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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Struijs and Others v. Hughes [1897] ScotLR 35_640 (5 November 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/35SLR0640.html
Cite as: [1897] ScotLR 35_640, [1897] SLR 35_640
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SCOTTISH_SLR_Court_of_Session
Page: 640↓
Court of Session Outer House.
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v.
Facts:
The cargo of a ship was seized by the revenue officials and the master was tried before the Justice of Peace Court on a charge of having contraband goods on board. He was acquitted, and in his absence the Revenue officials obtained from the justices who had tried the case a certificate that there was reaasonable or probable cause for the seizure of the cargo. Such a certificate is, by section 267 of the Customs Consolidation act 1876, pleadable in bar of an action of damages brought against any person on account of the seizure. The master of the ship appealed to the Court of Exchequer against the granting of this certificate. Held ( per Lord Stormonth Darling) that as no action of damages had been raised, the appeal was not warranted by section 17 of the court of Exchequer (Scotland) Act 1856, and was incompetent.
This was an appeal at the instance of R. Struijs, master of the ship “Cosmopoliet,” to the Court of Exchequer, under the provisions of sec. 17 of the Court of Exchequer (Scotland) Act 1856. That section provides—“In all cases when at the date of the passing of the Act a writ of habeas or a writ of certiorari might have competently issued fram the Court of Exchequer, to the effect of removing any proceedings before, or warrant granted or issued by any inferior court or magistrate or public officer, to the said Court of Exchequer, in order to examination, it shall be competent to the party against whom such warrant is directed, or to either of the parties to such proceedings, to bring up such warrant or proceedings to the Court of Session, sitting as the Court of Exchequer, to the like effect as by such writ of Habeas or writ of certiorari before the passing of the act”—“and that by lodging a note of appeal in terms of Schedule F.”
Struijs had been tried before the Justice of Peace Court at Wick on a charge at the instance of Ellis Hughes, collector of customs, of a contravention of section 179 of the Customs Act 1876. On this charge he was acquitted.
Hughes obtained a certificate from the Justice to the effect that there was reasonable or probable cause of seizure.
Against this certificate Struijs appealed to the Court of Exchequer.
On 5th November 1897 the Lord Ordinary (
Opinion.—“The appellants were brought up before the Caithness Justices on a summary complaint charging them with a contravention of sec. 179 of the Customs Act of 1876, and on 10th August last, after a protracted trial, they were acquitted. On 31st August in the appellants' absence, and indeed (as they say) after they had left the country, the Justices granted the certificate which appears on the print, bearing to be granted under sec. 267 of the Act. It is against this certificate that the present appeal is brought.
Of the appellants' argument against the validity of the certificate I shall only say that it is a very formidable one. It is to the effect that sec. 267 permits the granting of such a certificate only where there is an information or suit relating to a seizure, and that the complaint in this case had nothing to do with a seizure, but was purely a proceeding in personam for recovery of penalties.
But the appellants' interest to attack the certificate has plainly and admittedly no relation to the particular proceeding in which it was granted, for that resulted in their acquittal. Their interest will arise only in the event of their raising an action of damages against the Crown, and the Crown pleading the certificate in bar of the action. That is declared by sec. 267 to be the sole use of such a certificate.
Now prima facie the proper Court to determine whether there is a good bar to an action is the Court before which the action is brought. It is contrary to one of the best established rules of judicial procedure to decide such a question before the action is brought and before the plea is stated.
Accordingly, the first question is whether this appeal is competent under sec. 17 of the Exchequer Act. I am of opinion that it is not. The section substituted for the old writs of habeas and certiorari a note of appeal to the Lord Ordinary in Exchequer Causes, and makes the circumstances in which either of these writs could have been granted in 1856 the test of the competency of the new proceedings. The writ of habeas has plainly nothing to do with the case, but both sides of the bar favoured me with an argument of research into the old practice in Scotland and the present practice of England governing the writ of certiorari. I think it may be conceded to the appellants that this writ was in 1856 the appropriate mode of removing into the Court of Exchequer any proceedings before an. inferior court with a view to their examination on points of competency and regularity. The Latin form of writ used in Scotland before 1729, which was unknown to Lord Fraser when he decided Dodsworth's case ( 14 R. 23, and see p. 241), but which Mr Kennedy's industry has discovered, seems to have been confined to cases where an officer of Customs was prosecuted in an inferior court and craved the Court of Exchequer itself to assume the future conduct of the proceedings. But I do not doubt that a certiorari must have been equally competent at the suit of the
Page: 641↓
Now, in this particular case the appellants cannot plead miscarriage, because they have got a judgment of absolvitor. When that was pronounced they had no further interest in the proceedings, and took no further part in them. If the Justices had afterwards done anything so flagrant as to attempt to recal their judgment of absolvitor, I daresay an appeal would have been competent, because that would have been an unwarrantable attempt to prejudice the appellants in that particular case. But the granting of a certificate, however irregular in itself, which did not profess to affect the final decision, seems to me to stand in a different position. Let its validity be determined when, if ever, it is attempted to be put in force. I conceive that a statutory right of appeal ought not to be stretched beyond the obvious purpose for which it is designed.”
Counsel for the Appellants— Ure, Q.C.— M'Lennan. Agents— Macpherson & Mackay, S.S.C.
Counsel for the Respondent— Sol.-Gen. Dickson, Q.C.— Kennedy. Agent— R. Pringle, W.S.