ftatute 24 Geo. II, c. 40, authorizes the juftices to imprifon $8. the party till fatisfaction be made '. EXECUT SILS. Before per be a war IT is material to obferve, that before any warrant can be made to arrest and imprifon the perfon of the defendant, fonal arreft, there must be first a warrant to seize the utensils in cuftody there must of fuch offender, and the offender's goods; and that warrant rant to feize must be returned: All which must be done, before any war- utenfils and goods. rant can be regularly made to arrest and imprison the defendant's perfon. This method ought to be observed, though perhaps it may be well known by, or fufficiently proved before the juftices, that all the utensils and all the defendant's goods are carried off; for the law being in all cafes very tender of depriving men of their liberty, it is neceffary that all poffible means fhould be used to levy the money on fuch goods, before the person of the defendant be imprifoned. But if a warrant to feize the utenfils and goods be made and delivered to an officer to be executed, and if fuch officer, having made diligent fearch, cannot find any such, then a warrant may be made to arrest and imprison the perfon of the defendant. But then there ought to be a t Mr. Shaw and Mr. Barlow are of opinion, that where there are some goods, but not fufficient for fatisfying the judgment, yet thofe goods may be applied for that purpose fo far as they fhall extend, and the defendant fhall be imprifoned for the refidue. But Dr. Burn observes, that it would be hard that the defendant, who per. haps fatisfics nearly the whole fum, fhould be imprisoned as much as if he had paid nothing; and it hath been adjudged in other cafes, that a man shall not first pay part, and then be imprisoned for the refidue, but fhall either pay the whole, or be imprifoned for the whole. He therefore thinks the diftin&tion may be this; where there is a limited time $ 9. REVIEW. from the justices. duplicate made of fuch warrant; because the keeper of the prifon cannot regularly receive the offender without a warrant, and the officer ought also to have and keep a warrant for his own juftification on of 10 IN matters concerning the revenue, the power of justices is determined by the British ftatutes the justices have no greater or other power than thofe ftatutes have given them; and how their fentences are to be put in execution, is, as we have juft now feen, diftinctly fet forth in the ftatute 12 Car. II. c. 23, 24, and of the 15 CarII, c. 11, by iffuing war rants for levying the forfeiture by distress and sale of goods, and, for want of diftrefs, by imprisonment. But as there is no fuch form known in the law of England as levying nomina (which are not comprehended under goods and chattels), by arrestment and furthcoming, the faftices have no fuch power by the laws of excifer starbib and frit si noin oils novi i I mulisy bus mulisy bus & lesendong e 2 -HOIX IN excife queftions, the rule is, that no appeal lies -APPEAL to the quarter feffions, unless it be exprefsly given by a par ticular statute; for no appeal from them is given by 12 Car. II, c. 24. The power of appealing from the judgment of the juftices, in the exercise of their excise jurisdiction, has been confidered not to attach without being expressly given. KING CHARLES' ftatute, as to offences committed without the limits of the excife office in London, vefted jurifdiction in any two juftices; and in cafe of their neglect or refufal, a power is given to the fub-commiffioners of excife to take cognizance of the matter. And where any one is aggrieved by a judgment of the fub-commiffioners of excife, the ftatute fub-com- exprefsly allows him to appeal to the next quarter feffions", From the judgment of the miffioners. u Shaw Ex. 26th July 1747, Caldwall against M'Dowall. Kilk. p. 310 a $ 45. As the ftatute gives no fuch liberty of appeal from a judg ment of the justices, it is clear that a reliance was placed in them, which is not placed in the fub-commiffioners of excife; who indeed are not to be reforted to at all, unless in the cafe of the refusal of the juftices. The pervading principle of the statute was, on the one hand, never to trust to the judg ment of those perfons who are employed in collecting the duties; but, on the other hand, to make the decision of the magistrates final, in whatever stage of the business it came before them. There was no jealousy that the justices would be too ready to convict; and therefore the fame precaution was not neceffary in giving an appeal from their judgment, as from that of the fub-commiffioners". $9. REVIEW. -APPEAL. petent for BUT there are two or three excife ftatutes which allow When com an appeal from the judgment of the justices to the quarter the justices. feffions. The first that did fo is the 9 Anne, c. 11, relative to hides, skins, parchments, and vellum. It is given also from the judgment of two juftices concerning hides; concerning malt; candles; foap; ftarch; plate licenses; b See Vol. I, p. 279, for the decifion that fixed this point in Scotland. с 9 Anne, c. 11, § 36; and no certiorari fhall be allowed, § 47. d 12 Anne, fef. 1, c. 2, § 37. Perfons aggrieved by any judgment of the juftices, may appeal to the next quarter feffions, giving fix days notice in writing; but if there he not fix days between the order of the juftices and the feffions, the appeal may be at the fecond feffions. I Geo. II, fl. 2, c. 16, § 3. And the feffions may award cofts to either party, to be levied by warrant of the juftices or two of them, on the goods of the party. 12 Anne, A. 1, c. 2, $38. Vol. 11 $9. REVIEW. and in queftions relative to the diftilleries in the highlands of Scotland ". A doubt arofe, whether this general claufe did not take away the right of appeal from the judgment of two juftices, as to malt, hides, and vellum: For clearing this doubt, the 1 Geo. II, c. 16, § 4, declares that, by the above ftatute, the right of appealing in thofe cafes is not taken away. f 23 Geo. II, c. 21, § 37. When any candles, &c. fhall be feized as forfeited, in pursuance of this act, (except fuch feizures where no perfon fhall within twenty days after fuch feizure claim the fame, in which cafe the method of proceeding has been herein before directed), the same, and the said several penalties and forfeitures, fhall be proceeded upon as follows, viz. All informations for the condemnation of fuch feizures, and for the penalties, if the fame were made and incurred within the limits of the chief excife office in London, fhall be heard and determined by three commiffioners of excife, or by the commiffioners of appeals, in cafe of an appeal, and not otherwife; and where the fame fhall be made and incurred out of the limits of the faid chief office of excife in London, by two or more justices of the peace refiding near to the place where fuch feizure fhall be made; and either party aggrieved by the said juftices, may appeal to the justices at the next quarter sefiions, whose judgment shall be final: which faid commiffioners and juftices are required, upon information or complaint exhibited within three months after any feizure made, or penalty incurred, to fummon the party accufed, and the witneffes; and upon appearance, or default of the party accused in not appearing, (upon proof of notice given), to proceed to the examination of the matter of fact, and of the witnesses upon oath, and to give judgment thercon; and and to iffue their warrant for the fale of fuch candles, foap, or flarch, and the packages, veffels, cattle, and carriages, as shall be condemned, and for levying the pecuniary penalties by diftrefs of the goods of the offender; and to make fale thereof, if not redeemed within fourteen days; and for want of fufficient diftrefs, they may imprison the party till fatisfaction be made. & 31 Geo. II, c. 32, § 11. All profecutions for recovery of penalties for offences against this act, fhall be heard and determined either by bill, &c. in any court of record at Westminster, or in the court of exchequer in Scotland, or in fuch manner as hereafter is directed; viz. All profecutions for penalties for offences within the limits or jurisdiction of the chicf office of excife in London, may be determined by three commiffioners of excife in England; and in cafe of appeal, by the commiffioners for appeals or the major part of them, whofe judgment fhall be final; and all profecutions for penalties for offences in any other places in Great Britain, may be determined by two juftices refiding near to the place where fuch offence fhall be committed; and if either the informers or defendants think themfelves aggrieved by the judgments of fuch juftices, it fhall be lawful for fuch informer or defendant, to appeal Bur no appeal in any cause of excife fhall be admitted, $9. till the appellant hath depofited the fingle duty with the REVIEW. commiflioners, or fub-commiffioners, and given fecurity to the commiffioners of appeal, or juftices of the peace, where the caufe is to be finally adjudged, for fuch forfeiture as was adjudged against him; and if upon appeal the judgment be reversed, they shall restore the duty fo deposited, or so much thereof as fhall be adjudged on the appeal, and the party originally profecuting fhail pay double cofts; but if the judg ment be affirmed, the party appealing fhall pay the like costs to the commiffioners. AND all differences and appeals about the excife, fhall be heard in the proper county, and not elsewhere *. UPON appeals to the quarter feffions, in cafes relating to to the next quarter feffion for the county or place where the penalty is incurred, whofe judgment shall be final: and the commiffioners for exeife and commiffioners of appeals, an all juftices of peace respectively, are, upon complaint, or information upon oath, of any offence against this act to fummon the party accufed; and upon his appearance or contempt, to proceed to the examination of the matter; and upon proof, either by confcffion of the party fummoned, or by the oath of one witness, to give judgment, and iffue warrants under their hands for the levying of fuch penalties upon the goods of fuch per fon, and to caufe fale to be made of fuch goods if not redeemed within fourteen days, rendering to fuch perfon the overplus; and for want of diftrefs, to imprifon the party offending till fatisfa&tion be made. h 25 Geo. Ill, c. 22, § 17. All penalties and forfeitures impofed by this aft, fhall be fued for before any two juftices within the county where the offence fhall be committed, whose fentence shall be subject to review only by the justices in their quarter feflions, or before the barons of exchequer; and fhall be fued for by any officer of excife, or any member of the kirk feffion in the parish wherein the offender lives, or by any licenfed diftiller within the county; and the one half thereof shall go to the poot of the parish within which the offence is committed, and the other to the profecutor, of which there fhall be no mitigation; and all such actions fhall be commenced within fix months after the offence committed, i 15 Car. II, c. II. |