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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Oakeley v. Campbell and Others [1867] ScotLR 5_9 (6 November 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0009.html Cite as: [1867] SLR 5_9, [1867] ScotLR 5_9 |
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A collector of poor-rates applied to one of the Justices of the Peace of the county for a warrant to poind and distrain the pursuer's goods, who had fallen into arrears. The warrant having been put into execution, the pursuer brought an action of reduction, and also concluded for damages. Held (1) that a warrant to recover rates under the Act 8 and 9 Vict., was a good warrant if signed by one Justice. (2) That an action of damages for a fact done under the Act was excluded by section 88 of the Act 8 and 9 Vict.
The pursuer's goods were poinded and sold for payment of £26 of poor-rates. He brought the present action against the defenders—Campbell, the collector for the parish of Ardchattan, who obtained the warrant; Murray Allan, the justice who signed it; and Carmichael, the sheriff-officer who executed it—concluding for reduction of the warrant and execution, and for damages, laid at £3000. The warrant to poind and sell bore to be granted by Mr Murray Allan, acting as a Justice of the Peace, “as directed by the Statute 8 and 9 Vict., cap. 83, § 88; and 52 Geo. III., cap. 93, 13 and 14.” The certificate upon which the warrant proceeded, and the warrant itself, were in the following terms:—
“I, Colin Campbell, collector of poor and registration rates in the parish of Ardchattan and Muckairn, hereby certify that R. B. Oakeley, Esquire, now or lately at Kilmaronaig, stands duly assessed in the amount of £26, 16s. for the relief of the poor, and 11s. 2d. for registration purposes, for the year from 26th May 1865 to 26th May 1866, payable on the 20th day of December 1865. That such assessments are resting and not duly paid by R. B. Oakeley, Esquire, foresaid, a warrant for the recovery thereof is hereby requested in terms of the statute. Colin Campbell, Collector.”
To Mr Duncan Carmichael, jr. sheriff-officer and justice of peace officer for the county of Argyle.—Whereas it appears from the above-written certificate, that the above person named and designed has been duly assessed to the amount of £26, 16s. for the poor of the parish of Ardchattan and Muckairn, and 11s. 2d. for registration purposes, and which should have been paid on the 20th day of December 1865, and that the said poor and registration rates are resting and not duly paid; therefore I, Thomas William Murray Allan, one of Her Majesty's Justices of the Peace for the county of Argyle, do hereby grant warrant for poinding and distraining the goods and effects belonging to the said R. B. Oakeley, Esquire, and for keeping and detaining the said goods and effects for the space of four days in your custody, liable to the payment of the said whole poor and registration rates in arrear by R. B. Oakeley, Esquire, whose goods and effects shall be so poinded and distrained, and the costs to be paid to you as after directed, unless the owner shall redeem the same within the said space of four days by payment of said poor and registration rates due by him, and costs; and further, I hereby grant warrant, after the expiration of four days, to value and appraise the said goods and effects by two persons to be appointed by you, and to sell and dispose of the same by you, at a sum not less than the value, to be applied, in the first place, to the satisfaction and payment of said poor and registration rates owing by the said R. B. Oakeley, Esquire, whose goods are so poinded; and, in the second place, to the payment of your trouble at the rate of 2s. per pound of the said poor and registration rates, unless the owner shall redeem the same by payment to you of the appraised value within the further space of four days after valuation, and for returning the surplus that may remain to the owner of the said goods and effects; and in case no purchaser appear at the sale, for consigning and lodging the said goods and effects in
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the hands of the Sheriff-depute of the county or his substitute, as directed by the Statute 8 and 9 Victoria, chap. 83, section 88, and 52 George III., chapter 93, sections 13 and 14, in that case made and provided. Given under my hand at Oban, this 20th March 1866 years. T. W. Murray Allan, J.P.”
The pursuer maintained that the warrant was illegal, because the Statute of Geo. III. cited had no bearing on the matter; and that even cap. 95, which was intended, conferred no jurisdiction on Justices of the Peace, still less on a single Justice, but only on Commissioners of Supply. It was also alleged that the warrant was illegally and oppressively carried out.
The defence set forth for all the defenders was the 86th section of the Poor Law Amendment Act, which provides “that all actions on account of anything done in the execution of this Act shall be brought before the Sheriff-Court, and every such action shall be commenced within three calendar months after the fact committed.” The defenders pleaded—(1) No valid reason or ground of reduction is libelled or exists; (2) the warrant complained of having been completely executed, and being incapable of further execution, reduction is incompetent, or at least inappropriate, and the action, so far as reductive, ought to be dismissed; (3) the action, in so far as it concludes for damages, is excluded by 8 and 9 Vict., c. 83, § 86; (4) the pursuer's averments are insufficient in law to support a claim of damages against the defenders.
The Lord Ordinary ( Jerviswoode) repelled these four pleas, and, before answer on the remaining pleas, ordered issues. His Lordship explained the grounds of his judgment in the following note:—
“This case, as it strikes the Lord Ordinary, is one of considerable importance in its general aspect, as well as in its direct bearing on the interests of the respective parties.
The pursuer here seeks reparation for that which he states has inflicted grievous wrong upon him, under colour but outwith the provisions of the law; while the defenders maintain that the claim of the pursuer cannot, in the circumstances which are here presented, be insisted in at all.
As respects the case of the pursuer as presented on the record, and apart from the consideration of the special defences with which he is met, it certainly does strike the Lord Ordinary as a strong one.
A warrant was granted, in respect of default on his part of payment of certain poor-rates, to poind and distrain his goods and effects for payment of these rates, in terms which are quoted in the first head of the condescendence. That warrant purports to have been granted by the defender Allan, acting as a justice of the peace, and under it warrant is granted, in case no purchaser appear at the sale, for consigning and lodging the said goods and effects in the hands of the sheriff-depute of the county, or his substitute, as directed by the statute 8 and 9 Vict., c. 83, § 88, and 52 Geo. III., c. 93, §§ 13 and 14, in that case ‘made and provided.’
The Lord Ordinary assumes that what was probably here intended to be done was, as in exercise of the powers conferred by the 88th section of the Poor Law Act, to bring into operation for recovery of the poor-rates alleged to be due by the pursuer, the statutory machinery provided for the recovery of the land and assessed taxes. The Poor Law Act itself does not specify the special mode of procedure. The selection of that is, within certain limits, left in the first instance to the party desiring to enforce the assessment, and in the second to the sheriffs, magistrates, and other judges, to whom application for a warrant may competently be made.
It seems obvious, therefore, that where a collector of poor-rates, such as the leading defender here, has in contemplation the enforcement of an assessment from any defaulting ratepayer, he is invested with a certain discretionary power as respects the particular class of warrant for which he may apply, in so far as these may vary in relation to the particular public taxes for the collection of which they may be granted.
Accordingly, the defender, the collector here, naturally, and, as the Lord Ordinary thinks, so far properly, applied to the defender Mr Allan for a warrant, and obtained one, which, so far as it is rested upon the provisions of the Poor Law Act, appears correct. But as these, taken alone, do not suffice to specify the special class or character of the warrant desired, reference is made, apparently to supply that requisite, to ’52 Geo. III., c. 93, §§ 13 and 14, in that case made ‘and provided,’ which is thus, so far as respects intended to be imported into the Poor Law Act.
But if this be the intention, it must be carried out with precision, and in its true sense and tenor; and, if used as the warrant and authority for the execution of the diligence of the law, must be fulfilled with due precision. Here, however, a marked failure occurs on the part of the defender. In the first place, while the statute 52 Geo. III., c. 95, is probably intended, reference is in fact made to ‘chapter 93;’ and, in the second place, assuming the reference to be truly to chapter 95, the provisions of the sections 13 and 14 of that Act infer no power whatever on a single justice of the peace, or indeed to any justice of the peace, to grant a warrant such as was here obtained.
Thus, then, as it appears to the Lord Ordinary, the warrant in question is not one which could be legally obtained by the one defender, or granted by the other. And if this be so, the only question which remains for present determination is, Whether the pursuer has set forth a title and interest to insist that he shall be heard on the merits of the claims in which he insists? The opinion of the Lord Ordinary on this matter is, that the action must proceed for investigation on its merits; and, in coming to this conclusion, he has had under his consideration the cases which were on either side quoted and commented on in the course of the discussion.
The case of Ferguson v. Malcolm, 14th February 1850, quoted for the pursuer, tends, as the Lord Ordinary thinks, to support the argument for the pursuer; while that of M'Laren v. Steele, 13th November 1857, which, with others, was referred to for the defenders, can support their case only in the event it shall be held that the defenders here were truly acting under statutory powers conferred by, or by reference imported into, the provisions of the Poor Law Act.”
The defenders reclaimed.
Solicitor-General and Watson for them.
Pattison and Thoms in answer.
At advising—
Lord Justice-Clerk thought the Lord Ordinary's interlocutor ought to be recalled. By section 88 of the Poor Law Amendment Act, a jurisdiction to grant such warrants was clearly conferred upon Justices of the Peace. That being so, he was of
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Solicitors: Agent for Pursuer— W. Officer, S.S.C.
Agents for Defender— Adam, Kirk & Robertson, W.S.
