Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Lanarkshire of an action in which the question was, whether the pursuer was entitled to recover from the defenders, the Police Commissioners of the burgh of Wishaw, certain sums paid by him as assessments upon a brick-work belonging to him for the year from 1859 to 1863. The ground of the demand was, that the sums in question had been paid in error, viz., upon the erroneous assumption that the brick-work assessed was within the burgh; and the claim accordingly resolved itself into one of condictio indebiti; and the question was, whether such a claim could lie in the circumstances of this case, and against the present Police Commissioners. The action was brought as a set off to a claim by the Commissioners for arrears of assessment alleged to be due for different subjects within the burgh.

The defender made the following statements:—That Wishaw was some time ago created a burgh under the Police and Improvement (Scotland) Act 1850, and the provisions of that Act were afterwards adopted. That in carrying out the Act under section 69, there is annually made up a roll or book of assessment showing the yearly rent or value of the whole premises in the burgh liable to be assessed under the Act, and according to which the assessments under the Act are levied, if not appealed against. This roll or book of assessment is made up from the valuation roll of the burgh, compiled by the countyassessor under the Valuation Acts. Under the Valuation of Lands (Scotland) Act 1854 (17 and 18 Vict., c. 91, sec. 5) the assessor transmits yearly to each person included in his valuation, whether as proprietor, tenant or occupier, a copy of every entry in such valuation roll, wherein such person is set forth either as proprietor, tenant, or occupier. At the same time there is also sent a notice to such person that if he considers himself aggrieved by such valuation he may appeal, in the manner set forth in the Act, or he may obtain redress by satisfying the assessor that he has well founded ground of complaint. Should there be no ground of complaint, these notices are returned to the assessor signed by the party to whom they were sent. Immediately after the appeals against the valuation are disposed of, the valuation roll is authenticated under the Act, and is in force for the year from the Whitsunday preceding to the Whitsunday following. It is from the valuation roll so authenticated that the assessment roll of the burgh is made up. In pursuance of his duty, the assessor sent to the pursuer the returns necessary by the Act for the years 1859–60, 1860–61, 1861–62, 1862–63, 1863–64, in which the property of the Green Brick-work was entered as in the burgh of Wishaw. In due course he received these returns from the pursuer duly signed as correct. After having made up the assessment roll of the burgh, the collector, in pursuance of his duty, sent a notice each year to the pursuer, informing him of the amount assessed, and giving him notice that should he have any ground of complaint he must lodge an appeal within a certain time. As no appeal was lodged until the assessment for the year 1863–64 was imposed, the roll each preceding year was in terms of the Act authenticated, and the assessments levied. It was not till July 1863, after he had paid the assessment for the year 1862–63, that the pursuer discovered or pretended to discover his error in having returned the brick-work as being within the boundaries of the burgh of Wishaw, and he then demanded back the assessments that he had paid during that and the three previous years. That the pursuer was a Commissioner of Police of the said burgh during the years 1859–60, 1860–61, 1861–62, and laid on the assessment which he afterwards paid, and the effect of including the brick-work in the burgh was to relieve him from the police assessment of the county in respect of these premises. That the error of including the said brick-work in the valuation roll of the burgh

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was committed by the pursuer himself, and he is not entitled, by repayment of the assessment paid thereon, to take advantage of his own wrong. That each year's assessment is imposed for the purposes of that year, and the accounts of the burgh are closed at the end of each financial year, and cannot be gone back again. That the Commissioners of the burgh have no power under the Act to apply the assessment for any year in repayment of assessments of former years alleged to have been erroneously exacted, as the only mode under the Act is by appeal when the assessment is imposed, and before it was levied, and the pursuer recognised this rule by appealing against the assessment of 1863–64, when he was relieved.

The defender pleaded:– The pursuer is barred personali exceptione from insisting in this action. There is a mode of appeal pointed out by the statute, and no other mode of redress is competent. The error of including the brick-work in the valuation roll of the burgh was committed by the pursuer himself, and he is not entitled, by repayment of the assessment paid thereon, to take advantage of his own wrong. The pursuer had the means of the knowledge of the fact within his power, and he is not entitled to take advantage of his own gross negligence in not having used these means.

A proof was allowed by the Sheriff-substitute (Veitch) of an averment made by the defender, that the pursuer had returned his brick-work as within the assessable limits after he discovered the mistake upon which his action was founded. The Sheriff (Alison) extended this proof to one to each party, of their respective averments that were not admitted.

The Sheriff-substitute assoilzied the defender by the following interlocutor:—“The Sheriff-substitute having considered the interlocutors of the 16th June and 23d November last, and heard parties' procurators on the proof led, and closed record: Finds it proved that the pursuer was assessed on the brick-work in question from 1859 to 1863 as being in the burgh of Wishaw: Finds that the pursuer appealed against the assessment in 1863 on the ground that the subjects assessed were not within the burgh, and was successful in his appeal, and was relieved: Finds that he now claims repetition for the assessment of the four preceding years on the same grounds on which he appealed: Finds, in point of law, that the assessment having been laid on under an Act of Parliament, which provides the mode of relief, if any of those assessed feel aggrieved by the imposition, and that the pursuer not having availed himself of these means, and having the same opportunity as others of ascertaining whether his lands were within the burgh, that he is barred now from claiming repetition of those bygone assessments: Therefore dismisses and assoilzies the defender from the conclusions of the action; finds him entitled to expenses, of which allows an account to be given in, and remits the same, when lodged, to the deputeclerk of court, as auditor, to tax and to report, and decerns.”

The pursuer appealed.

The Sheriff (Alison) recalled this interlocutor, holding that the plea under the statute was inept in respect it was a remedy only applicable to those within the assessable limits. In regard to the second plea for the defender, his Lordship found—“That the present pursuer was legally negligent in not ascertaining the fact, which, by due diligence, he might have done, that the property assessed was beyond the burgh of Wishaw, and that, in consequence of that negligence, he is barred from suing for repetition of the assessments under the present action; that this plea is also, in the circumstances, inapplicable, seeing the Wishaw collector of rates is here substantially in petitorio striving to maintain an assessment which has been paid for a property not liable thereto; and that, supposing there was negligence on the pursuer's side in not declining to pay the sum assessed for, and explaining the reasons of said declinature, there was at least equal negligence on the part of the collector in making the demand, which, in the circumstances, was unauthorised and not legally exigible, and therefore that the negligence, being equal and opposite on the two sides, may be thrown out of view altogether, and there remains only to the defender the untenable plea that he is entitled to recover and retain money which he was not legally entitled to have demanded and received: Finds, separatim, that it is decided law that the plea of ignorance and bona fides in making a demand for an assessment will not furnish a defence to a burgh against an action for repetition of its amount— Magistrates of Dunbar v. Kelly, 26th November 1826: Therefore alters the interlocutor complained of in point of law; and, in respect the sums sued for are not disputed, except on the legal grounds above disposed of, decerns against the defender in terms of the conclusions of the libel: Finds the pursuer entitled to expenses, of which allows on account to be given in, and remits the same to the clerk of court at Hamilton to tax and report, and decerns.”

His Lordship added the following note:—“The question of law involved in this action has not met with much discussion in the Scotch courts, where the maxim of the Roman law, ignorantia juris neminem exeusat, has been held to let in all other pleas in support of an action debiti condictis, which are founded merely on ignorance of circumstances. But in England it has been the subject of much and learned discussion, and very considerable variation of decision. It was at one time held that not only ignorance of law but ignorance of fact, which might by due diligence have been discovered, afforded no ground for an action for repetition, or for money had and received, as they call it in England. But in this, as in so many other similar cases, experience has driven the English Judges into the practical adoption of the rule adopted in the Scotch law from the Roman. Thus, in the case of Bell v. Gardner, 21st April 1842, which was an action for repetition of £203 by Mr Bell, the public officer of the National Provincial Bank of England, the question came to be, whether the money in debiti soluta had been paid under a mistake, and whether that mistake might have been discovered on the plaintiff's part. Mr Justice Bayley said—‘There is no doubt as to the rule of law applicable to this case. If a party pay money under a mistake of the law he cannot recover it back; but if he pay money under a mistake of the real facts, and no laches is imputable to him in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money. There being here nothing on the face of the bill to lead him to suppose it was drawn in Ireland, he was not bound to make any such inquiry.’—IV., Manning v. Granger, p. 11. So also in the case of Kelly v. Solari, 18th November 1841; Meason v. Wellsby, ix., 54, it was held by the Court of Queen's Bench, in the words of Lord Abinger, who, in expressing the opinion of the Court, admitted that he, in a previous

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case, had stated the law erroneously to the jury in regard to the amount of ignorance that would bar a party from recovering:—‘That the knowledge of the facts which disentitles the party from recovering must mean a knowledge existing in the mind at the time of payment.’ And Justice Park said in the same case—‘If the money is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been in omiting to use the diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’ This dictum, which was adopted by all the Judges, seems to be decisive of the present case, especially when it is recollected that the burgh of Wishaw is of so very recent erection, and that the pursuer had no reason to suspect that the collector, who best knew the limits of his own burgh, had fallen into any mistake regarding them in the pursuer's case.”

The defender advocated.