Strayer,
J.:—
Relief
requested
This
is
an
appeal
under
section
135
of
the
Customs
Act
(R.S.C.
1985,
c.
C-40
(2nd
Supp.)
as
amended).
In
it
the
plaintiff
seeks
recovery
of
$8,983.53
being
part
of
the
money
withheld
by
the
Minister
of
National
Revenue
after
return
of
part
of
a
penalty
paid
by
the
plaintiff
to
obtain
the
release
of
certain
goods
seized
by
customs
officers
in
July,
1988.
The
plaintiff
concedes
that
the
defendant
is
entitled
to
retain
the
amount
of
duty
and
sales
tax
owing
on
the
goods
in
question
and
it
is
not
disputed
that
the
total
of
such
duty
and
sales
tax
is
$7,045.98.
The
amount
withheld
by
the
defendant
was
$14,091.96
and
the
maximum
refundable
would
therefore
be
$14,091.96
minus
$7,045.98,
or
$7,045.98.
The
calculation
of
the
sum
claimed
by
the
plaintiff
is
unexplained.
Facts
Notwithstanding
a
day
of
confusing
and
repetitious
evidence,
the
relevant
facts
are
fairly
simple.
On
or
about
July
11,
1988
a
shipment
of
books,
colouring
books,
calendars,
catalogues,
etc.
arrived
by
rail
at
Welland,
Ontario
packed
in
a
sealed
container
having
been
shipped
by
Price,
Stern
Sloan,
Inc.
of
Los
Angeles,
California
to
the
plaintiff
in
Mississauga,
Ontario,
the
purchaser
of
this
shipment.
The
carrier
was
the
Norfolk
and
Western
Railway
Company
which
contacted
Donna
MacCullouch,
Office
Manager
in
Welland
of
Livingston
International
(a
subagent
for
the
plaintiff's
customs
broker,
the
latter
being
Hemisphere
Freight
&
Brokerage
Services
Inc.
of
Toronto).
The
only
documentation
which
Donna
MacCul
ouch
had
on
July
Tith
was
a
manifest
provided
to
her
by
the
carrier.
This
manifest
showed
the
shipment
to
consist
of
897
packages
of
books
with
a
total
weight
of
15,800
pounds.
Ms.
MacCullouch
that
day
contacted
Hemisphere
and
Hemisphere
contacted
its
principal,
the
plaintiff.
The
plaintiff
in
turn
contacted
the
shipper
in
Los
Angeles.
On
July
12
the
shipper
faxed
to
the
plaintiff
a
Canada
Customs
invoice
and
a
bill
of
lading
in
respect
of
the
shipment
indicating
that
it
contained
472
cartons
on
five
pallets
and
16
loose
cartons.
Also
sent
that
day
was
a
commercial
invoice
which
appears
to
refer
only
to
472
cartons
on
five
pallets.
The
Canada
Customs
invoice,
at
least,
was
communicated
to
Ms.
MacCullouch
of
Livingston
International
in
Welland.
At
this
point
there
is
some
divergence
in
the
evidence.
According
to
Jacqueline
Beaudoin,
a
customs
inspector
called
as
a
witness
for
the
defendant,
Ms.
MacCullouch
then
presented
the
manifest
and
the
Canada
Customs
invoice
as
a
form
of
declaration
for
release
of
the
shipment
under
a
process
known
as
Release
on
Minimal
Documentation
(“R.M.D.”).
This
procedure
is
authorized
by
subsection
32(2)
of
the
Customs
Act
and
applied
to
the
import
of
commercial
goods.
The
Act
requires
an
“interim
accounting"
prior
to
release
which,
by
the
Regulations
as
they
apply
to
this
case,
would
involve
the
presentation
by
the
importer
of
"a
customs
invoice
or
any
other
document
that
enables
an
officer
to
make
an
estimate
of
the
value
for
duty
of
the
goods
.
.
."
which
identifies
the
exporter
and
importer,
describes
the
goods,
and
indicates
the
unit
of
measurement
and
quantity
of
the
goods.
With
respect
to
such
goods
as
were
involved
here,
the
importer
then
has
five
days
after
release
of
the
goods
to
provide
a
further
accounting
in
accordance
with
the
Act
and
to
pay
any
duties
owing.
Ms.
Beaudoin
says
that
Ms.
MacCullouch
presented
to
her
on
July
11,
or
possibly
on
July
12,
the
manifest
showing
897
packages
in
the
shipment,
and
the
Canada
Customs
invoice
showing
472
cartons
on
five
pallets
plus
16
other
pieces,
the
latter
showing
the
weight
to
be
15,800
pounds
which
was
the
same
weight
as
shown
in
the
manifest
for
897
packages.
According
to
Ms.
Beaudoin
she
rejected
the
documents
because
of
this
discrepancy.
Ms.
MacCullouch
denies
that
this
happened,
says
that
she
herself
noticed
the
discrepancy
and
on
her
own
initiative
contacted
the
carrier.
While
much
time
was
spent
at
the
trial
on
this
issue,
counsel
did
not
explain
to
me
the
legal
significance
as
to
whether
there
was
or
was
not
an
initial
presentation
of
an
R.M.D.
with
these
discordant
documents.
At
best,
counsel
for
the
defendant
suggested
that
the
fact
that
Ms.
Beaudoin
had
given
Ms.
MacCullouch
an
opportunity
to
take
the
documents
away
and
present
correct
documents
showed
the
fairness
and
good
faith
of
the
customs
officers.
As
far
as
I
can
see
that
is
not
relevant
to
any
issue
I
have
to
decide.
What
seems
undisputed
is
that
Ms.
MacCullouch,
with
or
without
prior
presentation
of
the
discordant
documents
to
Ms.
Beaudoin,
contacted
the
railway
carrier
and
asked
it
to
correct
its
manifest.
This
the
carrier
did,
altering
the
manifest
for
the
shipment
to
indicate
only
472
cartons
of
books
(instead
of
the
original
897)
but
still
showing
the
weight
at
15,800
pounds.
A
notation
was
added:
"Rewritten
to
agree
with
correct
number
of
pieces".
There
is
some
inconsistency
in
the
plaintiff's
case
as
to
whether
Ms.
MacCullouch
received
the
Canada
Customs
invoice
and
other
documents
in
respect
of
the
472
boxes
on
pallets
plus
16
loose
boxes
on
July
12
or
July
13
(c.f.
transcript
pages
52.247).
In
any
event
the
plaintiff
concedes—and
this
appears
to
be
most
consistent
with
all
the
evidence—that
Ms.
MacCullouch
presented
"a
declaration,
an
R.M.D
on
July
13
(transcript
page
380).
I
so
find.
This
"declaration"
consisted
of
a
presentation
of
the
Canada
Customs
declaration
showing
472
cartons
on
five
pallets
plus
16
loose
cartons,
and
the
"rewritten
manifest"
showing
472
cartons
to
which
was
attached
the
original
version
of
the
manifest
showing
897
cartons.
Ms.
Beaudoin
testified,
and
I
accept,
that
because
of
the
discrepancy
between
the
original
manifest
and
the
Canada
Customs
invoice
she
decided
that
the
shipment
should
be
opened
for
inspection,
and
this
was
done
the
next
day.
There
is
no
real
dispute
over
most
of
what
happened
on
July
14.
At
about
8:00
a.m.
customs
inspectors
opened
the
container
containing
the
shipment.
They
found
in
it
897
cartons.
They
also
found
in
it
envelopes
containing
complete
documentation
for
the
shipment.
This
included
bills
of
lading
for
379
cartons
weighing
12,808
pounds,
for
30
cartons
weighing
1,750
pounds,
and
for
472
cartons
of
calendars
plus
16
cartons
of
display
fixtures,
weighing
15,808
pounds,
for
a
total
weight
of
30,366
pounds.
Also
included
was
a
Canada
Customs
invoice
for
the
379
cartons
on
ten
pallets
as
well
as
a
Canada
Customs
invoice
for
the
472
cartons
on
five
pallets
plus
16
loose
cartons.
It
will
be
noted
that
the
bill
of
lading
and
the
Canada
Customs
invoice
for
472
cartons
on
five
pallets
plus
16
loose
cartons
covered
the
same
items
that
Livingston
had
declared
on
behalf
of
the
plaintiff
on
July
13,
whereas
the
other
documentation
covered
the
rest
of
the
shipment.
Thus
during
the
morning
of
July
14
the
true
situation
became
apparent
to
customs
officers,
namely
that
there
were
some
409
cartons
in
the
shipment
which
had
not
been
declared;
and
further,
that
the
total
weight
of
the
shipment
was
not
15,800
pounds
as
shown
on
the
documents
presented
for
the
R.M.D.
on
July
13,
but
was
instead
30,366
pounds.
The
total
value
of
the
shipment
shown
on
these
documents
was
$76,437.16
instead
of
the
$42,137.20
shown
on
the
single
Canada
Customs
invoice
presented
with
the
R.M.D.
package
on
July
13.
It
is
also
clear
that
at
about
12:15
p.m.
Los
Angeles
time
on
July
14,
the
shipper,
Price,
Stern
and
Sloan,
faxed
to
the
plaintiff
additional
documentation
covering
the
rest
of
the
shipment,
completing
the
documentation
which
it
should
have
sent
on
July
12
which
only
covered
472
cartons
on
five
pallets
plus
16
loose
cartons
for
a
total
weight
of
15,800
pounds
and
a
total
value
of
$44,370.20.
These
additional
documents
were
faxed
by
the
plaintiff
to
Hemisphere
that
day.
The
only
question
of
fact
seriously
in
dispute
in
respect
to
the
events
of
Jul
14
is
as
to
whether
this
additional
documentation
from
the
shipper,
which
would
have
been
received
by
the
plaintiff
in
Toronto
after
3:00
p.m.
that
day
and
retransmitted
to
Hemisphere,
was
further
transmitted
to
customs
officers
in
Welland
later
in
the
day.
The
only
evidence
that
the
plaintiff
could
produce
that
such
might
have
happened
arose
out
of
the
cross-examination
of
Paul
Smyth,
a
customs
inspector
from
Port
Colbourne.
He
had
been
asked
to
go
to
Welland
on
July
14
to
take
over
the
paperwork
for
the
seizure
that
was
being
done
by
Jacqueline
Beaudoin
as
she
had
to
leave
on
other
business.
While
he
did
not
specify
what
time
he
arrived
in
Welland
on
July
14,
it
is
clear
that
Ms.
Beaudoin
had
already
carried
out
the
inspection
of
the
container,
had
listed
its
contents,
and
had
found
the
documentation
in
the
container
as
described
earlier.
Ms.
Beaudoin
showed
Mr.
Smyth
various
documents
after
his
arrival
including
her
own
work
sheets
on
the
inventory
of
the
contents
of
the
container.
When
asked
on
cross-examination
as
to
whether
Ms.
Beaudoin
showed
him
documents
“which
had
fax
marks
on
them”,
he
replied
that
"some
of
them
did"
(transcript
pages
216-17).
He
had
no
recollection
of
the
fax
dates
indicated
on
such
documents.
Counsel
for
the
plaintiff
was
apparently
trying
to
demonstrate
that
the
correct
documentation
had
arrived
by
tax
from
Los
Angeles
via
the
offices
of
the
plaintiff
and
of
Hemisphere
and
had
been
presented
on
July
14
to
Ms.
Beaudoin.
Ms.
Beaudoin
categorically
denies
this,
and
she
had
kept
notes
of
events
commencing
the
morning
of
July
14
to
which
she
referred
in
her
testimony.
In
the
absence
of
any
more
precise
evidence
on
behalf
of
the
plaintiff
I
do
not
consider
that
it
has
established
that
it
had
provided
the
correct
documentation
voluntarily
on
July
44
through
faxed
documents.
It
is
clear,
in
anyevent,
that
those
documents
could
not
have
arrived
in
Welland
before
the
container
was
opened
and
the
contents
inspected.
The
evidence
is
clear
that
upon
the
inspection
being
made
and
the
discrepancies
being
found
between
the
actual
contents
of
the
shipment
and
the
R.M.D.
presented
on
July
13,
that
portion
of
the
goods
which
had
not
been
declared
in
the
R.M.D.
were
treated
as
seized.
A
seizure
receipt
was
issued
on
July
18
indicating
that
those
goods
could
be
released
on
deposit
of
$20,882.55.
Subsequently
a
corrected
statement
of
goods
seized
was
issued
on
July
25
showing
the
total
amount
owing
to
be
$21,137.94
representing
the
total
duty
and
sales
tax
owing
on
the
undeclared
goods
plus
a
penalty
of
twice
that
amount.
The
goods
were
released,
however,
on
July
28
by
payment
of
$20,882.55
on
behalf
of
the
plaintiff.
On
August
31,
1988
a
formal
notice
of
seizure
was
issued
under
section
130
of
the
Customs
Act.
The
reason
stated
for
the
seizure
was:
That
the
said
goods
were
not
reported
to
Customs,
in
contravention
of
section
12
of
the
Customs
Act.
Although
there
was
no
evidence
on
the
point,
it
appears
that
the
plaintiff
then
made
submissions
to
the
Minister
as
contemplated
by
section
130.
On
November
18,
1988
a
decision
was
issued
on
behalf
of
the
Minister
that
there
had
been
a
contravention
of
the
Customs
Act
in
respect
of
the
goods
which
were
seized,
that
the
amount
of
$14,091.96
should
be
held
as
forfeit
and
that
the
amount
of
$6,790.59
should
be
returned.
It
is
that
decision
which
is
under
appeal.
Issues
It
appears
to
me
that
the
essential
issues
raised
by
the
parties
are:
(1)
When
did
the
seizure
take
place?
(2)
Did
the
plaintiff
comply
with
the
Customs
Act
in
time?
(3)
If
not,
did
the
plaintiff
act
in
good
faith?
(4)
If
so,
does
good
faith
of
the
importer
render
illegal
the
seizure
of
goods
and
the
imposition
of
penalties
by
the
Minister
of
National
Revenue?
and
(5)
If
so,
what
amount
is
the
plaintiff
entitled
to
recover?
Conclusions
When
did
the
seizure
take
place?
Subsection
12(1)
of
the
Customs
Act
provides
as
follows:
12.(1)
Subject
to
this
section,
all
goods
that
are
imported
shall,
except
in
such
circumstances
and
subject
to
such
conditions
as
may
be
prescribed,
be
reported
at
the
nearest
customs
office
designated
for
that
purpose
that
is
open
for
business.
While
subsection
32(2),
referred
to
above,
provides
for
the
procedure
used
by
the
plaintiff
here
of
only
an
“interim
accounting”
prior
to
release
of
the
goods,
with
a
more
complete
accounting
and
payment
of
duty
to
follow
later,
the
“interim
accounting"
as
I
understand
it
represents
the
report
initially
required
under
section
12.
As
noted
earlier,
by
subsection
9(1)
of
the
Accounting
for
Imported
Goods
and
Payment
of
Duties
Regulations
the
interim
accounting
must,
inter
alia,
provide
such
information
as
will
enable
an
officer
to
make
an
estimate
of
the
value
for
duty
of
the
goods,
describe
the
goods,
and
indicate
their
quantity.
I
find
that
the
plaintiff
acting
through
the
person
relied
on
by
it
for
the
purpose,
Donna
MacCullouch
of
Livingston
International,
purported
to
provide
an
“interim
accounting”
on
July
13
and
this
“interim
accounting"
did
not
comply
with
the
Act
and
Regulations.
It
misdescribed
the
shipment
so
as
to
make
it
impossible
for
the
customs
officers
either
to
know
the
total
quantity
of
the
goods
in
the
shipment
or
form
any
accurate
estimate
of
their
total
value.
Indeed
the
inspection
of
the
shipment
later
revealed
additional
goods
beyond
those
declared
having
a
value
almost
equal
to
the
amount
actually
declared.
By
section
110
the
customs
officers
were
entitled,
upon
making
this
discovery,
to
seize
the
goods
not
declared
and
by
section
122
those
goods
would
be
deemed
forfeited
to
the
Crown
from
the
time
of
the
contravention
of
the
Act,
that
is
from
the
time
of
the
incorrect
declaration
made
in
respect
of
this
shipment
on
July
13.
There
is
ample
authority
to
the
effect
that
a
failure
to
comply
with
reporting
sections
such
as
the
present
section
12
gives
rise
to
instant
forfeiture.
Such
forfeiture
is
not
dependent
upon
any
act
of
the
customs
officials
but
is
the
legal
consequence
of
unlawful
importation
through
failure
to
make
a
proper
report.
Did
the
plaintiff
comply
in
time?
Therefore
the
events
of
July
14,
in
particular
the
question
of
whether
the
additional
documentation
sent
from
Los
Angeles
was
seen
by
customs
officer
Smyth
that
day,
are
completely
irrelevant
as
to
the
legality
of
the
seizure
and
forfeiture
because
the
erroneous
declaration
had
already
been
made
on
July
13.
Did
the
plaintiff
act
in
good
faith?
The
main
contention
of
the
plaintiff,
as
I
understand
it,
is
that
it
had
acted
in
good
faith
without
either
wrongful
intent
or
negligence.
There
is
certainly
no
evidence
that
the
plaintiff
had
an
intent
to
deceive
customs
authorities
by
misdescribing
the
shipment.
Problems
arose
for
the
plaintiff,
as
I
see
it,
because
the
shipper
failed
to
send
all
relevant
documents
on
July
12
when
asked
to
do
so
and
then
because
the
plaintiff's
representative
in
Welland,
Ms.
MacCullouch
of
Livingston,
jumped
to
the
conclusion
that
the
manifest
was
in
error
when
she
was
provided
with
the
Canada
Customs
invoice
for
only
472
cartons
on
five
pallets
plus
16
loose
cartons.
While
I
find
it
surprising
that
neither
the
plaintiff's
employees
nor
those
of
Hemisphere
and
Livingston
took
greater
pains
to
confirm
the
accuracy
of
the
information
to
be
provided
to
Canada
Customs
I
do
not
think
that
anything
turns
on
that
in
this
action.
The
plaintiff
may
have
remedies
against
those
responsible
for
this
serious
misreporting
of
the
shipment.
Suffice
it
to
say
for
the
purposes
of
this
proceeding
that
no
evidence
has
been
presented
to
suggest
that
the
plaintiff
was
guilty
of
either
deliberate
deception
or
of
gross
negligence
in
causing
the
erroneous
declaration
to
be
made
on
July
13.
Does
the
good
faith
of
the
importer
make
the
seizure
illegal?
The
jurisprudence
seems
clear
to
me,
however,
that
good
faith
on
the
part
of
the
importer
is
not
enough
to
prevent
goods
from
being
seized
and
forfeited
because
of
an
erroneous
declaration.
This
has
been
held
in
numerous
cases,
one
of
the
most
authoritative
being
The
Queen
v.
Letarte,
[1981]
2
F.C.
76.
In
that
case
certain
truckers
accustomed
to
hauling
loads
from
the
United
States
to
Canada
on
one
occasion
acquired
new
trailers
while
in
the
United
States
and
carried
cargo
in
them
into
Canada.
At
the
border
the
truckers
declared
their
cargo
in
writing
as
usual
and
there
was
evidence
that
they
mentioned
orally
to
customs
officers
that
they
had
"picked
up”
new
trailers
in
the
United
States.
They
made
no
written
declarations
in
respect
of
the
trailers
as
they
were
required
to
do
under
paragraph
18(b)
of
the
Act
(the
counterpart
of
present
section
12).
The
trailers
were
seized
before
they
could
make
such
declarations.
This
seizure
was
nullified
by
the
trial
judge.
This
decision
was
reversed
on
appeal,
Pratte
J.
for
the
Court
of
Appeal
stating
as
follows
(at
page
78):
It
is
clear
that
paragraph
18(b)
of
the
Customs
Act,
R.S.C.
1970,
c.
C-40,
was
not
observed
in
the
case
at
bar.
The
decision
of
the
Trial
Judge
[[1979]
1
F.C.
605]
that,
despite
this
fact,
the
seizure
of
the
undeclared
goods
was
not
legally
made
appears
to
have
been
based
on
the
good
faith
of
the
truckers,
who
failed
to
comply
with
paragraph
18(b).
This
reasoning
appears
to
the
Court
to
be
without
legal
validity.
Under
section
180,
a
seizure
results
from
failure
to
comply
with
section
18,
regardless
of
whether
the
individuals
in
question
acted
in
good
faith.
[Emphasis
added.]
This
principle
has
been
applied
many
times
since
by
the
Trial
Division.
Counsel
for
the
plaintiff
contends
that
all
these
cases
are
distinguishable
in
that
there
the
importers
were
aware
of
the
existence
of
the
goods
but
failed
to
report
them.
In
fact
in
the
Gervaiss
case
decided
by
Rouleau,
J.
in
1985
the
importer
made
an
error,
not
as
to
his
obligation
to
report,
but
as
to
the
value
of
the
items
being
imported.
Even
accepting
the
importer's
allegation
that
this
was
an
innocent
mistake
Rouleau,
J.
struck
out
his
action
on
the
grounds
that
good
faith
was
irrelevant
to
the
validity
of
the
seizure.
It
appears
to
me
that
in
principle
it
does
not
matter
whether
the
importer
makes
an
innocent
mistake
as
to
fact
or
as
to
law.
The
system
is
one
of
voluntary
reporting
and
strict
liability
attaches
to
those
who
fail
to
report.
The
contravention
of
the
Act
occurs
when
an
incorrect
declaration
is
made
on
behalf
of
an
importer
and
the
source
of
the
error
is
irrelevant.
By
the
same
token
the
importer
is
liable
because
he
has
failed
to
ensure
that
a
correct
report
was
made,
and
it
matters
not
whether
he
made
the
incorrect
report
himself
or
whether
he
relied
on
a
customs
broker,
a
relative
or
an
unpaid
agent
to
make
the
report.
Therefore
arguments
by
counsel
for
the
plaintiff
that
Livingston
was
not
expressly
authorized
to
act
as
its
agent
are
not
pertinent
to
the
plaintiffs
liability,
even
if
they
had
any
intrinsic
validity.
The
result
is
that
there
was
a
contravention
of
subsection
12(1)
on
July
13
when
the
plaintiff
failed
to
provide
a
correct
declaration
through
the
R.M.D.
process.
The
goods
were
legally
forfeited
as
of
that
time.
Quantum
of
recovery,
if
any
As
the
plaintiff
is
not
entitled
to
any
recovery
it
is
not
necessary
to
consider
the
quantum.
However,
should
the
matter
go
any
farther
I
find
that
if
the
forfeiture
were
invalid
the
plaintiff
would
be
entitled
to
recover
$7,045.98,
the
amount
of
penalty
still
being
withheld
by
the
defendant.
Costs
At
the
end
of
the
trial
counsel
for
the
defendant
not
only
asked
for
costs
but
asked
that
they
be
payable
on
a
solicitor
and
client
basis
for
any
extra
trial
time
resulting
from
the
fact
that
counsel
for
the
plaintiff
had
not
co-operated
in
establishing
an
agreed
statement
of
facts
notwithstanding
the
defendant's
efforts
to
obtain
such
an
agreement.
As
there
was
no
evidence
as
to
those
efforts
I
gave
her
the
opportunity
to
file
affidavit
evidence
as
to
her
communications
to
counsel
for
the
plaintiff
in
this
respect.
She
subsequently
filed
such
an
affidavit.
I
gave
counsel
for
the
plaintiff
an
opportunity
to
file
an
affidavit
in
reply
but
he
has
not
done
so.
I
am
satisfied
that
there
could
and
should
have
been
an
agreement
on
most
of
the
facts
and
on
the
authenticity
of
the
documents
(even
if
there
were
a
dispute
to
be
resolved
at
trial
as
to
which
copies
of
the
documents
were
in
the
hands
of
the
parties
at
any
particular
time).
As
noted
above,
there
were
really
only
two
facts
in
dispute
and
both
of
them
were
legally
irrelevant
to
liability.
Further,
I
find
that
counsel
for
the
plaintiff
was
mainly
responsible
for
this
situation
by
not
making
any
serious
effort
to
achieve
such
an
agreement.
As
counsel
for
the
plaintiff
he
had
a
particular
responsibility,
and
opportunity,
in
this
respect,
because
he
had
the
burden
of
proof.
Nor
do
I
accept
his
explanation
that
he
was
too
busy
in
other
courts.
This
case
was
set
down
on
June
5,
1991
for
a
trial
on
December
17
and
18,
and
he
had
ample
time
to
see
that
the
case
was
ready
for
a
trial
which
could
be
held
with
a
minimum
of
wastage
of
time
for
the
parties
and
the
Court.
I
am
not
prepared
to
place
an
additional
burden
on
the
plaintiff
by
a
special
order
as
to
solicitor-client
costs,
however.
Considering
all
the
circumstances
the
plaintiff
has,
through
the
operation
of
the
Customs
Act,
been
subjected
to
a
penalty
in
the
absence
of
any
bad
faith
on
its
part
and
I
do
not
intend
to
add
to
its
burden
by
reason
of
counsel's
conduct
of
the
case.
Disposition
The
action
will
therefore
be
dismissed
with
costs.
Action
dismissed.
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