family, had no right to succeed. We do not, therefore, feel ourselves much pressed with the arguments founded upon Article 756. The main stress of the Appellant's argument, however, rested upon the 759th Article of the Code, and upon the interpretation put upon it in the case of Billard v. Billard, and upon the opinions of the great majority of the Commentators upon the Code in conformity with that decision. This Article is in these terms: 759. "En cas de prédécès de l'enfant naturel, ses enfants ou descendants peuvent réclamer les droits fixés par les Articles précédents.” [L. 4. ff. Undé cognati.] Looking to the decision in Billard v. Billard, and to the opinions of the Commentators to which we have referred, it would not, we think, be right for us to suggest any doubt upon the meaning of the word "descendants" in that Article. We think that the word, as used in that Article, must be taken to mean "descendants légitimes," and that natural children could not claim the benefits given by this Article. The argument founded upon this Article is therefore well deserving of consideration; and perhaps it might be held to decide this case if this Article and Article 766 had reference to the same subject and to the same state of circumstances. But not only do these Articles constitute distinct laws, but they refer to wholly different states of circumstances. The one refers to the property which natural children have taken from their parents; the other, to the property of the natural children themselves not derived from their parents. The one deals only with the substitution of the children or descendants of pre-deceased natural children for the natural children themselves, it refers, as we understand it, to property which has never come to the natural children themselves, and involves, therefore, no other question than this: Whether the children or descendants taking by substitution are to be legitimate children or descendants only? The other extends to the disposition, and, as it seems to us, to the complete disposition of the property of the natural children themselves, and gives it to their natural brothers and sisters, “ou á leurs descendants," thus providing for what has not, so far as we can see, been before provided for-the devolution of the property of natural children dying without legitimate or illegitimate descen J. C. 1866 HER MAJESTY'S PROCUREUR V. BRUNEAU. J. C. 1866 HER MAJESTY'S PROCUREUR v. BRUNEAU. dants. These circumstances are, we think, sufficient to prevent the construction of the word "descendants" in the latter of these Articles being governed by the construction which has been put upon it in the former of them. The provisions of the Chapter on Representation were also referred to on the part of the Appellant in support of the argument upon the 759th Article; but what we have already said upon the principal argument meets this argument also. It was further attempted on the part of the Appellant to draw some argument from the 767th and 768th Articles of the Code, but these Articles do not seem to us to refer to irregular successions. They refer, as we think, to the regular order of succession, taking it up after the failure both of legitimate and illegitimate children, and after the exhaustion of the rules applicable to succession in such cases. Another argument, which was much relied upon on the part of the Appellant, was, that the construction contended for on his part would render the whole Code uniform and consistent; whereas the construction on which the decision appealed from proceeds, would, as it was said, render the different parts of the Code conflicting and inconsistent. But this argument in favour of uniformity is, we think, entitled to but little, if any weight, when it is attempted to be applied to different parts of the Code having reference to wholly different states of circumstances, more especially having regard to the rules of construction to which we have referred. Even upon the construction contended for by the Appellant, the Code would be by no means uniform in its effect; for, supposing legitimate children only to take under the 766th Article (which is what the Appellant contends for), they would not take in the same manner or to the same extent as they would take under the other Articles. They would, as it seems to us, take under the 766th Article only property not received by the natural brother or sister from his parents. The property received from the parents would be subject to the droit de retour. The difficulties which would arise upon the construction which the Courts of the Island have adopted were also much relied upon on the part of the Appellant. We are by no means unaware of these difficulties. If there be legitimate children, the illegitimate children may take nothing, or they may take equally with the legitimate children, or they may take the portions prescribed for them by Article 757. But these are not the questions before us, and we give no opinion upon them. If the natural children are descendants within the meaning of Article 766, they are not less qualified to take because in certain events they may take nothing, or may take equally with the legitimate children, or may take only a portion of the share to which they would have been entitled had they been legitimate. The true question in this case is, whether, as between them and the State, they are entitled to take; and we are of opinion that upon the true construction of the Code they are so entitled. We think so, both for the reasons we have assigned, and for the reasons which are assigned in the very able judgment of the Court in the Island, to which the following observations may be added. It is clear, from Article 723, that in the case of regular succession the State takes only after failure both of legitimate and natural children. It is equally clear that, under Article 766, the natural brothers and sisters, if surviving, would have taken, and the question, therefore, is in fact a question of succession to or substitution for a natural brother or sister. Could it have been intended that the State should be put in a better position against natural children, whose parents would have taken, by a construction to be put upon the word "descendants" confining it to legitimate children? We think that, had there been any such intention in favour of the State, it would have been clearly and definitively expressed. We admit the case to be one of great difficulty, and that the opinions of the Commentators upon the question are conflicting, and to such a degree that it can hardly be said to which side the greater weight is due; but upon the whole we think that the better reasons are in favour of the Respondent, and we agree in the judgment appealed from. We shall, therefore, humbly recommend her Majesty to dismiss this appeal, and to dismiss it with costs. Solicitors for the Appellant: Parke & Pollock. J. C. 1866 HER MAJESTY'S PROCUREUR v. BRUNEAU. VOL. I. 3 R J. C.* 1866 June 18, 19, 21. VICTOR ROLET, BEN ROBERT, AND THOMAS WILSON . AND JAP APPELLANTS; THE QUEEN AND JOHN SHAW, ACTING) COLLECTOR OF CUSTOMS FOR THE PORT OF RESPONDENTS. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF Sierra Leone Ordinances—Harbour dues-Seizure of goods and boats-Onus probandi-Condemnation—Reversal of sentence with damages and costs. Sentence of the Vice-Admiralty Court of Sierra Leone, condemning goods and boats seized for breach of the Customs Ordinances of the Colony, reversed, with damages and costs: it being proved that the vessel from which the goods were unshipped, though off the harbour of Freetown, was not within three miles (the limit of jurisdiction) from the shore at the time of the unloading, and consequently not liable to the harbour dues payable under the the Customs Ordinances. Where goods were unshipped in the immediate precincts of the harbour, the onus of proving that the vessel was not actually within the harbour, lies on the party claiming exemption from harbour dues. THE appeal in this case was brought from a decree of the Vice-Admiralty Court of Sierra Leone, whereby certain goods belonging to the Appellant, Rolet, were, with two boats belonging to the other Appellants, held forfeited to the Crown, and their respective owners condemned in costs. The goods for having been illegally unladen and unshipped from a vessel while at anchor within the harbour of Sierra Leone, contrary to the provisions of certain local Ordinances of that Colony; and the boats for having been illegally used in the removal and conveyance of such goods. The following are the sections of the Order in Council and Ordinances, referred to and relied on in the pleadings and judg-ment: By the 6th section of the Order in Council of the 13th February, 1849, it is provided :-"That no goods shall be laden,. * Present:-THE LORD JUSTICE KNIGHT BRUCE, THE LORD Justice Turner,. and SIR EDWARD VAUGHAN WILLIAMS. or water-borne to be laden, on board any ship, or unladen from any ship, in the said Colony, until due entry shall have been made of such goods, and warrant granted for the lading or unlading of the same; and the person entering any such goods shall deliver to the Collector of the Customs, or other proper officer, a bill of the entry thereof, fairly written in words at length, containing the name of the exporter or importer, and of the ship, and of the master, and of the place to or from which bound, and of the place within the port where the goods are to be laden or unladen, and the particulars of the quality and quantity of the goods, and the packages containing the same, and the marks and numbers on the packages, and setting forth whether such goods be the produce of the British possessions or not; and shall also deliver at the same time one or more duplicates of such bill, in which all sums and numbers may be expressed in figures, and the particulars to be contained in such bill of entry 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 shall require." The 21st section of the same Order in Council is as follows:“It is further ordered that all vessels, boats, carriages, and cattle made use of in the removal of any goods liable to forfeiture under this Order, or under any Act or Order relating to the customs, or to trade or navigation, shall be forfeited; and every person who shall assist or be otherwise concerned in the unshipping, landing, or removal, or in the harbouring of such goods, or to whose hands or possession the same shall knowingly come, shall forfeit the treble value thereof, or the penalty of one hundred pounds, at the election of the Officers of the customs, and the averment in any information or libel to be exhibited for the recovery of such penalty, that the Officer proceeding has elected to sue for the sum mentioned in the information or libel, shall be deemed sufficient proof of such election without any other .or further evidence of such fact." By the 4th section of the Colonial Ordinance, dated the 31st December, 1849, it is enacted, that the importer of any goods shall pay down all duties due thereon at the time of making the entry of the same, previous to the unlading thereof, directed by J. C. 1866 ROLET v. THE QUEEN. |