Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. III.

Ignorantia Juris.

Sir John Gordon of Invergordon, Bart
v.
Captain John Forbes of New Factor upon the annexed estate of the late Earl of Cromarty

Date: 12 February 1766
Case No. No 17.

Bona fides found not to protect against statutory penalties.

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The estate of Cromarty, lying mostly in the shire of Cromarty, became forfeited to his Majesty, by the attainder of George Earl of Cromarty, and was, by statute 25th Geo. II. annexed to the Crown. Captain Forbes was named factor for the public on the estate of Cromarty, and acted as such for many years; he was neither proprietor nor superior of any lands in the county of Cromarty; but, in several acts of Parliament appointing commissioners of supply for that county, Captain Forbes was named as a commissioner, and designed ‘Captain John Forbes of New, factor upon the annexed estate of Cromarty;’ and, in consequence of being so named, he acted with the other commissioners, when occasion required.

Sir John Gordon exhibited a complaint to the Court of Session against Captain Forbes, for recovering penalties incurred by Captain Forbes acting as a commissioner of supply, without being possessed of the qualification of L. 100 valued rent, required by law; and the Court, 7th August 1765, found he had no title to act, and was liable in the penalty; but, upon advising a petition for Captain Forbes, with answers for Sir John, the Court, 18th December 1765, ‘sustained the defence of bona fides pleaded for Captain Forbes, and assoilzied him.’

Pleaded, in a reclaiming petition for Sir John Gordon, No person can pretend to be in bona fide, when transgressing a public law; such bona fides can only be deduced from a supposed ignorance of the law: But it is an established maxim, ignoratia juris neminem excusat; and this maxim, applied in the strongest manner to the present case, as the very acts of Parliament, which contained Captain Forbes's name, and under the authority of which alone he could pretend to act, would have satisfied him, if he had but looked at them, that he had no title to act, not being possessed of a legal qualification; which amounts to this, that the very commission, under which he presumed to act, contains a prohibition against his acting, notwithstanding of which, he acted as if legally qualified; and, in these circumstances, there is no room for the defence of bona fides.

But, even supposing that Captain Forbes had acted bona fide, that defence cannot, in this case, be listened to. In questions of this nature, the jurisdiction of the Court is purely ministerial; the statute has created the offence, and defined with precision wherein it consists, and, with equal accuracy, fixed the punishment that must be inflicted; and, therefore, if the offence is actually committed, the Court cannot liberate the offender from the penalties. The act 1701 inflicts certain penalties for wrongous imprisonment; a person, ignorant of law, may counteract that statute, without intending so to do; but, it is believed, the Court would not, on that account, think that the person transgressing could be liberated from the statutory penalties; and, therefore, Captain Forbes's supposed bona fides cannot, in this case, be listened to, as a defence sufficient to relieve him from the penalties he has incurred, by acting contrary to law.

Answered for Captain Forbes, In our Scots acts before the Union, and for many years after the Union, no particular qualification in land was required; and numbers of persons were named commissioners ratione officii, as factors, bailies, tutors, &c. and sometimes an alternative nomination of the heritor himself, or another for him in his absence; and, in this very county of Cromarty, in the late supply-acts, it has been the practice to appoint factors to act in absence of their constituents; yet the legislature never could mean, that factors, thus conditionally appointed, should be heritors, and as such have qualifications. Captain Forbes's case is more favourable than any private person's factor; the estate of Cromarty is forfeited; there is no proprietor who can possibly attend the meetings of the commissioners; the factor is therefore the only person who can attend to the interest of the estate in that particular; and, being named virtute officii, it cannot be thought that the law meant to require his being possessed of the qualification of an heritor.

But even if it could be maintained that the law did require his having a legal qualification in valued rent, still the bona fides, in this case, must afford sufficient defence. Captain Forbes does not plead that ignorance of the law is any excuse, or that any person who transgresses a clear public statute can be presumed to be in bona fide; but what he maintains is, that, if he has transgressed, he has been misled by the legislature itself, by the general opinion of the country, and by the decision of this Court in the case of Wick, 1st January 1729, Sinclair contra Dean of Guild of Wick*. He saw himself appointed a commissioner in the county, under a character inconsistent with the notion of his being an heritor, or having valuation in the county; and, by the case of Wick, he saw that persons named ratione officii were entitled to act without any other qualification; and it has been the practice, in most counties, that persons named virtute officii have acted without any other qualification, and free from apprehension of being liable in penalties: Where a statute enacts penalties, it inflicts them as a punishment for a transgression; and it would be contrary to justice to inflict punishment where there was no intention to transgress.

“The Lords altered the last interlocutor, and found Captain Forbes liable in the statutory penalties.”

For Sir John Gordon, Lockhart, Alexander Wight, and Robert Blair. For Captain Forbes, Ilay Campbell, et Alii. Fac. Col. No 108. p. 372.

* Examine General List of Names.