That order provides that, upon the rate of duty due under the Convention of Commerce being decided, the parties shall, within 3 months, pay the same to the Customs, and receive back the bills.

The parties have paid the 1d. duty, as the duty which was directed to be taken under the Treasury Minute of the 15th October, 1841; and that duty was accepted, without any qualification by the Customs, and a bond given to abide any decision of Parliament. There has been no decision in any way affecting the question, and the bond has been cancelled; and therefore they consider they are entitled, at once, to receive back their Exchequer bills.

It is difficult to imagine what answer can be made by the Customs upon the general question. It has been suggested that they will contend that the Treasury Order only relates to rough rice upon which duty has not yet been charged; and that the high duty had, in fact, been charged upon this paddy, although not paid.

It is not very easy to understand what was exactly meant by the expression "upon which duty has not been charged." It has been suggested that it must mean, when the duty has been absolutely paid in the usual way, and regularly charged to the collector, in conformity with the entries passed; and it is observed that, in instances like the present, (but which are very rare indeed), where parties object to pay the amount demanded, and Exchequer bills are merely deposited by agreement, as security, in exchange for the goods, pending the question in dispute, such deposit cannot be considered to constitute payment, and, therefore, that the duty cannot be said to have been charged. And it is further observed, that the Exchequer bills deposited always amount to more than the duty demanded; such bills being only issued for even sums, such as 100%., 2007., and upwards. It may, however, be sufficient that the Customs did not consider the paddy as having been charged with duty, as they have taken the 1d. duty on that very paddy. The order of deposit speaks of the high duty demanded; and assumes that "the rate of duty due" is to be a matter of subsequent decision, and the deposit is made to abide the result of that decision; and such decision has practically been made, and the duty assumed to be due has been paid.

It is conceived that all the documents must be taken together, with reference to the Exchequer bills; and that the condition of the Board's order, upon which the deposit was made, must decide how far the depositary is entitled to retain possession of the bills, and on that order or agreement, the only question that remains is, whether the decision has not taken place as to the rate of duty.

The Customs having taken the duty of 1d., and having taken a bond which has since been cancelled, have, in fact. decided the question; and they can have no right to retain the Exchequer bills unless they could equally have a right to enforce still the payment of 2s. 6d.

duty. It is conceived that they clearly could not enforce that duty, and therefore cannot retain the deposit.

There may be some difficulty in deciding as to the remedy to get possession of the Exchequer bills. Mr. Franc holds the bills (as is contended) merely as a depositary, and not by virtue of his office under Government; and is as much bound to fulfil the terms of the deposit, as if it were a question between individuals, for whom he was a stakeholder.

You will please to advise, 1st. Whether the parties are entitled, according to the true construction of the documents laid before you, to have the Exchequer bills returned. 2nd, Whether they could successfully bring an action of trover against Mr. Franc; or, generally, what are their rights, and the expedient course for them to pursue.

Opinion.

Serjeant's Inn, February 8, 1843, We are of opinion that the parties are entitled to have the Exchequer bills returned to them, which were deposited upon the terms of the memorandum or minute of the Board of Customs, set forth in page 2 of the case. It would have been satisfactory to have known the reasons which have been assigned for the refusal to return the Exchequer bills; but, in the absence of that knowledge, it is necessary, in order to explain the grounds of our opinion, to advert to the terms of the Customs' Minute, before mentioned, under which the deposit was made, and the several circumstances connected with it, and especially those which have since occurred.

It appears that an equal rate of duty had been chargeable upon all foreign-grown rice; but the duty upon rice from Africa had been reduced whilst the duty chargeable upon American rice remained at the higher rate; and this circumstance gave rise to a claim on the part of the Government of the United States of America, that rice from that country should be admitted at a rate of duty not higher than that charged upon African rice, it being contended that, by the terms of an existing Convention of Commerce between Great Britain and America, American rice ought to be admitted at a duty not higher than that which was imposed upon rice from any other foreign country. And, pending this dispute, the Exchequer bills in question were deposited, by way of security, for such duty as might be ultimately demanded in respect of certain cargoes of American rice then imported.

No dispute or question could be raised as to the amount of duty chargeable, according to the existing revenue Acts, either upon African rice or upon American rice, those Acts being clear and distinct in their provisions; but the contest was, whether the exaction of duty

according to those statutes, was not inconsistent with the express stipulations of the existing Treaty. At the time of the deposit, this matter was under discussion between the British and American Ministers.

By the statute 3rd and 4th William IV, chap. 56, American rice was clearly subject to a duty of 2s. 6d. per bushel; and that Act continued in force at the time of the importation of the rice to which the case relates.

The discussion between the British and American Ministers cannot be supposed to have been upon the meaning and construction of English Acts of Parliament, but had reference only to the international question of the meaning and effect of the Convention of Commerce, then existing in full force between the 2 countries.

By that Convention, it was stipulated that no higher duty should be demanded upon the rice the growth of America, than was imposed upon the same article, the growth of any other foreign nation. But while that Convention was in full force, a statute passed, in the 5th and 6th William IV, chap. 66, by which the duty upon rice, the growth of Africa, was lowered to 1d. per bushel; and, after that Act came into operation, the American Government claimed the benefit of the Convention, and insisted that, according to its terms, no higher duty could be demanded upon American rice than the reduced duty upon African rice, of 1d; and the British Government entered into the discussion of that question.

Pending this dispute, it was deemed to be expedient to admit the importation of rice, to which this case refers, upon a deposit of Exchequer bills, to abide the event of this (not legal, but) diplomatic question.

After the deposit of the Exchequer bills, the discussion of the question continued, until the British Minister agreed to concede the construction contended for by the American Minister; and, by the authority of the Lords of the Treasury, the Commissioners of the Customs received the duty after the rate consistent with that construction; and by a subsequent Treasury Minute, the bond which had been given to secure the duty was directed to be cancelled.

The Customs' Minute, in page 2, is material. By that minute, it is ordered that the paddy should be delivered, upon Exchequer bills being deposited equal to the amount of the high duty demanded.

Pending the decision as to the rate of duty due thereon under the Convention of Commerce, the bills [were to be] held in deposit; and upon the rate of duty being decided, the parties to pay the same within 3 months, and receive back the bills. This memorandum expressly states the decision upon which the amount of duty was to depend, was a decision as to the rate due, not under the Act of Parliament, but under the Convention of Commerce; and, however it

may be competent to the Government, notwithstanding the concession to the American Minister, upon the construction of the Convention, to enforce the payment of the high rate of duty by legal process, yet it is clear that, according to the terms upon which the Exchequer bills were deposited, they were pledged, subject to a decision upon the rate of duty due under the Convention of Commerce. The decision of the rate of duty payable under the Convention could not be meant to be a decision of a court of law, where the Act of Parliament could furnish the only rate for decision. The decision here referred to, must, it is conceived, have meant a decision of the Executive upon the construction of the Treaty; and, accordingly, the British Government has so treated the matter. No suit was instituted or contemplated, but the matter was discussed by the Executive Government, and has, within the meaning of the minute, been decided by that Government, as will be manifest from the Minute of the 15th October, 1841, which states, that it appears to my Lords that the discussion originated in, and depended on, the construction to be given to the IInd Article of the Convention of July, 1815; and that, upon a point of doubtful discussion, my Lords are ready to alter the Customs' law, so as to make it conformable to the view taken by the Minister of The United States of the provisions of the Convention, and will propose to Parliament the equalization of the duties; and that, with a view to accelerate the operation of a measure considered desirable by the citizens of The United States, directions will be given that American rough rice, on which duty has not yet been charged, shall be admitted to enter at the duty of 1d. per quarter, subject to future confirmation by Parliament. This minute was accompanied by an order to the Customs to admit American rough rice, upon the parties importing entering into the usual obligation to abide the decision of Parliament.

Under the authority of this minute, the rice in question was charged with the duty of 1d. and the bond within referred to taken from the parties; and which is subject to a condition to abide the decision of Parliament.

Thus much as regards the question, upon the determination of which the return of the Exchequer bills was to depend. It remains to be seen if that question has, within the meaning of the minute, been in fact determined.

By the Treasury Minute, the Government has not only agreed to concede the construction of the Convention contended for by the American Minister, but pledged itself to submit the confirmation of that construction to Parliament; and it must be taken for granted that the Government intended to act conformably to that pledge, even if it shall be found to have carried out its own object imperfectly.

The Government, after this arrangement, and in redemption of its pledge, introduced into Parliament a Bill to equalize, in future, the

duty upon all rice, the growth of foreign countries; and that bill passed into a law, and imposed a duty upon all such rice of 78. per quarter. But this Bill was, in its terms, only prospective; it contained no provision in regard to the duty to be charged upon American rice imported during the period that African rice was subject to the duty of 1d. only.

This Act established or confirmed the principle of equal duty upon all foreign rice, which was the principle of the Convention of Commerce, and which principle had been departed from when the statute of 6th and 7th William IV, chapter 60, reduced the duty to 1d. per quarter upon African rice, whilst it left American rice subject to the duty of 2s. 6d. per bushel; and, in order to carry out into full effect the principle of equalization adopted by the subsequent statute, and to execute the Convention of Commerce in good faith towards the American Government, the rice in question (which was imported in the interval between the passing the 6th and 7th William IV, chapter 60, and the statute equalizing the duty) should be subjected to the payment of no higher rate of duty than that imposed upon the African rice during the same period. And, accordingly, the British Government so viewed the effect of the Act of Parliament, and held the passing of that Act to be a determination by Parliament that the low rate of duty which had been paid was all that ought to be demanded; and therefore directed the bonds to be cancelled, which had been given up upon the occasion of the 1d. duty being received,

The Treasury Minute which directed this cancellation is dated the 6th of August, 1842; and which, after referring to an application that the bonds might be cancelled, the conditions thereof being complied with, their Lordships authorized the Board of Customs to cancel the said bonds. Accordingly, the condition of the bonds, as before stated, was to abide the decision of Parliament.

If the deposit of the Exchequer bills was to be subject to the decision of the Executive, that decision was pronounced when it declared its concession of the construction of the Convention of Commerce contended for by the American Minister, and ordered a 1d. duty to be received. If, on the other hand, the deposit was dependent upon the decision of Parliament, the Government has shown its understanding of the meaning of that condition by directing the bond to be cancelled, upon the ground that the condition to abide the decision of Parliament had been complied with by the payment of 1d. duty. The Government pledged itself to the American Minister to submit to Parliament the confirmation of the construction of the Convention, so contended for by him; and the Government has only kept faith with him, by its treating the equalization of the duties by the Act equalizing the duties as such confirmation. The Government has submitted the promised confirmation in no other form; and it is