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1812.

LESTER's Case.

such accounts, and they are required to signify their
approbation of them under their hands, and then to sign
and arrest as directed by the former act. This provision,
therefore, is perfectly consistent with the provision in
the former act.
Per Curiam,

Rule refused.

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THI

tled to take the

drawback upon

The shij per of WHIS came on upon a rule for a mandamus to the
beer, on which
the duty has defendant, collector of the excise for the port of
been paid,
which is shipped Liverpool, to administer to David Paton the oath touch-
for les portation ing the exportation of beer, mentioned in the stat.
Indies, is enti. 38 G. 3. c. 54. s. 4., and thereupon to allow or repay
oath appointed the excise duty on five barrels of strong beer exported
by 38 G. 3. c.
54. 3. 4. in order in the ship Irlam, George Kenzar, master. This appli-
to ubtain a cation was made on behalf of Gladstone and Paton,
such beer, with brewers, at Liverpool, the shippers of the beer, on
out being sub-
ject to any de- which the duty had been before paid, and which was
such drawback, shipped for exportation to Barbadoes. The objection
in respect of the made was that the whole quantity of beer shipped on
quantity of beer
to be charged board the Irlam was no more than adequate to the con-
ling-bill of the sumption of the crew during the voyage. There was
master, for the

some doubt upon the affidavits whether this beer had
consumption of
the voyage,

not been sold by the shippers to Kenzar, the master of drawback is the Irlam; but as this was denied on the part of those allowed; and therefore the

who applied, and as the excise officers were desirous Court granted of having the opinion of the Court upon the general a mandamus to the collector of question, it was agreed to take the fact, as sworn to on the excise to administer the part of Gladstone and Paton, that they had shipped such oath. the beer for exportation and foreign consumption, on

account

in the victual

on which no

1812.

The KING against Cookson.

account of Barton, Irlam, and Higginson, merchants in Liverpool. The general question raised was, whether the officers of excise were warranted in refusing the drawback of the duty, to any general shippers of beer on board a certain ship, until a sufficient quantity had been shipped by the master for the consumption of the voyage, on which no drawback was allowed, or until the master should have paid the duty on such quantity. This question had not before occurred in the port of Liverpool; but it appeared from the affidavits of several of the excise officers in the port of London, that it had always been the invariable practice there upon making out debentures for the drawback on strong-beer exported, to deduct from the total quantity of strongbeer shipped in any ship going from the port of London to the West Indies, to be exported as merchandise, a certain quantity of the said beer for the stores of, the ship, to be spent on the voyage, unless a sufficient quantity, (which was estimated in proportion to the number of persons on board,) was shipped as stores ; and to make out the debenture for the drawback only upon the residue, apportioning it amongst the different shippers. This practice appeared to have originated with a view to obviate fraud in the master shipping his beer, as merchandise for exportation and foreign consumption, in order to get the drawback, and afterwards using it as sea-stores.

Abbott shewed cause, and in support of the practice above stated, referred to 1 G. 3. c. 7. s. 5., which allows a drawback on beer shipped for exportation; but to prevent fraud, the seventh section provides that the master of every vessel shall be charged in his victualling

1812.

The KING

against COOKSON.

bill with so much beer as the number of men used to spend in the voyage; the excise whereof is to be recovered according to the laws and rules already established. Now the laws and rules already established, can only refer to the practice above stated, the existence of which has been traced to a period long before the date of this act; these words therefore are confirmatory of the practice, and as it is a convenient one for preventing fraud, that the party may not obtain the drawback as for beer to be exported, and then dispose of it to the master for the use of the ship's company, the Court will be disposed to sanction it. This will be effected by construing the enactment, requiring the master to be charged in his victualling bill with so much beer, &c. to mean that so much beer shall at all events be placed to his account out of the whole quantity shipped.

Scarlett, in support of the rule, referred to the 12 Car. 2. c. 24. (a), which imposes a duty on beer, to be paid by the common brewer or seller; and to the 1 W. & M. c. 22., which allows a drawback on beer shipped for exportation, to be consumed beyond the seas; and contended that all fraud was obviated by the second section of that act, which charges the master with so much beer as the number of men used to spend, and by the 38 G. 3. c. 54. s. 4., which imposes a form of oath on the exporter, that no part of the beer is exported for the ship's use.

Lord ELLENBOROUGH, C. J. This beer has been shipped for exportation, and therefore is within the terms of

(a) Sect. 15, 16, 17.

the

1812.

The KING

against COOKSON.

the act. It is said, however, that the officers find a difficulty in charging the master with the duty; but they must recover from the master what they are entitled to recover, and cannot, in order to obviate this difficulty, take the beer of one person to pay the duty of another. Does not the right to the drawback attach on shipping the beer on board? and if the master afterwards use it on board, that cannot divest the right of the shipper to the drawback. It would require an express provision to make him liable for the duty. It appears to me that the practice applies solely to the beer shipped by the captain, but does not apply to a distinct quantity shipped by a general shipper. I cannot see why the officers should not charge the master, in the victualling-bill, with so much duty as he is likely to consume of the beer shipped by others.

BAYLEY, J. The officers may prevent the master from clearing out unless he pays all the duties that he is bound to pay. The construction now put on the act is, that no person is entitled to the drawback on beer shipped for exportation, until the duty is paid by the master upon a quantity equal to the supposed consumption of the crew on board. Per Curiam,

Rule absolute.

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1812

Wednesday,
Nov. 25th.

The King against The Inhabitants of AMBLE

SIDE

it.

is rateable to the poor, not a rate for the relief of the poor of the township of withstanding it has never been Ambleside, in the county of Westmoreland. The notice of rated in the parish, unless appeal given by the appellant was addressed to the there be some churchwardens and overseers of the said township, and circumstances to take it out to William Wilcock and others, upon all of whom it of the general rule; but on

was also served, and contained the following objection appeal against to the rate, viz. “Because the said William Wilcock a rate on the ground that A. and the other persons therein named were not then is not rated for his stock in assessed or rated for or in respect of his and their trade, the ses. sions ought to

stocks in trade.” Ambleside is a township having its amend the rate, own overseers and maintaining its own poor. In May and not quash

1812 a rate was made for the relief of the poor there, intitled “ An assessment or rate for the necessary relief of the poor belonging to the township of Ambleside, made and assessed the 14th day of May 1812, being the first rate at sixpence in the pound, according to a late valuation for the present year ;” and was duly allowed and published. This rate was made upon the different persons named therein, amongst whom was the appellant, in respect of their real property only, and no stock in trade or other personal property was included in the rate. Upon the trial of the appeal it was admitted that William Wilcock, in the notice of appeal mentioned, had stock in trade, which was visible personal property within the said township producing profit, and that no assessment was made upon him in the said rate in respect thereof; but no stock in trade or other personal property had ever been rated within the township. The sessions thereupon

quashed

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