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![handle is hein.slavery/ssactsengr0474 and id is 1 raw text is: 1 HAGG. 108. THE DUNDEE 39
Geo. III, c. 19. These statutes are in apparent contradiction, if both are existing in
full operation. The practice of the Custom House at Halifax has varied, as it
regards this latter statute. At first they admitted goods from the United States,
without enquiring whether British property or not. Upon further advisement,
they enacted from the importer an oath, that no alien had any interest in the goods
so imported. Complaint was made by the merchants to the Government here;
and, upon the concurrent opinions of the law officers of the Crown, an order was given
to discontinue the practice. Of course the Americans imported freely ; but the
Custom House there went further in its relaxation, for it permitted not only the
importation, but the exportation also, grounding itself, I presume, upon the fact,
that the clauses in the 58 Geo. III respecting importation and exportation were pre-
cisely the same, and that if one was permitted, the other was also permitted in the
same extent. Accordingly this very ship was cleared out at Halifax for Newfound-
land without scruple; although, in a case immediately following, it appears that
they refused to permit the exportation to Newfoundland, unless the property was
sworn to be not American. It must be admitted, that the identity of the two clauses
in point of terms cannot be disputed. But is the Prohibition Act respecting
importation at Newfoundland repealed ? For if [108] not, whatever might be
said of clearances to other possessions of His Majesty, the clearance to that port is
unlawful ; no permission of the governor existed, and if it did, it could not license
this importation.
The present question respecting Millidge's restitution will essentially depend
upon this, whether the prohibition of importation to Newfoundland is taken' away
by this latter Act. A very few words inserted in it would easily have ascertained
the meaning in the view that I take of this question. I say nothing of clearances
to other colonies where no such prohibition exists. It rather strikes me as difficult
to maintain, that if no such prohibition exists in the port ad quem, it is prohibited in
the port a quo. The importation there, and the exportation thence, are put upon
the same footing ; the one is a literal transcript of the other, and I do not feel myself
authorised to give them a totally different meaning. The Crown, acting upon the
advice of its law officers, has given an authoritative meaning to the first, and that I
incline to think must be attributable to the other. But I do not decide that point,
nor how far it may be advisable, if considerations of public policy or commerce,
into which I do not enter, should so render it, to remove any ambiguity on that
matter-a matter certainly of no small extent. At present I am only called upon
to say, whether this importation into Newfoundland is illegal; and I am of opinion,
that unless it can be maintained that the 28 Gceo. III is in effect repealed by the 58
Geo. III, that property must stand condemned.*
[109] DUNDEE -(Holmes). January 28, 1823.-The fishinq stores of a vessel
engaged in the Greenland fisheries held liable to contribute in compensation
for damage done to another British ship ; such stores being considered appurten-
ances within the meaning of the 53 Q. III, c. 159, notwithstanding that the first
clause of the Act mentions only ship and freight.
[For further proceedings, see 2 Hagg. 137. Discussed, The Girolamo, 1834, 3
Hagg. 188; The John Dunn, 1840, 1 W. Rob. 159. Adopted, The Milan,
1861, Lush. 399. Referred to, The Wild Ranger,.1862, Lush. 564. Adopted,
The Leon, 1881, 6 P. D. 151. Discussed, Stoomvaart Maatschappy Nederland
v. Peninsular and Oriental Steam Navigation Company, 1882, 7 A. C. 811 ; The
Dictator, [1892] P. 313.]
This ship, of which Mr. Gale was the sole owner, being bound on a voyage to
the Greenland fisheries, sailed from the port of London on the 7th of March 1820 ;
and on the 9th of the same month, as she was going down the River Thames, she
came in collision with a Berwick smack, the Princess Ch4rlotte : the smack
almost immediately sunk, and, with the whole of her cargo and fishing apparatus,
was lost. The Dundee lost her bowsprit, and being otherwise damaged, she put
* This was ultimately decreed, with £40 nom. exp. to the successful appellant,
p. 102. The 28 GCeo. III, c. 6 and 58 Geo. III, c. 19 are repealed by 3 G. IV, c. 44.-See
also the consolidation of the navigation laws in 3 G. IV, cc. 42, 44, 45 and 6 G. IV, c.
109, and the able treatise of Mr. Holt, 2d edition, p. 1, c. 1.](ViewImageLocal?handle=hein.slavery/ssactsengr0474&div=1&collection=&method=preview&ext=.png&size=3)