.. . Tudgment

(Continued from Page 1-)

8 DENY.

yofd loads; that thereupon depon-

"ln search of smuggled 500115 M1 ;uu~opening the hatches he foun her hold filled with kegs of ruin Jinqqoof which bore the proper Customs or Revenue marks; that Jlehthereupon toolfichnrge of and .l.oizod'as fonfoited the said rum '31s niwygled goods and at the same ' ized as forfeited the schoon- zlier with her rigging, etc. Cilifl-Wl her to be moored at the‘ Morita: Wharf in Charlottetown anti placed a watchman in charge of ship and cargo: that the Cue- tome Officers. having no place wherein to store the cargo, depen- ent sealed up the hatches and cab— in! of the schooner with a seal oi’ the Customs of Canada and kept thgen so sealedmid the ship and car- '- ssion until the 28th ‘ when the Sheriff '.-,!‘|i‘w‘l‘.|\ (‘lazuli went on board ‘hm will? stilt-liner and proceeded tosoxecute the said Writ of Replev- In which related to the schooner. tackle. sails. rigging and jnrniiure, but not to the cargo. wbicbwas then sealed up on hoard ‘the schooner. .~ After the execution of the Writ of Reploviu the cargo of rum was removed from the ship by the Cus- wnr. Officers. ' 'l‘.'i~- application to set aside the ' ‘i W. ltiiplevin is based upon the

f -<--~<- . . .

3-. tit l~

the issuing of the said . ml‘ the recovery of goods -‘:~r~\iu mentioned was contrary _.i-'i lilo provisions of the Customs .i~-i_ (Revised Statues of Canada. I ii-ipter 48) and amendments ‘hereto;

i1. c Fllhatgolids mentioned in the ‘said Writ of Replevin were

ectly. or by any of

heard before in: in (tjhaageraheh - the 10th da of ugua , . w l1 ‘"9 d lwarded m” “m “mono; counsel forythe Plaintiff tendered d in evidence seven several affidavits viz; the affidavit of Joseph Vatch- er of Burgeo, Newfoundland, who deposes that on the ‘ April 192T, he signed "an agree- ment of articles" (not stating with whom; as Master of the Nellie J. Banks for a period of six months and that the plaintiff is the owner. He thus in substance describes the ship's voyage: About the 21st day oi May last she cleared from the Island of Saint Pierre for the hllh scas- About 18th June she entered thc port of Burgeo. Newfoundland. for repairs and supplies rand-about 28th June she left that port. for the nigh seas, his ship's papers hsvlns first been duly stamped by the Cus- toms officials of that -port and still showing that she was cleared for the high seas from "Saint Pierre. The ship had on "board the fCaptain. a Mate. an able seamen and aonok. On the 22nd of July when-the Capt- aln and all hands were engaged in fishing codfiah at olcven lilarine miles from the near- ‘cst land. while they were still fish- ing and heading away from the land with only about halt‘ past 4, o'clock in..tho iaiternc-on. the steamer Bayifield in ‘command of John C. McCarthy -ar- rived nnd' ordered him to heave to. He states that in the process of hoarding and getting the Nellie J. ed Banks in tow shc was struck amid- ships by the Hayfield. sprung a leak and ‘was taken into Plctou. Nova Scotia, with the pumps - cou- act“ stantly going to keep! hair frgmi No sinking. and on the fol ow ng ay; -|-;ll0 was towed into Charlottetown mam “d I C.“ “M no“ m “mo” whdre she ‘has _ r The deponent further states that at a“ no time after clearing from

the foresail

since

x

' C urt offlew Brunswick by I The application came on to ‘h: ma“; thflupw “w, rem,“ m

a distance

y

./

first

- i m Mugs“ “fwatore within three Marine in lea

7th day of

of

Ill!»

remained.

~

Z The word for many do?! puthrubeen. "Are you who” ‘my annan Races?" so mm? b!"

. All ‘that ivblt is serene m 1M1 . vlcohdbet

come andbeentertliflltl 7H

' l

emphasis, a Dominion-Fishery Ofj ficer bad seized a foreign sbip for violation of trio Dominion statute, prohibiting foreign m» rwmiflIb-i ling without a. linen» 111 Blimll!

f tb fie ian oashfihe wit‘! 1'6; rilevix by-glie ollnqr lnd~ll10 311D-

191 Qqldytlldwfll of Replevln 0.11 the,grqund' that the officer not having taken the ship to the near-

or of Customs as required b1 the Act was a treepaseer ‘ab lnltio. The ship was therefore held not tube in the custody of the law and ro- ‘olevin woultllie. ‘-

It is noteworthy that on the argu- ment of McGowan v. Betta can!!!“ ’or the plaintiff said: _"We do not deny that’ roplovin will not lie . ‘ ‘ a Revenue Officer seizing goods but this ls a vary different case." Anthltitobie. C. 3., deliver- ing the leading judgment maintain-

" long as the property exists iii specie and is uncondemnod" h» would not set aside the Writ. of- Replevin- His reasoning waezthat he ship had only been seized as ,irib_le_ to forfeiture but had‘ ' not ‘It < been forfeited. She was at the ‘liilif of the execution of the (Writ Replevin still in the hands of .i. person whom hcvregardetlms s. here trespasser. ‘The "seizure was not a confiscation. A If Ibo Jud i-been conaemooirtnen his decislQb would necessarily have been against the validity of the writ. ‘ -

In the precept one the law und- er which tbeseiziire took place _-iii fundameptallfdifferent. Sec. 16f of "The Custom! Act" provides that all-such vane ,_ seized as for; felted shell (priinajaoia) be deem- siid taken" to be~ condemned without suit, information or pro- ceeding of~any kind. ln this case the seizure is's confiscation. The al property’ iaialtered- a . case "was ‘cited on ‘the argu-

e Writ of Repleigin was allowed in ir-Revenuo case. _. in a New Brunswick case decid-

willed

est port for delivery to the Cqlliwi- ‘MW .

out and one ‘added one ru

other out‘ ‘on 1a.

ere ‘up wont down other mined- tlrr ones". Tbs Anchors. 64 s run. BamnbolLgeu and scoring on Sounder’

g fiectio, ball‘ League. t_ s Anc

out by a score of 5 to 0-

Tbere was z feirlyitvod agttead ' anca of ball fans present, the wea- ther was somewhat‘ eool sud ‘the brind_ of ballisltbough good wit! ' at listless in spots. , ‘rho Anchors were playing s

IOU!

winning game from the cry-man on hletoes and coeded in being ithe first sue team to go through without an error.

‘Hoyt on the mound was twirl- lnglom ovoriip ‘fine shape a few q uttered bits gathered y the _ were nicely taken care of

by the fielders.

The Rovers were somewhat qff

color. their batting was low par and when they

safely on they were nearly si-

ways cut down on the

Both teams were right QILBGQG, it more than the Anchors - and erred, eeyoral times. three of wbiclrbrou are now on top e of play last evening it will be a bard proposit-

the Rovers feeling

a run- The Anchors and from their etyl

l the action of Replevin, said: .1011 t0 W16!!!" 111911‘ DQII

from them.

The Rovers were the first to go tobst. connecting for two hits but failed to more, the Anchors-follow-

ed lllfl filled the Ilckl

onnell got tbelut meltdown, be;

fora an Anchor crossed the‘ plate. The Rovers in the; second ‘frame

again “without. q. ,ecore

were retired the the; two getting the ii chore slid one

at first and

an‘ error and scoring in manner when D. Diamo er was fumbled. ’

‘in the fourth theifirshtwo: Qrswup again-mot. their fstihbefora 1091611111: first. two by the swine atflfirst. The Anchors 4 n. Francis drawing a free plies and getting home on a wild throw. for two etflrpt and Williamrthn mice rubnlngniaiclu-

Csnbonneil

In the fourth th efirst"

moire» avast-NT». M» men around the paths. Mcouigsa letting“ iii-pt , on

bill ground-

ai ‘first: and the ee of-- HOYTI!» hot once 151111 Add-

Jpeet eveniul at the Abe‘ eit fgrounds..tl1e Anchors I mid w the seventh game of‘ t e of the City Bele- bors wlnqins

start. ev- they_,suc- ‘Oityhea- a game

the

Away be- would set

Nth!- ‘home

tion swat!

but Carb-

the tblrtl

the. ulna

ii

-Ill| V1.

. counting

llllilv-llll

mutants”

W

"lstthsy

BIG

‘ I. ltwegs‘ Campbell . .

M. Diamond R.

’ 1

': ‘otlltfivfiiliiifill " lliirlls an 5 iilil

B1 Rims‘ Ball And Driving 011i 53“ _v Light Hiiivlliitidiiehors Jum d In fr» Second, 1* ‘hiihiiiglwbeli T116171‘ . revisits

i. ,1

‘Rovere-‘Clrbonnell and D. Dia- mond. Anchors-Hoyt and Francis-

12:4 Rovers 0 0.0 0 Anchors . 0 1 1 1 ' servants:

OFFIOIALG

only two moN games of one left. Who will

n Bill and Chick c batters.

and Saturday evenings. of this week. at six o'clock Charlot- tetown Baseball fans will be treated to two lively Baseball games between tile Abogweits and the College play- l’! i

‘both teams are looking for a time play-off it. will see the teams in

J7

0H Friday‘

NOTES

Second Section

21:00" 1111M M!!! ' iriteoeetlw to action against one another.

the go

players have been vinces and have on- fiémet one or two defeats out of six- bwoilllov- .. '1 "l"! 911394 m‘ and arerou BY NI?- The

Umpire-slack McAleer. Bases-Dr. Dougen. QoreP-Chsrles Stewart.

Score Board-Eddie Vessey. Police Officer-William Mclnnis.

_A little pep by_ the players in the field by way of talking to would put [little life in the game. How about it next time? But not at tho wrong time. -

an sure pick the

. They are snap- t in win every game

ts have the beet team have had for years and playing ‘great ball. besides as

MIGHTY As The Sea m. THRILLS

wreck. he rescued the

Into his ‘life she such as he had

table thrills!

with -

sluts nmsolv ravimn TARKE MAROE a nay

‘em nltivaswoltnpucn

TEE SALT TANG OF

A sea Ihrille

Out of a terrific storm and ship- sole survivor- » a girl of rare and ' ‘rlgulng beauty!

\brought romance never dreamed pos- . llblv. stirring adventure,

Produced with‘ '. notable all-star out!

‘It Glipsi, It Thrills! ItAmazesi ‘

ADVENTURE THAT rmaarnss

NEWS—~REVIEW ~ QRCHESTRA

l.

r ,

--vl‘i

A

r

i" J l

unforget-

THE SEA

good for the baseball fans week.

games this season have large turn out of fans to th so much so that. they have tle capitaito work with the other Provinces. want the Championship ho well in that. case the boys

on Friday , and Saturday.

out. to make a killing on the Mari- time Title. so it looks and listens

day and Saturdaytcvening of this The Abegweits in their home

met with s hard luck, the weather preventing a

on for games]

Charlottbetown.»Doi we? Yes we do,

‘for Fri-

College re-opens eptember‘ 6th.

e games, very lit-

WE

come w 11 1111134; attendance

torm- .

will bc T ’ . looking, for a little encouragement i; nf‘..l,fi“f,°;fl“l*°' the Una‘

on Tuesday.

wants of thob

illnibn Commercial. College N ote

Many graduates oi’ last tcrniiare now.in positions and giving salie- Yflifililil t0. their cmploynrs- , _

Already a number oi applications‘ are on flle. Everything points‘ lo this ciilrélng

W5 i

ard woo

salutary Everything hflfllih 0f the students. d-Writatoiiiayfor full information‘ f!‘ and BEl-__0n tho roadto silences. -—-—-<u-e>- __

Mrs. Jones Whitfllwbha siness v sverybodywag

Heated with hot tiloors. with treatment for dustnail veniantaos, sanitary towels, drinking

to’

mong I/tli _

9D III

cup . safeguar

olless e/tlnest Avatar. 'lal oil darn coii- . Blllll‘

.. etc-i - 1mg m

i . . i Moran will be opened tbi gte The fiplon Commerni ',=' class rooms are a in Calla a. h

gave what is cilia

v’

..,.-i

it a 11b ‘.1911: t:~i ._ to airing" iioiiiiitliilii tisil

fl

"f

it

~ 9"“- 39 I stasis . evenings "" cflwd“ "F" m m“ “m9 "1 Pierre on the 21st of May 1 up ed m 1856' lawn“ 8 N‘ ‘B’ a ' McKenzie ace ~ i’ be bl community‘ ‘ - ' “m” "59 511d 6i 100 i l 4 4 - _ I _ aunts for the girat ‘lug a c tn clout hard. they have and they promise you your m i9 m - . -. i Y 15¢ 11 in be .

ue of the said _Writ and at the w the seizure by captain Ikcmtm“, Chief‘ Justina zllgter‘ underhishl-dg‘ out on a’ w" mo‘ m trauma" amend the “had m“ and are worth ‘or both games. °n 5 er v11 lservlits classes unggrjlieltnro n-vsrway. Six womenitumed up,

mu.» of the alleged replevy of h h m“ 1h e 11°F "10 i 5 m" "9 ‘l’ ° flgld 1 . p 5°“ ‘mullml "l 9151101981 with heiii h b dr-"i ‘ -

‘l’ "m" m@3"°'*b4'~111*@1"-'fl"'1 lvfilliiillee riliciegwzl til; gsrrealgn °‘“"°d m“ °"°"" “m” “m” Dlate ltaf-llltvnliiotlllurlglutbzuiigilttg: ~' - "—"“ us an‘ ' '

"m d°°5 11°“ “e 1"“ "c" ‘Coast “M” u.“ "utlmflly M-m“ ‘Mlfiree. strikeaand Mclnnifweg t I ' ' . | 66mg; o‘? lglwku- the m»: ii‘.'%’i“’...‘$°.'i.°°2£§ .il...‘§°l'.§.‘i‘é¥ 3'; "algal-rightly that wi- i ' - ' ‘ " ' 211m‘!

,, ' i ,_ ate. a in; y, seaman,_ an - i b . e" our ‘was. e some. thin i ... ‘.. ~ That a Writ of Ropieviu Samuel van“, the ship-B 56015;“! dtwflmdl ‘° be 53%’ l“ &‘°_‘;';a for the Rovers. two swinginpout .-~..i>»--i

iuunot be legally issued against l h t l . t t t! on o t e aws r n: _ . “d one - _ ‘

ail "ifflcer of the customs fflfcogf rln l oDlcllp ail?“ Blaleilrfgn do protection or collection o! m‘ m“ Moouiaanm'l~%‘n‘1t::u“m°ld'l"! m ‘ I " I‘ ' ' ' annin cs. span - " - 0’._0l10'_lt .

' it",'.,"°_f‘2'°§{s§jnfileasihlfriffiijg Doses that he is (on the 10th‘ day 3:3,‘: Bffigelarll: jggswélalatlllgf‘annltoimiondiihancis’ ei‘nzle.:nd' \ ‘ “ "m " I ‘ ‘if - * oi Ailgusi, 1927) the owner of t B'..N h h d b 911. = isms accounted for the‘ _ __, , ;¢..‘.TI‘.‘...;;".'?f-". 'é’...‘.“.°.r“’“.'§‘°.§;..‘i§ ma‘ “° h“ “° “"°"'°“=°lr.§£ 15ml?” '£'s.‘l‘;..°..§-°o‘¥iiZZ$ '1'" m" s "to Cue-m“ wi-

- - c“ P of tho circumstances leading up to ‘or a bmnchht ma “News laws in; the second on strikes and M m

iiiri.;ilii~'i-»il in relation to th "Piillfiliilliillbll of the thing sci ,..

I ‘that the issuing of the said _\_\'i it wasannbuse of the process M‘ the Colirt fn that the affidavit

time issued herein did not

I

dis~

rd to the articles attempted l~- replevied, that is to say:

lfi- That the defendant. '11-. said goods in an official. "iplcity, namely. as an offic-i

‘vh- Thai. the said ' :-\-1s4laden with a. mods that had been seized by‘ ‘he Department of Customs. andthat the holds and cabins of the said schooner were seal- ed with Customs seals; l

schooner

C375‘) "l eported.

5. That the Beplovin Statute of this Province is not applicable to‘

. tliiii suit. i a case wherein the Crown dlr- ...___....____

n.

M MONTREAL 47 ; i‘ _ Livnnroon ‘ V 4Q. lept. l8 . . . . . . . . .. Montroso

.. Sept. £3 teelm an,» on. 1. Montelarel

3'5? l.*s%‘.."‘i.”'?.11iii;::.’.".’.““'““- I To IChi-rhonrg-Southampton-r Antwerp ‘tn the extent that

W“ "airliners" I31 Ghfibnzaz-Solthampton-

- "9"" give effect to the i

To allow a Writ of Roplevin to issue in respect of property held hell would only tend

e or in connection with the seizure ‘Wind that the "kegs of rum alleged Ito have been found” in the schoon- cr by the defendant were not emu!- vleii by him or with his knowledge ,or connivance. . Tl ifid it f Sheriff Dougan "Wm wmch m“ Writ M Replevl“ alctalljs ‘line zilrllcidgnts that attended illlfi execution of the Writ and the an certain important facts llliqcfiduvit o; M], J_ _;_ Johnston, K -C., Attcrney for the Plaintiff, sells “fic-rth conversations with the Col- held-liiimliii’ §é'.‘3.'.?i‘.‘.i.“‘.§“§."°iili’§?i§£‘*1" °'°""~" or not they had reported to the y. ‘ Commissioner of Customs the cir- ' "l m9 Guam!“ °t ("imdaifcumstances relating to the seizure t and detention of the schooner and Ltrhat each stated that he had not

. . The history of the ship on her Iniystcrious voyage, andher cs ‘by the Revenue Cruiser Bay laid, will be material for the consideru lion oi’ the proper tribunals but in Imy opinion would not relate to any issue which might be

The first question for determin- r" niion on this application is:-

Docs an action of Replovin lie for the recovery of goods seized as ‘ forfeited and held under condemn- ‘ation. rightly or wrongly, by the Cilstorns offiqetl?

l find the ship and cargo in the actual possession of the offioeis of the Crown in the right of Cah- utla purporting to hold the sllhe Jlllflef‘ the provisions of the "Cue- toms Act", a Statute of the Par- 4 Tliament of Canada affecting a sub-

ject within the exclusive ition or the Parliament of Canada.

it is true that property Province is within jurisdiction of the Province but‘ it is now an axiom that where‘ in such case a conflict of Jurisdiction -arises the Provincial must yield to

Jurisdic-

in the the exclusive

ltliie Dominion legislation. at. least is necessary to utter. t

possibly frustrate tho

the Dominion

. p v l"?! r as this ship iz ILJHfl-‘l lilontruyoljio dblgy M14 f v llontnnlrn Dpgrggiorpq; °_ ‘WWII "Ill! its exclusive field.

k sou-i aoifi-wlr. _n._ _ l lii the cu

custody purporting tue of a superior ri

reported 18 N. I. oounzekfor _

literati“

‘W! . I- . In G I ' N l‘

kw in

tire

tried in

has ever been replevled nor dowe think any such case‘ is to be found."

In Chitty's Practise. 13th Ed. it inlaid down at p. ‘I081: "it" (repltr viii) "ls a remedy that may be adopted by a- party in all oases iwbere chattels are unlawfully tak- ian from him except where the tek- iing was in execution under a JlIldBn merit of a Superior Court -or ‘in iordsr to a condemnation under the iltevenue laws or for a duty due to

Csmthrone v- Cami!- |bell. 1 Anstruthor, 2,12, is referred

elite: by ciiioi Baron liiyro in 119a referring to Revduuccases in the Exchequer Court said: "if a men at this day there being a eeizure

in order to condemnation, was to presume to replevy the goods it

for which an attachment would‘ b0 granted-instantly." , v '- To ‘the like effect is the state- ment oi the ancient law in 7 Bacon‘. Ab. _C- Roplevin: 7'80 where the King is e. party the taking is in right of the Crown. ‘in those oases the S erlff irto surcease."

Iii be. view -l take of the one it is‘ unnoceilssry "to comment upoii the provisions of the “Customs Act" for the protection of Gugl- toms Officers further than to iisy