Scottish Court of Session Decisions

On the 26th March 1888 a cab and horse were seized near Gourock by the coastguard officers, as being used in the conveyance of uncustomed tobacco, and an appraisement of seizure with regard thereto was returned to the Court of Session as the Court of Exchequer in Scotland.

Joseph Crookshanks, a cab proprietor in Greenock, lodged a claim for the goods so seized, and an information of seizure was lodged against Crookshanks at the instance of the Lord Advocate, containing the following count — “That on or about the 26th day of March 1888, at or near Lavan Point, near Gourock, in the county of Renfrew, the said cab and horse were made use of by John Smith, cabman, Greenock, presently a prisoner in the prison of Edinburgh, or other person or persons to Her Majesty's Advocate unknown, in the importation, landing, removal, or conveyance of 343 pounds weight or thereby of manufactured tobacco, or other uncustomed, prohibited, or restricted goods liable to forfeiture under the Customs Acts, contrary to section 202 of the Customs Consolidation Act, 1876 (39 and 40 Vict. cap. 36), whereby the said cab and horse became forfeited or liable to forfeiture.”

Section 202 provides—“All ships, boats, carriages, or other conveyances, together with all horses and other animals and things made use of in the importation, landing, removal, or conveyance of any uncustomed, prohibited, restricted, or other goods liable to forfeiture under the Customs Acts, shall be forfeited.”

In defence Crookshanks averred—“Not known and not admitted that the horse and cab in question were made use of in the importation, landing, removal, or conveyance of manufactured tobacco, or other uncustomed, prohibited, or restricted goods liable to forfeiture under the Customs Acts. Explained that upon said 26th March 1888 a horse and cab were ordered of the present claimant Joseph Crookshanks, who is a cab and carriage hirer and funeral undertaker in a large way of business, in the ordinary course of his said business, by Walter Walker, coachman to John Macdougall, Esq., Rosemount, Greenock, and the horse and cab which form the subject of the present claim were in accordance with said order despatched on the night of the said 26th March 1888 from the claimant's premises in charge of John Smith, night coachman in the claimant's service. This was done in good faith, and in the usual course of business, and the destination and particular use to which said horse and cab were to be put were unknown to the claimant. It is further explained that the said John Smith had been in the claimant's employment for about seven years, and the claimant had every reason to believe from the opinion he had formed of his honesty and trustworthiness that the horse and cab intrusted to his charge would not be used except in the legitimate exercise of the claimant's said occupation. The said John Smith was on 30th May 1888 tried before Lord Fraser and a special jury on an information at the instance of the Lord Advocate, for Her Majesty's interest, on a charge of being knowingly concerned in carrying, removing, depositing, or concealing, or dealing with certain uncustomed goods, to wit, the said 343 pounds of tobacco, when the jury unanimously found for the defender.”

The defender pleaded—“(1) The information being irrelevant, should be dismissed. (2) The subjects seized not having been made use of in the manner libelled, should be restored to the claimant. (3) Separatim—The subjects seized having been made use of in the matter libelled without the knowledge or responsibility of the claimant, he should be assoilzied from the declaratory conclusion of said information and the consequent penalty.”

The Lord Advocate pleaded—“(1) The defences being irrelevant, except in so far as denying that the said horse and cab were made use of as libelled, should be repelled except to to that extent. (2) The defender's third plea being unsound in law, should be repelled.”

The Lord Ordinary ( Fraser) on 5th July 1888 pronounced the following interlocutor:—“Repels the first and third pleas-in-law stated for the claimant Joseph Crookshanks: Allows to the Lord Advocate a proof of his averment that the cab and horse mentioned in the information were made use of in the importation, landing, removal, or conveyance of 343 pounds weight or thereby of manufactured tobacco, or other uncustomed, prohibited, or restricted goods liable to forfeiture, and to the claimant a conjunct probation.

“ Opinion.—The offence in this case was the using a cab for the conveyance of uncustomed goods. It is not necessary that the prosecutor should prove, in order that that cab shall be forfeited, that the owner of it knowingly lent his cab for the carriage of such goods. The fact that it was used for that purpose by his servant, or by the person to whom he hired it out, is all that requires to be proved. There are certain offences for which penalties are imposed by the Customs laws, in which the scienter, on the part of the offender, must be proved, but this is not one of them. That a person may be convicted of an offence under the Excise or Customs laws committed by a servant against his master's knowledge, nay, against his positive injunctions, is settled in various cases, such as in Advocate-General v. Matheson in 1852, before a full bench of the Court of Exchequer, as reported in Douglas' Manual, p. 256, and in Advocate-General v. Grant, July 20, 1853, 15 D. 980. I therefore repel the first and third pleas stated by the defender. And the only matter for investigation is as to whether the cab belonging to the defender was used for the carriage of uncustomed goods. Of course the rule as to liability to forfeiture cannot be carried to an extreme. A conviction, for example, could not be obtained against an omnibus proprietor into whose omnibus a person carrying uncustomed goods had entered without the knowledge of the conductor that his passenger had on his person goods of that description. But that is not the present case, which is the employment of the cab for the sole purpose of carriage of the goods, and if that be proved it is enough.”

The defender reclaimed, and argued—The charge was irrelevant. It was necessary to aver and prove knowledge on the part of the owner or his servant of the unlawful purpose to which his property was put before such property could be forfeited. The general principles of

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equity demanded such a qualification of the strict words of the statute. The analogy of proceedings against persons for penalties was in favour of such a modification— The Queen v. Woodrow, May 1, 1846, 15 Meeson & Welsby, 404, per Baron Pollock; Attorney-General v. Hurel, May 29, 1843, 11 Meeson & Welsby, 585; Greenhill v. Stirling, March 19, 1885, 12 R. (Just. Cases) 37.

The Lord Advocate argued—This was not a prosecution for penalties against a person, but a proceeding in rem—against a cab and horse. The only condition of forfeiture in the statute was that the articles should have been used in the conveyance of uncustomed goods. In proceedings against persons it was not always necessary to prove knowledge as part of the offence. If the defender could make out a case of hardship he might have his property restored under section 209 of the Act— Advocate-General v. Matheson, May 17, 1852, Douglas' Manual, 256; Advocate-General v. Grant, July 20, 1853, 15 D. 980; Blewitt v. Hill, November 9, 1810, 13 East. 10; 21 Geo. III. cap. 39, preamble and section 2; Attorney-General v. Norstedt, July 22, 1816, 3 Price, 97; Queen v. Bishop, February 28, 1880, 5 Q.B. Div. 259; Modern Practice of the Exchequer, 1739, 2nd case.

At advising—