The Factor on the Sequestrated Estate of John Leslie, v. James Tweedie
Date: 3 December 1793 Case No. No 28.
The officers of the revenue suiug for debts due to the Crown, are preferable to the landlord claiming on his hypothec over the iuvecta et illata.
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The factor on the sequestrated estate of John Leslie, let to Robert Bee, from Martinmas 1790 to Martinmas 1791, a brewery, which was a part of the bankrupt estate.
Robert Bee having fallen in arrear of duties to the Crown, James Tweedie, supervisor of Excise, before Martinmas 1791, obtained a warrant from the Justices of Peace, in virtue of which Bee's whole brewing and malting utensils were laid under distress for payment of the debt.
The factor on Leslie's estate having, two days prior to this event, obtained a sequestration of the same subjects, for payment of the current year's rent, presented a bill of suspension and interdict against the officers of the Crown, praying that they might be prohibited from disposing of the effects, till the landlord's hypothec should be satisfied.
The bill having been passed, Tweedie
Pleaded; By the English statute, 15th Cha. II. c. 11. Parliament 13. which extends to Scotland, in consequence of the 18th article of the union, the utensils used in a brewery are liable to all claims arising from the excise laws, in consequence of the manufacture therein conducted, even although they are not the property of the brewer; and by 28th Geo. III. c. 37. a general enactment was introduced, giving the public revenue the same right, not only over utensils' but over all materials and commodities in the possession of every manufacturer or dealer whose trade is liable to the excise laws; a fortiori, therefore, must the Crown be preferable, where, as in the present case, the competition relates to the property of the manufacturer. Besides, the Crown's preference was established by the judgment of the House of Peers, (15th June 1792), reversing the decision of this Court, 29th June 1791, Ogilvie against Wingate, No 27. p. 7884.
Answered; The statutes of Cha. II. and Geo. III. were merely intended to constitute the Crown a creditor over subjects which at common law it could not have attached. The landlord's preference for his hypothec, being a real right, is reserved by 6th Anne, c. 26. and these statutes do not take it away, either directly or by implication. A single judgment of the House of Peers is not necessarily a precedent which this Court is bound to follow. Besides, the case of Ogilvie related to the landlord's hypothec over the fruits of the ground, and not to that over the invecta et illata.
The Lord Ordinary found, “That the different statutes founded on by the officers of the Excise, go no farther than to give the Crown a preference for the revenue duties, in a competition with the personal creditors of the bankrupt, and do not infringe on the landlord's right of hypothec, as established by the laws of Scotland before the Union.”
On advising a reclaiming petition and answers, several of the Judges considered the question as determined by the judgment of the House of Peers, in the case of Ogilvie; but at the same time expressed regret at that decision, as they still thought that the landlord's hypothec, as a real right, was saved from the prerogative process of the Crown.
On the other hand, it was observed, that by the express words of the 6th Queen Anne, real estates only were saved from the Crown's preference, and declared attachable in no other form than according to the rules of the Scots law. That a mistake had arisen by confounding a real right in the landlord, with a real estate in the debtor, the latter of which alone came within the reservation of the statute; and that consequently, although the landlord's hypothec might be a real right in him, yet the subject over which it extended was personal, and as such liable to the preference of the Crown.
Some of the Judges were of opinion, that the Crown's preference was also established by the statutes Cha. II. and Geo. III.; for as these statutes (it was observed), had made it preferable even to a right of property, it must also be preferable to every subordinate right of hypothec.
The Court, by a great majority, “sustained the petitioner's preferences in behalf of the Crown.”
Lord Ordinary, Ankerville.For the Crown, Lord Advoeate Dundas.Alt. Honyman.Clerk, Mitchelson.
Fol. Dic. v. 3. p. 368. Fac. Col. No 81. p. 177.
