Dec. 19.-Their Lordships' judgment was delivered by Sir R. PHILLIMORE.-This is an appeal from a decree of the Vice-Admiralty Court of New South Wales, which pronounced two cases of merchandise, imported on behalf of Prince, Ogg, and Co., a firm at Sydney, and the appellants, to be forfeited to Her Majesty. The appellants had purchased of a London firm, Messrs. Weintraud, Joyce, and Co., a quantity of trimmings and other wares called "soft" goods. They had also purchased of another London firm, Messrs. J. Lyons and Son, certain trunks and hat boxes. These latter articles had been forwarded in the same cases or packages with the former, in accordance, as it appears, with a common practice in the trade, the "soft" goods being packed up in the trunks and boxes. The invoice from Lyons and Son was sent to the appellants at Sydney, and they seem to have been in possession of it when the ship arrived. It was as follows:

20th March, 1871, as 1st April.

Invoice of ten packages marked and numbered as per margin. Shipped per Damascus @ Sydney. Messrs. Prince, Ogg, and Co. 655

Bought of Weintraud, Joyce, and Co. This invoice contained a description of the trimmings and other goods contained in the ten packages which had been purchased by the appellants from Messrs. Weintraud, Joyce, and Co., together with the invoice price, and also description of the boxes and trunks purchased by the appellants from Messrs. J. Lyons and Son, but did not mention the price of such boxes and trunks; and the total value appearing by the invoice to be the value of the goods therein mentioned was, in fact, only the invoice price of the goods purchased from Weintraud, Joyce, and Co., and did not include the price of the boxes and trunks purchased from Messrs. J. Lyons and Sons. The cases, or packages, were ten in number, five of which contained the trimmings, and the trunks and boxes. About the 8th July 1871, all the ten cases were entered for payment of ad valorem duty at the Sydney Custom-house, and the following declaration was made by the agent of the appellants' firm:

[PRIV. Co.

Value. Duty.

£ s. d.

30 3 6

35 13 0

3589.

42 11 5

Declared before me the 8th July 1871.

R. ADAMS.

M. MAC TAGGART, pro Collector.

At the same time, the invoice from Weintraud and Co. was shown to the collector of the customs, and was stamped by him. The five cases which contained the trimmings and trunks are those numbered 3590-3594 inclusive, and were landed by the appellants. Three out of the five were removed by the appellants; two, numbered 3592 and 3593, were examined at the Queen's warehouse on the quay. They were found to contain eight trunks and twenty-one hat boxes not mentioned in the declaration or bill of entry, and for which no ad valorem duty had been paid, such duty being payable upon them. They were seized by the Custom house officer as forfeited to the Queen under the authority of certain Statutes about to be mentioned. Afterwards, the appellants produced to the Custom house officer the invoice from Lyons and Son, and tendered duty upon the value, which was refused. They also applied for leave to amend the entry as to value, which was denied, and it is admitted the denial was lawful, and no complaint is founded upon it. The appellant took out a monition from the Vice-Admiralty Court against the seizor to proceed to adjudication on the two cases. Objections were taken to the jurisdiction of the court, and overruled. Finally, the proceedings were conducted in solemn form, by plea and proof, and the seizor brought in his libel or information, the admissibility of which was not opposed. The appellants brought in a responsive allegation, the admissibility of which was opposed; and the Judge, after hearing arguments, delivered a written sentence rejecting the allegation, and also by interlocutory decree pronounced the two cases to be forfeited to the Queen, and condemned the appellants in costs. It may be well to observe here that no objection was taken in the court below to this course of proceeding on the part of the Judge, in not only rejecting the responsive allegation, but also in adjudicating upon the whole case. It appears to have been acquiesced in by both parties, probably for the purpose of saving expense, there being no dispute as to the facts, and perhaps for the sake of facilitating an appeal. Nor has it been contended before their Lordships that the sentence was invalid on this ground. Their Lordships have, therefore, to consider both whether the responsive allegation was properly rejected, and whether the sentence on the merits was right. Substantially, indeed,

PRIV. Co.]

the two questions are one.

There are two Colonial statutes on the true construction of which this case depends: The Customs Regulation Act of 1845, and the Customs Duties Act of 1871. The first Act has the following enactment with respect to entries generally. Sects. 16 and 18:

And be it enacted, that the person entering any goods shall deliver to the collector or other proper officer a bill of the entry thereof, fairly written in words at length, expressing the name of the importer and of the ship and of the master of the ship in which the goods are imported, and of the place whence they were brought, and of the place within the port where the goods are to be unladen, and the particulars of the quantity and quality of the goods and the packages containing the same, and the marks and numbers on the packages, and two or more duplicates as the case may require of such bill, in which all sums and numbers may be expressed in figures, and the particulars contained in such bills shall be written and arranged in such form and manner, and the number of such duplicates shall be such as the collector or other principal officer or other proper person shall require, and such person shall at the same time pay down all the duties due upon the goods, and the collector or other proper officer shall thereupon grant his warrant for the unlading of such goods.

And be it enacted, that no entry nor any warrant for the landing of any goods or for the taking of any goods out of any warehouse shall be deemed valid unless the particulars of the goods and packages in such entry shall correspond with the goods and packages purporting to be the same in the report of the ship or in the certificate or other document, where any is required, by which the importation or entry of such goods is authorised, nor unless the goods shall have been properly described in such entry dy the denominations and with the characters and circumstances according to which such goods are charged with duty or may be imported, and any goods taken or delivered out of any ship or out of any warehouse by virtue of any entry or warrant not corresponding or agreeing in all such respects, or not properly describing the same, shall be deemed to be goods landed or taken without due entry thereof, and shall be forfeited.

And with respect to ad valorem duties, it is enacted by sect. 22:

And be it enacted, that in all cases where the duties imposed upon the importation of articles into the said colony are charged, not according to weight, tale, gauge, or measure, but according to the value thereof, such value shall be ascertained by the declaration of the importer of such articles, or his known agent, in manner and form following, that is to say: "I, A. B., do hereby declare that the articles mentioned in the entry and contained in the packages [here specifying the several packages and describing the several marks and numbers, as the case may be] are of the value of Witness my hand this day of A. B. The above declaration signed the day of in the presence of C. D., collector (or other principal officer);" which declaration shall be written on the bill of entry of such articles, and shall be subscribed with the hand of the importer or his known agent, in the presence of the collector or other principal officer of the Customs at the port of importation.

Then follow regulations as to the course to be pursued when the Customhouse officer does not think the articles are valued at their true price. The second Act relates to ad valorem duties only, and by sect. 8 it enacts:

In all cases in which goods shall, after the passing of this Act, continue to be chargeable with a duty ad valorem, or according to the true and real value of such goods, such value shall be verified at the time of entry by the production of the genuine invoice and by the declaration in the form hereinafter prescribed of the importer of such goods, or (with the consent of the collector or other proper officer of customs) of his authorised agent:

"Port of

"I, A. B., do hereby declare that the invoice now pronced is the genuine and only invoice of the goods men

[PRIV. CO.

tioned in the entry and contained in the packages [here specify the several packages, and describe the several marks and numbers, as the case may be], and that the value of such goods mentioned in the said invoice, and therein stated as [here state value] was to the best of my belief the fair market value of such goods at the time of shipment at the place where the same was exported. Witness my hand, this eight hundred and Declared before me

day of day of (Signed)

one thousand "A. B.

66

E. D. "Collector (or other proper officer)." And such declaration shall be made by the importer or his authorised agent as aforesaid, in the presence of the collector of customs or other proper officer, and the invoice value so declared shall, with the addition of 10l. per centum thereon, be deemed to be the value of the goods upon which duty shall be paid. And any person who shall in any such declaration make any false statement, knowing the same to be false, shall be guilty of a misdemeanor, and shall be liable and subject to the like penalties as in case of perjury.

And by sect. 13 it is enacted:

If in any invoice or entry any goods entered for ad valorem duty have been fraudulently misdescribed with intent to avoid the payment of the duty or any part of the duty on such goods, or if the oath or declaration made with regard to any such invoice or entry is wilfully false in any particular, the goods so misdescribed or in respect of which such oath or declaration is wilfully false as aforesaid shall be forfeited.

These Acts, in pari materiâ, are very loosely and carelessly drawn; but the true construction appears to their Lordships to be that the 16th and 18th sections of the former Act are not by implication (directly, they certainly are not) repealed in toto by the latter Act, the 8th section of which only so far affects the provisions in the former Act respecting entries of articles on which ad valorem duties are payable, that it supersedes the mode of ascertaining their value by a new mode of verification, namely, the production of the invoice, and another form of declaration; but otherwise it leaves the existing machinery under the former Act, respecting entries, untouched. Now it is manifest that, according to the provisions in the first Act, these two condemned cases were not properly described in the entry, on account of the omission of the trunks and boxes, that they were "goods landed without due entry," and therefore "forfeited." It has been contended that the error was in the declaration and not in the entry, and that an erroneous declaration does not enure to the forfeiture of the goods; but in their Lordships' opinion the error is in the entry; for although there appears to be no separate bill of entry, they think the document called the declaration contains in it the entry. The declaration appears, for the sake of convenience, to be written on the same paper; but although, in form, there is one instrument only, the document in substance contains both the bill of entry and the delaration, and must be treated as containing both in considering whether the provisions of the statute have been complied with. It has also been contended that, at any rate, the confiscation of the whole of the packages, including the trimmings and goods of that kind, was wrong, inasmuch as the entry of them was not incorrect, and that the wrong entry or non-entry of the trunks and boxes cannot contaminate the other goods, and the forfeiture ought to have been confined to the trunks and boxes. Their Lordships are of a different opinion. They think that under the bill of entry must be included every package that was landed; and that, although a bill of entry may contain more than one "entry" within the meaning

of the Act, no entry can cover less than one entire package. The Custom house officer does not open the package and every package, must correspond with the mark or number in the manifest of the master. Their Lordships have considered a former decision of this court in the case of Graham v. Pocock (7 Moore's Privy Council Reports, N. S., p. 164), in which the circumstances were the converse of those in the present case; and they conceive this ruling to be in accordance with the principle laid down in that judgment. There yet remains to be considered the argument arising upon the pleadings in this case. It is contended that the libel did not sufficiently or distinctly allege the law under which the goods are to be forfeited; that it, in fact, laid no charge under the Act of 1845, but simply one of fraudulent misdescription and wilfully false declaration under the 13th section of the second Act; that the judge of the court below acquitted the appellants of these charges, and that they are now abandoned, but that if they are not abandoned the responsive allegation being exclusively directed to rebutting these charges, ought to have been admitted to proof. In the first place it seems clear that this objection was not set up in the court below, but that the whole question and the construction of both statutes were fully discussed by both parties. In the next place their Lordships are of opinion that this objection is otherwise not maintainable. It is, indeed, unfortunately true that the libel is very ill drawn, and is much wanting in perspicuity and precision; and it would have been competent to the appellants to have objected to its admissibility, and caused it to be reformed on these grounds, but they did not take this course. In the libel, however, both statutes are mentioned, and facts and charges are alleged in a manner to support a case under both statutes or either. It may also be observed that the Crown could scarcely have intended to rely on the latter statute only; the charge of fraudulent misdescription and wilful falsity is not laid in the libel as it should have been if it was intended to rely upon these charges as a ground of forfeiture, under the 13th section of the Second Act. Upon the whole, their Lordships are of opinion that the judgment of the court below ought not to be disturbed, and they will humbly advise Her Majesty that it ought to be affirmed, and that the respondents are entitled to the costs of this appeal.

Solicitors for the appellants, Parker and Clarke. Proctor for the respondent, The Queen's Proctor, (F. H. Dyke.)

[CHAN.

section of the Law of Judgments Amendment Act (27 & 28 Vict. c. 112), but as such interests cannot be extended by the sheriff, they are not bound by a judgment unless the judgment creditor obtains an order of the Court of Chancery, which is equivalent to a delivery in execution within the meaning of the 1st section.

A judgment creditor sued out an elegit against his debtor, and the sheriff returned nil, the debtor's only interest in land being an equity of redemption. Soon afterwards the debtor became bankrupt. The creditor then filed a bill, praying for a declaration that he had a charge on the equity of redemption in the land:

Held (affirming the decision of Malins V.C.) that the creditor had no charge as against the trustee in the bankruptcy.

THIS was an appeal from a decision of Malins,

V.C.

The hearing in the court below is reported in 29 L. T. Rep. N.S. 385, where the facts of the cise are sufficiently stated.

66

The Vice-Chancellor having allowed the demurrer, the plaintiff appealed from his decision. Glasse, Q.C. and Townsend for the appellant.The 1st section of the 27 & 28 Vict. c. 112, provides that no judgment, statute, or recognisance to be entered up after the passing of this Act shall affect any land (of whatever tenure) until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment, statute, or recognisance." The words " actually delivered in execution" must in some cases mean something less than corporeal delivery, for incorporeal hereditaments can be taken in execution. The 13th section of 1 & 2 Vict. c. 110, made judg ments a charge on equities of redemption, and the Legislature cannot have intended in the statute 27 & 28 Vict. c. 112, to repeal that provision by a sidewind, by directing the creditor to do what is impossible. The 5th section of the 27 & 28 Vict. c. 112, provides that if it shall appear on making certain inquiries "that any other debt due on any judgment, statute, or recognisance, is a charge on any such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) shall be served with notice of the said order for sale, and shall, after such service, be bound thereby, and shall be at liberty to attend the proceedings under the same, and to have the benefit thereof; and the proceeds of such sale shall be distributed among the persons who may be found entitled thereto, according to their respective priorities." If the contention on the other side were correct, there could not be any "subsequent" charges, for there can be only one elegit on the same land. They cited

Seton on Decrees, 3rd edit., p. 456;

Re the Cowbridge Railway Company, 18 L. T. Rep.
N. S. 102; L. Rep. 5 Eq. 413;

Guest v. The Cowbridge Railway Company, 18 L. T.
Rep. N. S. 871; L. Rep. 6 Eq. 619;

Mildred v. Austin, 20 L. T. Rep. N. S. 939; L. Rep.
8 Eq. 220;

Thornton v. Finch, 4 Giff. 515;

Earl of Cork v. Russell, 26 L. T. Rep. N. S. 230;
L. Rep. 13 Eq. 210;

Re The Duke of Newcastle, 21 L. T. Rep. N. S. 308;
L. Rep. 8 Eq. 700.

Pearson, Q.C. and Whitehorne, for the respondent.. -The statute 27 & 29 Vict. c. 112, includes all

interests in land, for the 2nd section of the Act defines "land" as including "all hereditaments, corporeal or incorporeal, or any interest therein.' The first section of the Act shows that a writ of elegit is not the only means by which land can be actually delivered in execution, for the words are delivered in execution, "by virtue of a writ of elegit or other lawful authority." A decree of the Court of the Chancery would in this case have been equivalent to a delivery of the land within the meaning of the section, but as the appeallnt did not come to this court before the bankruptcy, he has not complied with the provisions of the statute, and is deprived of his charge. They cited

Smith v. Hurst, 10 Hare 30;

Beavan v. Earl of Oxford, 6 De G. & G. M. 492; Glasse, Q.C. in reply, referred to

Johnson v. Burgess, 28 L. T. Rep. N. S. 188; L. Rep. 15 Eq. 398.

Re Bailey's Trusts, 20 L. T. Rep. N. S. 168.

The LORD CHANCELLOR (Selborne) said: We think that the decision of the Vice-Chancellor, by which he allowed the demurrer, was quite right. The preamble of the stat. 27 & 28 Vict. c. 112 expressly recites that "it is desirable to assimilate the law affecting freehold, copy hold, and leasehold estates to that affecting purely personal estates in respect of future judgments, statutes and recognisances. That shows the object of the statute, which was founded upon a large public policy, and the object of the statute would be defeated if a narrow construction were put upon it, the intention being to assimilate real estates to purely personal estates with respect to the law of judgments, and that law being that purely personal estates are not bound by a judgment unless they have been actually delivered in execution. It was suggested on behalf of the appellant that so great a change, which would deprive a judgment creditor of the rights over equitable interests in real estate given to him by the stat. 1 & 2 Vict. c. 110, would not have been made by the Legislature without express words. But the 27 & 28 Vict. c. 112 only applies to judgments entered up after the passing of the Act; and though it would, in my opinion, have been a retrograde movement if the effect of the statute had been to deprive a judgment creditor of all means of following his debtor's lands without driving him to bankruptcy, yet if the Legislature had thought fit to do so, we should be bound by the language of the Legislature. But do the words of the Act bear that construction? The words of the 1st section of the Act are of the widest possible description. It provides that "no judgment, statute, or recognisance to be entered up after the passing of this Act shall affect any land (of whatever tenure) until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority." It seems to me that there is nothing in the Act to justify a narrow construction, confining it to land capable of being delivered in execution at law. The 2nd section of the Act provides that the term "land" shall be taken to include "all hereditaments, corporeal or incorporeal, or any interest therein," the word "incorporeal" including some things which could not have been delivered in execution at all under the old law, and were first brought into the power of judgment creditors by the 11th section of the 1 & 2 Vict. c. 110, and the words "or any interest therein " clearly

[CHAN.

including equitable interests. It is said that an equity of redemption in land, not being capable of being actually delivered in execution by the sheriff, cannot have been intended to be bound. But that would be a very arbitrary construction, and would defeat the object of the Act as recited in the preamble, and would be a narrow construction of the general words of the enacting clause. It was argued that the words "actually delivered in execution show that the Legislature must have meant things which in their nature were capable of being delivered. There is, no doubt, some force in that argument, and if there were no other means by which interests in land could be delivered in execution except by the sheriff, one might have expected to find some mode indicated by which execution creditors could get at such interests. Even in that case, however, we should have been bound to give the natural construction to the words of the Act. But it does not appear to me that all rights of judgment creditors over equitable interests in land should be taken away they are, no doubt, only affected so far as they are dealt with by the express words of the Act. In Re The Cowbridge Railway Company (18 L. T. Rep. N. S. 183; L. Rep. 5 Eq. 416) Lord Hatherley, then Vice-Chancellor, said: "It could not have been intended that all the remedies given by 1 & 2 Vict. c. 110, should be swept away by a sidewind." I agree in that observation, especially as it is confirmed by reference to the prior enactment. The statute 1 & 2 Vict. c. 110, largely extended the rights of judgment creditors, first, by enacting that all the lands of the debtor should be subject to judgment debts, and, secondly, by giving equitable remedies in respect of judgments, and by making judgments binding upon all kinds of hereditaments without distinction. It appears to me not only the sound, but the necessary construction of the stat. 27 & 28 Vict. c. 112, that it leaves untouched all the rights given by the earlier Act, except so far as it expressly takes them away. The 1st section of the later Act is to be read as if it had referred in express terms to the stat. 1 & 2 Vict.c. 110 and provided that lands should not be specifically bound by judgments by virtue of the 13th section of that Act, until the lands had been actually delivered in execution. But the inchoate right of the judgment creditor to a charge upon the land under the previous Act would still remain, and would be sufficient foundation for a suit in equity for the purpose of perfecting the inchoate right. It was decided in Thornton v. Finch (4 Giff. 515) that although the land could not be specifically bound under the Act until actually delivered in execution, yet the inchoate right under the 1 & 2 Vict. c. 110 might be made the foundation of a suit in equity to remove the legal difficulty, and to make it a perfect charge. Although perhaps the statute is not worded with such clearness as is desirable in an Act of Parliament, yet on the face of the first section of it we have that which shows that the ordinary legal process was not the only means of obtaining delivery of the land, for the words of the section are "delivered in execution by virtue of a writ of elegit or other lawful authority." I see nothing to confine those words to a sequestration, as was suggested in argument. They seem to point to such a delivery as the subject matter is capable of, and it appears to me that that would be sufficient to satisfy the language of the statute. In any case in which before the statute the judgment creditor