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Scottish Court of Session Decisions >>
Angus Sinclair v James Hamilton, and Others. [1769] Mor 13130 (17 January 1769)
URL: http://www.bailii.org/scot/cases/ScotCS/1769/Mor3113130-040.html Cite as:
[1769] Mor 13130
Malversation of Justices of Peace. Poinding by an Officer of Excise, in virtue of their decree.
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Angus Sinclair change-keeper in Hunthill, on an information from the Collector and Supervisor of Excise at Glasgow, was tried and fined for retailing foreign spirits without a licence, by Mr Hamilton and other Justices of Peace for the shire of Lanerk, and his effects having been poinded, in virtue of their decreet, he brought an action of oppression and damages against the Justices, and against the Officer of Excise and Constable who distrained.
Alleged for the pursuer, 1mo, The information against him was irregular and informal, as it comprehended a number of delinquencies, unconnected with each other, and committed by different persons. 2do, He was not regularly cited. 3tio, The evidence was not taken down in writing. 4to, The action was prescribed.
Answered for the Justices, 1mo, The including a variety of offences and offenders in one information, is agreeable to practice, and the complaint was such as is generally exhibited. 2do, The pursuer was cited in the usual manner. 3tio, Practice has authorised the not taking down a proof in writing, and such practice is founded on public utility. 4to, The action was instituted with, in the term of prescription.
Charged against the Officer of Excise, and Constable, 1mo, That their entering the pursuer's house, under authority of a writ of assistants, without information of prohibited goods, was irregular and illegal, 2do, That the distress following on the decreet of the justices was a spuilzie, as there was neither a warrant to distrain, nor were the formalities of a poinding observed.
Answered, 1mo, An officer who misuses a writ of assistants can only be punished by the Court of Exchequer. 2do, When an offender refuses to pay, the law allows a distress and sale of the offender's goods, by act 12th Charles II. referred to in acts 16th and 24th George II.
The Lords sustained the defence proponed for the Justices, Collector, and Supervisor, and assoilzied, but sustained action against the Officer of Excise and Constable, and allowed a proof with respect to the execution of the poinding.
Reporter, Barjarg.Act. Crosbie.Alt. Sol. Dundas.Clerk, Gibson.
Fac. Col. No 84. p. 149.
