Page:The English Reports v3 1901.pdf/1389

CAMPBELL V. ANDERSON [1818] V DOW. given a month's notice.) Our memorial below stated that all we [423] claimed was a repetition of our money. They rely on stat. 28 Geo. 3, cap. 37. But that could apply only if the action were brought in the Exchequer, which had jurisdiction, but not exclusively. All the terms of it were applicable to a court where the trial must be by jury. It never could apply to proceedings in the Court of Session. If the action had been brought in the Exchequer, they would have had the advantage of the statute. But it is brought in the Court of Session, to whose proceedings the statute cannot apply. (Lord Eldon, C. You bring your action fifteen months after the seizure, upon this state of facts. They purchased their own goods; and I do not find that you then questioned their right to retain the money; and the money is paid into his Majesty's Exchequer. Can you then, in an action against the individual who made the seizure, recover that money which, before he had notice of your purpose, he paid into the Exchequer It has been decided in this country that the courts are to take notice of the time when the officer is called upon to pay the money into the Exchequer.) He paid it in his own wrong. (Lord Eldon, C. He could not help paying it.) They pro- tested, and he might have stated that circumstance, and that it was alleged that the seizure and conviction were illegal. The delay was in consequence of applications to the Excise Office to settle the matter. The next objection was, that we ought to have appealed to the Quarter Sessions. But it has been decided in Scotland that the juris- diction of the superior court is not taken away, unless by express words, or neces-[424] sary implication; Guthrie ». Cowan, Fac. Coll. 1807; and also in England, Rex v. Jukes, 8 T. R. 542, 544-Rex v. Sparrow, 2 Bur. 1042, 1st, Then we say that this decreet was a nullity.-2d, That the statutes requiring notice and commencement of the action within three months cannot apply to a proceeding in the Court of Session.-3dly, That the jurisdiction of the Court of Session cannot be taken away by general words. But there is another objection, that the action is exclusively triable in the Court of Exchequer. It is clear that the Court of Session has jurisdiction over the proceedings of magistrates, as the Court of King's Bench has here; and, if a decreet is appealed from, though an excise officer is connected with it, the Court of Exchequer has no more power to remove the cause than the Court of Exchequer has here to remove a cause from King's Bench, where the question is whether the powers given to magistrates have been properly executed. And by stat. 6 Anne, cap. 26, the Court of Exchequer is put on the same footing as the Court of Exchequer here. Suppose then an action of trespass brought against an officer of excise in the King's Beneli, or Common Pleas, it was never argued that the officer could plead that he was an excise officer, and not bound to answer A special application must be made to the Court of Exchequer, which might, if they thought proper, remove the cause by a proceeding in the nature of an injunction; not that the Court of King's Bench could not entertain the cause at all, but that the officer has the privilege of being sued in the Exchequer. That is the principle; Crispe e. [425] Campbell, I Anst. 205, N. If it be the privilege of the officer, as Eyre, Ch. B. there states it, the officer ought to apply for it. If he does not, he waives it. In this case they did not apply to the Exchequer, and waived the privilege; and there was one part of the case here so definitely belonging to the Court of Session, that the Court of Exchequer could not remove it: viz. the anthority to quash or reduce the decreet. (Lord Eldon, C. The summons claims two things, a repetition of the money, and damages. The Court has negatived the damages, and given you a repetition of the money and the whole of the expenses. You admit that the claim for damages cannot be supported; but then that demand occasioned almost all the other questions. But how could one part be removed and not the other?) The Court of Session has clearly the jurisdiction over the principal matter, viz. whether the magistrates have properly executed their powers, and the incident follows the principal matter. (Lord Eldon, C. How could the whole have been removed?) Lord Advocate.--I cannot state any process for that purpose. If the Court of Exchequer were to issue an injunction, the consequence might be a general warrant to commit the Barons. The fact is, that the Exchequer has the exclusive jurisdiction in revenue matters; the Court of Session an exclusive jurisdiction in common questions ; and the Court will consider whether it has jurisdiction without attending to any appli- cation by another [426] court, and such an attempt to interfere was never made. The reduction, if the grounds were that these were not revenue statutes, that they had fallen into desuetude, etc., belonged exclusively to the Exchequer and the question is, H.L. III. 1377 60