Campbell and Another v. Anderson and Co. [1818] UKHL 5_Dow_412

UKHL
Campbell and Another v. Anderson and Co.
[1818] UKHL 5_Dow_412
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816—17.57 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 21

Campbell and Another Appellants v. Anderson and Co. Respondents

Feb . 9 , March 16 , 1818 .1809, in the Court of Session, against the excise officers, for reduction of the decreet for reasons specified (the decreets being against Anderson and Co. not being one of the reasons specified), and other reasons, and for repetition of their money, and for damages. Preliminary defences founded on want of jurisdiction in the Court, because the decreet rested on revenue statutes, on want of a month's previous notice to the officer, and on the alleged expiration of the time for bringing the action (three months), repelled: and interlocutor of the Lord Ordinary on the merits reducing the decreet, and finding the pursuers entitled to repetition of their money, but assoilzieing the defenders from the conclusion for damages. The interlocutor acquiesced in by the pursuers, who dropped their claim for damages, and the interlocutor adhered to by the Court. Difficulties in the Dom. Proc. because the summons contained a conclusion for damages, though not insisted upon after the Lord Ordinary's interlocutor; and because the reason that the decreet was against Anderson and Co. was not specified in the summons, and question whether it could be taken advantage of under the words “ other reasons: ” but the judgment affirmed .JURISDICTION OF THE COURT OF SESSION, &c. — IRREGULARITY. — PLEADING.Decreet in October, 1807, by justices of peace against Anderson and Co. tanners, finding them liable in a penalty, and condemning stock on their premises seized in August or September, 1807, by an excise officer, made without evidence, on complaint of a collector of excise that Anderson and Co. carried on the trade of curriers as well as tanners at the same time, contrary to law. The goods sold under the decreet, and purchased up by Anderson and Co. who brought their action in

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This was an action by Anderson and Co. tanners in Beith, in Ayrshire, against Iver Campbell, collector, and Archibald Douglas, supervisor of excise, to reduce a decreet of justices, made on complaint of the collector, condemning the whole stock in the drying-sheds of the pursuers, consisting of uncurried skins, which had been seized by Douglas, the excise officer, on the alleged ground that the pursuers were in partnership with a currier in Beith, contrary to law; and for repetition of the money paid by the pursuers for their own skins when sold by roup under the decreet; and also for damages.

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The complaint was founded on the statute 1 Jac. 1. cap. 22. sect. 6. which enacts—“that no person or persons using the mystery of tanning leather shall occupy or use the craft or mystery of a shoe-maker, currier, butcher, or of any other artificer, using or exercising the cutting or working of leather:” and on the statutes 9 Anne, cap. 11. and 24 Geo. 3. cap. 19. referring to the first mentioned act, and reciting—“the due execution whereof hath been and is of great importance to the public good and service of this realm, and will very much contribute to the ascertaining and collection of the duties by this act intended to be granted:” from which last words it was contended that the acts were all revenue statutes.The decreet proceeding merely on the statement of the complainer, without any evidence, was in these terms:—Decreet.
“ At Saltcoats, the 5 th of Oct. 1807 years . Upon a complaint at the instance of Iver Campbell, Esq. collector of excise, to the Honourable his Majesty's Justices of the Peace for the county of Ayr, against William Anderson and Company in Beith, for exercising the trade of a tanner along with the trade of a currier, or other cutter of leather, contrary to law, and having in their possession 90 hides, 104 calf-skins, 52 hog-skins, and 5 sheep-skins, all seized by Archibald Douglas, supervisor of excise at Kilmarnock, the said justices, consisting of, &c. &c. having considered the above complaint, and the laws of excise made in that behalf, and having

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Dates.The seizure was made in the end of August, or beginning of September, 1807; and on the 6th October, 1807, the day after the date of the decreet, the goods were sold under it, and purchased up by the pursuers for 120 l . for which sum, with the 3 l . penalty, they brought their action, as above-mentioned, in the Court of Session, in Jan. 1809.23 Geo. 3 cap. 70. 28 Geo. 3. cap. 37.The defenders gave in preliminary defences, founded on certain statutes limiting actions against revenue officers, for matters done by them in that character, in certain cases, to three months, and requiring a month's notice to be given to the officer of the revenue before the action is brought. They further stated, as a preliminary defence, that the Court of Session had no jurisdiction in the matter.May 12, 1810.The preliminary defences were repelled by Lord Woodhouslee, Ordinary, and by the Court.Feb. 8, 1811.Lord Ordinary's interlocutor, Nov. 28, 1812.The cause then came on to be heard on the 28th Nov. 1812, before Lord Gillies, Ordinary, who

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“sustains the reasons of reduction, reduces, decerns, and declares, conform to the conclusions libelled: finds the defenders also liable to the pursuers in repetition of the sum of 123 l . sterling, libelled as having been illegally extorted from them by the defenders, and interest thereof from 11th Nov. 1807, until payment, and decerns: assoilzies the defenders from the claim of damages concluded for, and decerns: but finds them liable to the pursuers in expenses,” &c.
Judgment of the Court, June 14, 1814.The pursuers acquiesced in this interlocutor, and, in the subsequent proceedings before the Court, claimed only the money extorted from them, and the reduction of the decreet. The Court, on advising a petition and answers, adhered to the Lord Ordinary's interlocutor; and, afterwards, on a second petition, and after having directed the argument to be stated in memorials, they adhered to their former judgment. From this judgment the defenders appealed.The following cases, respecting the jurisdiction of the Court of Session, with reference to revenue questions, decided before and since the Union, were stated in the printed case for the Respondents:Cases decided before the Union:— Keith against Murray , 10th Dec. 1675— The Tacksmen of the Impost of Edinburgh against Young and Others , 2d Feb. 1681— Duke of Hamilton v. Laird of Clackmannan , 14th Dec. 1665— Lord Colville v. Feuars of Kinross , 15th December, 1666— Duke Hamilton v. Laird of Allardyne , 6th Dec. 1667— Stewart v. Aitchison , 17th Jan. 1668—

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Fac. Col. p. 41.Since the Union, the following cases have been decided:—Case of Wm. Reid , 19th July, 1765, in which the matter of jurisdiction was particularly considered by the Court—competition between Commissioners of Excise and Creditors of Earl of Northesk , January, 1724 ( Dictionary, vol. 1, p. 25, voce King). Hamilton v. Legrand , 4th Dec. 1733— Ogilvie v. Wingate , 1st Feb. 1791— The Creditors of Burnet v. Murray and his Majesty's Advocate , 7th July, 1754, affirmed in the House of Lords, on 24th Feb. 1755— Locke v. Tweedie , 3d Dec. 1703— Robertson v. Jardine , 6th July, 1802—also the case of Guthrie v. Cowan , 10th Dec. 1807.Respondents' 2d answer.The Court of Session has an undoubted jurisdiction over justices of peace and other inferior courts, where they have exceeded their powers— Countess of Loudon v. Trustees of Ayrshire , 28th May, 1793— Patillo v. Maxwell , 25th June, 1779.Feb. 9, 1818.Lord Advocate and Solicitor General (for the Appellants). 1st, Whether the Court of Session has jurisdiction.—2d, Whether the action ought not to have been brought within the three months limited by the statute.—3d, Whether a month's

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Sect. 6.23 Geo. 3. cap. 70.28 Geo. 3. cap. 37.1st, That depends on whether these are revenue statutes. If they are statutes merely for the regulation of trade, the Court of Session has jurisdiction. If they are revenue statutes, the Court of Exchequer alone has the jurisdiction by stat. 6 Anne cap. 25. The stat. 1 Jac. 1. cap. 22. if originally intended for the mere regulation of the trade, was made a revenue stat. by the act of 9 Anne, cap. 11; and the stat. 24 Geo. 3. cap. 19. declared that these extended to Scotland. They did so extend by the act of Union; but doubts had been entertained; the purpose of removing the doubts was the better collection of the revenue, so that this was equal to a positive declaration that these were revenue statutes. The Court of Exchequer was instituted by the 6th of Anne, cap. 26. which enacts, “that all and every the revenues and duties, &c. and all informations, actions, &c. touching or concerning the before-mentioned matters; and all prosecutions, remedies, and accounts, for or concerning the same, &c. shall be within the jurisdiction and authority of the said Court of Exchequer in Scotland, and hereby are annexed to the said Court.” There is no statute giving any such jurisdiction to the Court of Session, and the only alteration has been with respect to the powers given to the justices. The cases of Ramsay v. Adderton , Kilk. 308; and Duke of Queensberry v. Officers of State , Fac. Coll. Dec. 15, 1807, were decided upon this view of the jurisdiction. ( Lord Eldon , C. The question in this country in

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Surtees v. Allan , ante . 2 vol. 254.With respect to the argument that the statutes did not extend to Scotland, because the proceedings there mentioned were unknown in Scotland, the case of Surtees v. Allan , decided in this House, was an answer. This personal action is a nullity, because the money was paid into the Exchequer

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27 Geo. 3. cap. s. 36.43 Geo. 3. cap. s.28 Geo. 3. cap. 27.23 Geo. 3. cap. 70. s. 30.The Court of Session may quash the order where the question is whether it is a revenue case or not; but it is clear that these are revenue statutes, and the language of the Court in Ramsay v. Adderton , and Duke of Queensberry v. Officers of State , might be quoted against their own judgment in this case. Supposing these to be revenue statutes, the action was clearly precluded by lapse of time and want of notice. The officer had no control over the justices; and he would be in a very hard situation if this personal action could be sustained against him while the decree was in force, and no sufficient ground to reduce it had been laid in their summons.Irving v. Wilson , 4 T. R. 485.Vid. Cates , q. t. v. Knight .— Cates v. Mellish , 3 T. R. 442.Sir S. Romilly and Mr. Warren (for the Respondents). This was merely an action to recover money, taken from the Respondents without lawful warrant, and therefore received to their use. And it is unnecessary to enter into the question, whether these were or were not revenue statutes; for, admitting all this, yet the decreet being a nullity, they paid the money in their own wrong, and had a right to recover it. They say there is good ground in our summons to reduce the decreet. But we did not know what the decreet was. They refused to show it; and all we knew was, that under colour of some decree, they seized our property. The single question is whether our money has not been taken from us without any authority

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Surtees v. Allen , ante vol. 2. 254.Lord Advocate .—I cannot state any process for that purpose. If the Court of Exchequer were to issue an injunction, the consequence might be a general warrant to commit the Barons. The fact is, that the Exchequer has the exclusive jurisdiction in revenue matters; the Court of Session an exclusive jurisdiction in common questions; and the Court will consider whether it has jurisdiction without attending to any application by another

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Newcastle Fire Company v. Mc. Morran , ante vol. 3. 264.It could not; Newcastle Fire Company v. Mc. Morran , where the policy was misdated in the summons. In the Queensberry cases, the summons against the Duke of Buccleuch was amended after issue, and they might have amended their summons here so as to lay the ground of irregularity. But they had not done it, and there was no issue after the decreet was produced. ( Lord Eldon , C. What is the meaning of illegally extorted in the Lord Ordinary's interlocutor?) The meaning I take to be, that the justices were wrong in point of law, and that the officer had no right to make the seizure; and that the goods having been sold under

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Judgment.Lord Eldon (C). This was a proceeding for the reduction, if I may so express it, of a conviction against Anderson and Co. under certain acts of parliament, for carrying on the business of tanning and currying leather at the same time. There were several questions in the case. 1st, Whether this was a valid conviction, as being a conviction, in a criminal proceeding against Anderson and Co. 2d, It was objected not only that this was a conviction in a criminal proceeding against Anderson and Co. by that description; and that though a description of that kind had been held good in civil proceedings, it was necessary in a criminal proceeding to know with certainty who are or are not convicted; but also that the conviction was bad for various other reasons apparent on the face of it. But the Appellants contended that, supposing they were wrong in all this, the Court of Session had not jurisdiction, however unjust the conviction in itself; and that the provisions of the statutes as to the time within which the action might be brought, and as to the month's previous notice to the officer had not been complied with. I have considered the case with a great deal of attention; and although there are difficulties in it, I am of opinion, upon the whole, that the Court below is in the right, and that there is not reason sufficient to reverse this decision.Judgment affirmed .