his Majesty's Attorney General, the same, and all proceedings thereupon had, shall be null and void; and the court, or justices of the peace, where, or before whom, such action, &c. shall be so commenced, &c., shall not permit any proceeding to be had thereupon, (a)

(a) A rule had been obtained call. power, so vested in them, the coming on the collector of custoins for missioners have made an order, statthe port of Falmouth to shew cause ing that they are satisfied that no fraud why the writ of appraisement of cer- was intended on the part of the inastain vessels and their cargoes, sued ters or proprietors of the vessels seized, out of this court by the seizing officer, and that they have therefore ordered should not be quashed, and all further a restoration of the goods. For the procoedings thereon stayed. The ap- seizing officer it is contended, that plication was made on the part of the the commissioners have no power uncommissioners of customs, in aid of der the act to make such an order, an order made by them, under the without directing compensation to be authority of 51 Geo. 3. c. 96., for re- made to him, and imposing terms on storation of the subject of seizure, the proprictors for his indemnity and founded on their certificate that the protection. But it appears to the forfeiture had been incurred without court, that though, if any terms had fraud on the part of the owners. Cause been imposed, they must have been was shewn on behalf of the seizing complied with, yet that it is not neofficer, and contra:—THOMSON, Chief cessarily incumbent on the commisBaron, delivered the judgment of the sioners to ingraft terms on their order court, “ This application,” he said, for restoration. It is as a preliminary * is made to the court on the part of step to the enforcing of that order, the commissioners of customs, on the that the present application is made ground of their order, made in pur- on the part of the Crown. Perhaps suance of the powers vested in them we should go too far to order the by 51 Geo. 3. c. 96., which is founded writ of appraisement to be quashed, on the 27th of the same reign, c. 32. and therefore our order will be, that The 27th confines that power to ships all further proceedings on the writ of seized for breach of the revenue appraisement and indenture of seizure laws. The 51st extends it to all seiz- be stayed.” Rule absolute. In the ures made for any cause of forfeit- matter of the ship Maria, and other ure whatever. In pursuance of this vesscls, 1 Price's Exch. Rep. p. 4.,

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182

LAW OF NAVIGATION,

Merchant Shipping,

AND

MARITIME CONTRACTS.

PART II.

OF MERCHANT SHIPPING AND SEAMEN.

CHAPTER I.

OF OWNERS AND PART OWNERS.

Summary of
Part the First.

In the former part of this Treatise we have been occupied in developing and explaining the general navigation system of the country. We have shewn the origin and policy of this system, as well with respect to our whole trade, as through all its subdivisions and details. We have, we trust, made it manifest, that the same reasons and the same principles, varying only according to circumstances, which occasionally throw them, in practice, into different shapes, are pursued by our navigation laws, both in our home, colonial, foreign, and European trade.

It must be obvious to every one that it is a matter of indispensable necessity to the English merchant to be instructed in a system in which the law comprehends his interests and duties. Under these circumstances, we have deemed it necessary to enter with some minuteness into the details of the several provisions for regulating the trade of our colonies; and for the sake of explaining them, to give the reason and principle upon which they proceed. In our remarks on this trade we have been the more particular, on account of the importance of the subject and the complexity of some of the regulations. We have been equally so upon the subject of the trade with Asia, Africa, and America, which involves the charters of some of our great public companies, and more especially of the East India Company. In our observations on the European trade we have been necessarily led into a review of the late treaties of commerce: but have dispatched them with as much brevity as was consistent with clearness and utility; insisting upon nothing but what is necessary to the practical merchant, and what may operate in cases brought before our own courts of law. As respects the fisheries, we have only touched upon them shortly, as they belong rather to the custom house regulations than to a treatise on the general law of shipping and navigation, This trade, indeed, within the last few years, has been nearly wholly recast, and there is still a prevalent disposition to get rid entirely of the system of bounties. In the Chapter on the registry acts, the most important branch of our navigation law, and which has been much altered and improved by the new act, we have deemed it our duty to examine the leading decisions in full, under former acts, and to deduce such principles from them as may be safely applied in practice to analogous cases within the new statutc. We now proceed to the second part of our subject, the Law of Merchant Ships and Seamen; and we shall commence with explaining the rights and duties of owners and part-owners.

I. The property of ships is acquired, as that of other chattels, of property is either by being the fabricator of the thing, or by purchasing it of boipsi cand

how acquired. another; and ships, being personal chattels, devolve as assets to the representatives of the owners, their executors, or administrators. There is, however, this main difference in ships, as distinguishable from other personal chattels, namely, that not being subjects of market overt, and being moreover property of great value and always moving from place to place, the law will not vest the property in the buyer, unless it shall appear that the seller had authority to sell. (a) Hence property in ships, like real property, has in almost all times been transferred by written documents, in which the seller exhibits his power to sell, and by which the buyer may ascertain the safety of his purchase. Previous to the 34 Geo.3. Transfer of c. 68., it was matter of doubt whether a ship might not be trans- ships to be in

writing. ferred from hand to hand like other property, notwithstanding the previous act of the 26th of the late King. But this act required all

(a) Sec Abbott on Shipping, Part I. delivery of a ship by the builder, p. 2, 3, &c. See also as to the sale and Woods v. Paton, 5 Barn. & Ald. 942.

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