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OF

CASES

ARGUED AND DETERMINED

In the Court of King's Bench,

IN TIE

NINETEENTH, TWENTIETH, AND TWENTY-FIRST

YEARS OF THE REIGN OF GEORGE III.

BY

The Right Hon. SYLVESTER DOUGLAS,

BARON GLENBERVIE.

TUE FOURTH EDITION, WITII ADDITIONS:

BY

WILLIAM FRERE,

SERJEANT AT LAW.

VOL. II.

Egnider cum colligo argumenta causarum, non tam ea numerare solio,
quam expendere.

CICERO.

London:

PRINTED FOR REED AND HUNTER, LAW BOOKSELLERS,

BELL YARD, LINCOLN'S INN.

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CASES

RGUED AND DETERMINED

IY TIIE

COURT OF KING's BENCH,

IN

TRINITY TERJI,

IN THE TWENTIETH YEAR OF THE REIGN OF GEORGE III.

1780.

assigninent of his etiecis; the

STP ACY and Another, Assignees of Bishop, a

Tuesday, 30th

May. Bankrupt, ugainst Hulse and Others. THIS was an action of trespass against Hulse and Benyon, 1.2. candle:ma,

two justices of the peace, and Burthrop an excise-ollicer, rear for the vina It was tried at the last assizes for the county of Esser, before gie duties, heASHHURST, Justice, when a verdict was found for the plain- rupt, and is cuna tiffs, with £59. 6s. 4d. damnayes, subject to the opinion of the victed after the court, on a case which stated as follows:

A commission of bankrupt was issued against Bishop, (who diubir duties are was a candle-maker) on the 4th of February, 1779, and his attentes pour les estate assigned to the plaintiffs on the 17th of that month ; the and in-terials, in act of bankruptcy having been coinmitted on the 29 h of Ja- the bands of his nuary precedingOn the 4th of March, an information was the may be exhibited against him, before the defendants Hulse and Ben- distanca. yon, for not paying £29. 13s. 2d. the single duties then due and payable, for candles made by him, between the 9th of November and the 25d of December, 1773. On the same day on which the information was exhibited, he was served with a sunimons to attend the justices on the 6th of March, which he VOL. 11.

B

avsiynet ; and

did;

1780. did; and then acknowledged, that the single duties were

due, and unpaid; whereupon they convicted him in the STRACE penalty of double duties, amounting to £59. 6s. 4d.; and against issued their warrant to the defendant Barthrop, and another HULSE. excise-officer, “ authorising and commanding them, and every

“ of them, that upon all the candles, and all the materials « and utensils for making of candles, in the custody of Bishop,

or any person or persons in trust for him, they should levy « the sum of £59. 6s. 4d. recovered against him, for a cer“ tain offence committed by hiin against the laws and “ statutes of excise, whereof he stood convicted;" then directing a sale, if they should not be redeemed within six days ; and if there should be any overplus, to render it to Bishop. By virtue of this warrant, the officers distrained the goods in the declaration mentioned, (being candles, materials, and utensils,) which were before, and at the time of, the distress, in the possession of the plaintiffs, as assignees. When Bishop appeared before the justices, he informed them, that he was a bankrupt, and could not pay the duty; and that his effects had been assigned, under the commission, to the plaintiffs. After the distress, the plaintiffs tendered the single duties to Barthrop, which he refused to accept.

The question was, “Whether the said goods were liable to « be distrained for the said double duties under the circum« stances of this case ?"

There were two arguments; the first in Easter term last, on Friday, the 21st of April, by Mingay, for the plaintiffs, and Erskine, for the defendants; the other this day, by Morgan, for the plaintiffs. Peckham was for the defendants, but the court thought it unnecessary to hear him.

The question turned upon the construction of certain clauses . in the statutes of 12 Car. 2. c. 24. 15 Car. 2. c. 11. and 8 Anne, c.9.

By 12 Car. 2. c. 24. § 45. the justices are authorised and required to issue warrants for levying the forfeitures, penalties, and fines, imposed by that act, (which relates to the excise on beer and other liquors,) on the goods and chattels of the of fender ; and to cause sale to be made of the said goods and chattels, (if not redeemed within a limited time) rendering to the party the overplus, if any be.

By 15 Car. 2. c. 11. § 13. all the brewing vessels, and ntensils for brewing, into whose hands soever they shall come,

and by what conveyance or title soever they shall be claimed, ( 413 )

shall be liable and subject to, and are thereby charged with, all the debts and duties of excise, in arrear, and owing by any person or persons, for any beer or ale made within the said brewhouse ; (that is, the brewer's common and usual brewhouse (a); ) and shall also be subject to all penalties and for

feitures a

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feitures incurred by such person or persons, so using the said 1780.
brewhouse, for any offence against the laws and statutes of
escise ; and it shall be lawful, in all cases, to levy debts and STRACY
penalties, and use such proceedings against the utensils therein against
contained, as it might be lawful to do, in case the debtor or Hulse.
offender using the utensils, had been truly and really the owner
and proprietor of the same.

By 8 Anne, c. 9. (made perpetual by 9 Anne, c. 21. $ 7.)
the excise on candles was introduced ; and by $ 9. of that act,
all makers of candles, who shall refuse or neglect to pay the
duties, are to forfeit double the sum.

The same statute, & 19. enacts, that all the candles, and all the materials and utensils for the making of candles, in the custody of any maker or makers of candles, or of any person or persons, to the use of, or in trust for, such maker or makers of candles, skall be liable and subject to, and are thereby made chargeable with, all the debts and duties, for candles, in arrear, and owing by such maker or makers, for any candles by him, her, or them, or in his or their working house, or places aforesaid, (enumerated $ 6.) made, and shali also be subject to all penalties and forfeitures incurred by sach person or persons so using such work-house, or other place, for any offence against this act, relatiug to the said duties upon candles; and that it shall and may be lawful, in all such cases, to levy debts and penalties, and use such proceedings, as may lawfully be done by this act, in case the debtor or offender were the true and lawful owner of the same.

And, by $ 27, it is enacted, “That all and every the

powers, authorities, directions, rules, methods, penalties, “ forfeitures, clauses, matters, and things, which in and by “ 12 Car. 2. c. 24. or by any other law now in force,

relating to the revenue of excise upon heer, ale, or other “ liquors, are provided, settled or established, for managing,

raising, levying, collecting, regulating, or recovering, ade

judging, or ascertaining the duties thereby granted, or any “ of them, (other than in such cases, for which other penalties and provisions are made and prescribed by this " act,) shall be exercised, practised, applied, used, and put [ 414 ] “ in execution in and for the managing, levying, collecting, “ mitigating, recovering, and paying the said duties upon “ candles hereby granted, as fully and effectually, to all in" tents and purposes, as if all and every the said powers, “ &c. were particularly repeated, and again enacted in the * body of this act.”

After the first argument, Buller, Justice, observed, that it was clear the action would not lie against the justices, because the warrant followed the words of the act of parliament ; and therefore, if the goods distrained were not liable, B 2

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