16 & 17 VIC. cap. 107. 263. In all suits or proceedings at the suit of the crown for British stat. the recovery of any duty or penalty, or the enforcement of any forfeiture under this or any act relating to the customs, the parties thereto shall be entitled to recover costs against each tion, penal- other in the same manner as if such suits or proceedings 1853. Jurisdic ties, and forfeitures, how to be sued for. Proviso. duties and penalties sought to be recovered shall not exceed were conducted and had between subject and subject, and the like amendments may be made in all such proceedings by the judge or court as may now be made in civil actions; and all duties, penalties, and forfeitures incurred under, or imposed by, this act or any other act relating to the customs and the liability to forfeiture of any goods seized under the authority thereof, shall and may, except as is hereinafter provided, be sued for, prosecuted, determined, and recovered by action of debt, information, or other appropriate proceeding in the superior courts of common law, at Westminster, Dublin, or Edinburgh, or in the royal courts of the islands of Guernsey, Jersey, Alderney, Sark, or Man, in the name of the attornies-general for England or Ireland respectively, or of the lord advocate of Scotland, or of some officer of customs or excise, and for the recovery or enforcement of any penalty or forfeiture, by information in the name of some officer of customs or excise, before one or more justice or justices in the United Kingdom, or before any governor, deputy governor, or deemster, or other magistrate, in the Isle of Man and the Channel islands: Provided always, That Where the where any goods shall have been seized in the United Kingdom, with regard to which the amount of duties or penalties claimed by the crown shall not exceed the sum of £100, such seizure or penalties shall not be sued for or enforced in any of the said superior courts, but by information before any one or more justice or justices, governor, deputy governor, deemster, or other magistrate as aforesaid, or by information, suit, or other appropriate proceeding in the county courts if in England, the assistant barristers' courts if in Ireland, and the sheriffs' courts if in Scotland, for which purposes the said courts respectively shall have jurisdiction in such cases to the extent of £100, with power to enforce Where suits or mitigate any penalty sought to be recovered unless upon confor recovery sideration of the facts and circumstances of, or the questions of and penal law involved in any case so excepted from the jurisdiction of not exceed the superior courts of common law, it shall appear to the commissioners of customs desirable that such case should be tried in a superior court, in which case the said commissioners shall certify their opinion that it is a proper case to be tried in the said superior courts to the commissioners of the treasury, who may thereupon make and issue an order to the said commissioners of customs authorizing them to bring such case in such superior court, and the purport of such order shall be endorsed on any process to be issued out of such court in such case at the suit or prosecution of the crown in the words following:-" By order of the commissioners of her majesty's treasury, this case appearing to them to be a fit case to be tried in her majesty's £100. of duties ties, though ing £100, be pro may secuted before a superior tribunal. court of exchequer," and the same shall confer jurisdiction on 16 & 17 Vic. such superior courts to try such case. c. 107. British stat 1853. option of insti courts, sum claimed ties does not £100. 264. It shall be optional for the defendant in any case, except Proceedings as hereinafter provided, where the amount of duties or penalties at the claimed by the crown shall not exceed the sum of £100, to require defendant to that instead of proceeding against him on account thereof by bated in information before any justice or justices as aforesaid, the pro- superior ceedings shall be brought in a superior court of law, and upon though the the requests in writing of such defendant, delivered to the officer cam by whom the goods shall have been seized, or to the solicitor of and penalcustoms, such proceedings may be instituted in a superior court, exceed for which purpose, on notice by the defendant to the justice or justices if proceedings have been already commenced before them, such justice or justices shall adjourn the case for one week to afford the defendant an opportunity of delivering such request; and in order to confer jurisdiction on such superior court it shall be sufficient to state such request on the back of any process to be issued in such case, in the words following,"On the requisition of defendant, who prefers a trial by one of her majesty's superior courts of law to a trial before justices," and such endorsement on the process, signed by the solicitor of customs, shall be evidence to the court of the same, notwithstanding the provisions hereinbefore contained: Provided, That in any case where proceedings shall have been already commenced before any justice or justices, and the defendant shall be under bail or recognizance to appear before such justice or justices, or in custody for default of such bail, such proceedings shall not be removed, but such justice or justices shall hear and determine the case. 66 jurisdiction where the sumis shall exceed 265. If any suit or prosecution for the recovery or enforce- Justices ment of any penalty or forfeiture, in which the amount of in consent duties or penalties claimed by the crown shall exceed the sum of £100, shall have been commenced in any of the said superior claimed courts, the commissioners of customs, at their discretion, may, £100. on the defendant's request in writing to the solicitor of customs, order such suit or prosecution to be brought by information before any justice or justices, whereupon such suit or prosecution in such superior court shall cease, and on the production of an order of any two or more commissioners of customs directing the bringing such proceeding before any justice or justices, they shall receive such information, and in due course proceed to hear and determine the same. joint and be sued for 267. When by any act relating to the customs a penalty Penalties jointly and severally incurred by any number of persons, such several may persons may be proceeded against jointly by one information, or by joint and severally by separate informations, as her majesty's attornies several ingeneral for England and Ireland, and as the lord advocate of formation. c 107. 1853. 16 & 17 Vic. Scotland, or the commissioners of customs, may deem expedient; British stat. and in case of a proceeding against such several persons by joint information for recovery of the penalty or penalties so severally incurred by each, the penalty or penalties shall be recoverable against each, notwithstanding that any one or other of such persons so jointly proceeded against may have allowed judgment to go by confession or default, or that the penalty adjudged to be paid by any one or other of the defendants so jointly sued may be for a different amount from that of the penalty in which any one or other of such several persons may be convicted, or that any one or other of such several persons so jointly prosecuted may be acquitted, and no judgment on any such information shall be reversed or avoided, or error in law alleged therein, on the ground of any such judgment being obtained by confession or default of any of the persons, nor on account of any difference in the amount of the penalty or penalties in which any one or more of such persons may be convicted, or the acquittal of any such persons; but every such judgment shall be valid and effectual against any or all of the said several persons so jointly proceeded against, and for the full amount of the penalty or penalties in which such person or persons have been severally or respectively convicted. Procedure for penalties. 293. All suits, prosecutions, or informations for recovery of penalties under this or any act relating to the customs in any of her majesty's courts of record at Westminster, Dublin, or Edinburgh may be commenced either by writ of subpoena or capias as the first process at the election of the commissioners of customs, in which shall be specified the amount of the penalty or penalties sued for, and if by capias the person against whom such capias shall issue shall be bound with two sufficient sureties to whom such capias shall be directed to appear in the court out of which such capias shall issue at the day of the return of such writ to answer such information, and shall likeLegal pro- wise, at the time of such appearing, be bound to her majesty, her generally. heirs and successors, with two sufficient sureties, or, by leave of the court or a judge, more than two, to be acknowledged in the same court, to answer and pay all the penalties so sued for, or such other sum, not exceeding the penalty or penalties sought to be recovered, as the commissioners of customs, or the judge upon whose fiat such capius shall issue, may see fit, in case such person shall be convicted thereof, or to yield the body of such person to prison, and in default of being bound by such respective sureties the person against whom such capias shall issue shall be taken to prison. ceedings Service of subpœna. 294. In any case where the commissioners shall waive the right of issuing writ of capias, and elect to proceed by subpœna, service of a copy of such subpoena, either on the defendant personally or by leaving the same at his last known place of abode, 16 & 17 VIC. c. 107. or on board any ship or vessel to which such defendant may belong or have lately belonged, shall be deemed to be suffi- British stat. ciently served. 1853. persons in appear, and formation 295. Any person arrested under such capias and imprisoned Judgment for want of sufficient bail shall be served with a copy of the by default if information filed against him either personally or by delivery of gaol do not a true copy thereof to the gaoler, keeper, or turnkey of the plead to inprison in which such person shall have been confined; and in served. default of such person's appearing or pleading to such information for the space of twenty days, to be computed from the date of such service, judgment shall be entered by default; and in case judgment shall be obtained against any such person by default, verdict, or otherwise, and such person shall not pay the sum recovered against him, execution shall thereupon issue, not only against the body of the person so imprisoned as aforesaid, but against all the real and personal estate of such person, or any other person in trust for him, for such sum or sums of money so as aforesaid recovered against him, together with the costs, poundage, fees and expenses of execution over and above. the sum recovered. sheriff of without re 296. Every such execution may be directed in the first Execution instance to the sheriff of any county or county of a city or other may issue to shrievalty as the party suing out the same may think fit, without any county reference to the county in which the venue is laid, and without ference to any suggestion of the issuing of any prior writ of execution into county such county. where venue laid. ished per sue in formå pauperis. 297. Where any person so arrested and imprisoned as afore- Impoversaid by virtue of any writ of capias shall be disabled by poverty sons may from making defence to any such information, it shall be competent for such person to petition the court on affidavit verifying such disability; and the court on being satisfied of the truth of the facts alleged in such affidavit may assign counsel and attorney to such person, and the counsel and attorney so assigned are hereby required to act for such person without fee. special writ of dorsed by solicitor of 298. Every sheriff, mayor, bailiff, or other person accus- Sheriff tomed to execute the process of the courts, and every under to grant sheriff, deputy, or agent of such sheriff, mayor, or bailiff, is warrant on hereby required (on the request of the solicitor or assistant capias ensolicitor of customs, or of any person acting on his behalf, such request to be endorsed on the back of any writ of capias or customs. other process issuing as aforesaid, and signed by such solicitor or by such other person stating his authority,) to grant a special warrant to such persons as shall be named to them by such solicitor or other person for apprehending the person against whom such process shall issue, or in default thereof every such sheriff, mayor, bailiff, under bailiff, and other person shall be N c. 107. 16 & 17 Vic. liable to such process of contempt, fines, and penalties as they British stat. or any of them are now by any law or custom liable to in case of refusing to execute similar process where the defendants might have been taken thereupon in the usual course of proceeding. 1853. Sheriff indemnified warrant 299. Every sheriff, mayor, bailiff, under sheriff, and other for escape if person granting such special warrant shall be indemnified from granted at all liability for the escape of any person who shall be arrested request of by virtue of such warrant, which escape shall happen from the time of taking such person, until he shall be committed to the proper prison, or be tendered to the gaoler or keeper of such prison, who is hereby required to receive every person so arrested as aforesaid, and give a receipt for his body. Gaoler to receive offender. When offenders are give bail to the bail bond to be her majesty. 300. If any person shall be arrested under or by virtue of arrested and any writ of capias ad respondendum, and the sheriff or other the sheriff, officer shall take bail from such person, such sheriff or other officer, at the request and costs of the prosecutor, shall assign to assigned to the queen's majesty, her heirs and successors, the bail bond taken from such person, by endorsing and attesting the same under his hand and seal in the presence of two or more credible witnesses which may be done without any stamp, provided the assignment so endorsed be duly stamped before any suit be commenced thereupon, and if such bail bond be forfeited such process shall thereupon issue as on bonds originally made to the queen's majesty, her heirs and successors. 16 & 17 VIC. c. 131. 16 and 17 VIC. c. 131.] To amend various laws relating to British stat. merchant shipping. (a) BRIT. [20th August, 1853.] 1853. Mode of procedure in criminal this act. 16 and 17 Vic. c. 131, sec. 2.] This act may be cited as "The merchant shipping law amendment act, 1853." 53. All criminal proceedings under this act shall be carried on in the same manner as similar proceedings under the "Mercases under cantile marine act, 1850," [13 and 14 Vic. c. 93]; and all rules of law, practice and evidence, which are applicable to such lastmentioned proceedings, shall be applicable to criminal proceedings under this act. (a) If the protection of seamen and of persons not having residence in Scotland be intended by this act, the sections 54 to 68 inclusive as to Scotland, especially sec. 61, which authorises proceedings before sheriff or justices to be conducted virá roce, without evidence in writing or record of proceedings, and sec. 67, which bars review, seem to require revision (expurgation), because repugnant to the treaty of union, to the maritime code of the empire, to equity, and to international law. (Vide SUMMARY PROCEEDINGS. Post.) |