Alexander Campbell, - Appellant; Duncan Campbell, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 1840 |
| Date | 13 February 1840 |
| Court | House of Lords |
English Reports Citation: 7 E.R. 1030
House of Lords
Mews' Dig. i. 333, 364. S.C. Macl. and R. 387; 12 Shaw, 870.
[166] ALEXANDER CAMPBELL,- Appellant; DUNCAN CAM.PVEL,L,Respondent [May 1, 2, 1837; June 3, 1839; Feb. 11, 13, 1840]. [Mews' Dig. i. 333, 364. S.C. Mad. and R. 387; 12 Shaw, 870.] Partners in a licensed distillery, convicted of a breach of the revenue laws, consented to a mitigated penalty ; after payment of which, one of them brought an action against the others for indemnity, on the ground that he was innocent of their illicit acts. The defenders pleaded in defence that, as all were involved in the delict, no one could claim indemnity or contribution from the others. The Court gave no judgment on that defence, but sent the cause to trial by a jury; the Judge's opinion was not taken on it at the trial, nor were exceptions tendered. The jury found a verdict that the defenders were indebted to the pursuer for the sum paid by him towards the penalty. The Court being afterwards moved, upon notice " for a rule to show cause why the verdict should not be set aside and a new trial granted," refused " a rule to show cause why the verdict should not be set aside," and subsequently made orders applying the verdict, and decreeing against the defenders for 1030 CAMPBELL V. CAMPBELL [1837-40] VII CLARK & FINNELLY. payment by them jointly and severally, to the pursuer, of " the sum found by the verdict, with interest, as libelled."- Held, that the order refusing to set aside the verdict and grant a new trial was not, but that the orders applying the verdict were subject to appeal to the House of Lords. (Vide infra, [7 Cl. and F.], p. 178.) Semble, that the partner who was not a participator in the delict was legally entitled to indemnity from those who were, although he consented to the penalty. (Infra [7 Cl. and F.], p. 182.)-But held, that the Appellant, by having omitted all opportunities of taking a decision on the legal question in the Court below, and being unable to appeal against the verdict, was precluded from having a decision on that question from this House. (Infra, [7 Cl. and F.], p. 184.) The summons in the action having claimed a certain sum from the defenders, jointly and severally; and the verdict having found them simply indebted in a different sum " as libelled :" Held, that there is no inconsistency between that verdict and the judgment decreeing against the defenders, jointly and severally, for payment of the sum so found, " as libelled." ( [7 Cl. and F.] p. 186.) Where an appellant has succeeded in dismissing a petition against the competency of his appeal, and the appeal is afterwards dismissed with costs, on the hearing on the merits, those costs do not include the costs of discussing the question of competency, unless the consideration of them has been reserved. This was an appeal against interlocutors of the Court of Session in Scotland, pronounced in an [167] action raised there by the Respondent against the Appellant and other persons of the names of M'Andrew and Hunter. All the parties except Hunter were partners in a licensed distillery at Easdale, in Argyleshire, from the beginning of the year 1820 to the end of 1822, when the partnership was dissolved. Hunter had been their operative distiller. The partnership concern was in six shares, of which the Appellant had two, the Respondent two , and the two M'Andrews one each. The Respondent resided about forty miles from the distillery, and left that business to be managed by the other partners, the chief management devolving on the Appellant, who resided on the spot. These partners and their operatives, in the course of carrying on the business, committed a breach of the revenue laws by purchasing quantities of illicit whiskey, which they mixed with the spirits produced at the distillery. The result was that, on information given to the Excise-office by Hunter, who quarrelled with his employers, proceedings were taken in the Exchequer in Scotland against the whole company, for penalties amounting to 10,500. The course of proceeding there is the same as in the Exchequer in England. All the partners joined in defence, put in a plea of not guilty, and tendered evidence at the trial, which took place in December 1823, and ended in a verdict of conviction against them all for the full amount of the penalties. They afterwards memorialized the officers of the Crown, and succeeded in getting the penalties mitigated to 3000. To this latter proceeding the Appellant and Respondent were the active parties. Writs of extent were issued, and the sum of 3000 was levied, partly out of the proceeds of the partnership property, partly from the [168] property of the M'Andrews, and the residue from the Respondent. In April 1827, the Respondent instituted the action in which this appeal has been taken, against the defendants before mentioned, averring his own ignorance and their knowledge of the illicit practices carried on at the distillery, and concluding for a total indemnity at their hands in respect of the said mitigated penalty, and for payment to him of what he had been obliged to pay to the Crown, namely, the balance of the penalty after deducting what was recovered under the levies on the distillery effects and from the other partners. The balance so claimed to be due to the Respondent from the defenders' conjointly and severally amounted to 1171 5s. Id., with interest from March 1827. Defences were given in by the several defenders, and a record was made up on revised condescendence and answers, with relative notes of pleas for each party. The Appellant's defence and pleas were that the action was in itself unfounded, " First, because it arises out of an illegal transaction, and therefore the pursuer is 1031 VII CLARK & FINNELLY. CAMPBELL V. CAMPBELL [1837-40] not entitled to maintain an action for payment of the penalty awarded against him, with his own consent, by the Court of Exchequer; more especially as he was aware of the illegal proceedings on behalf of the servant of the company, before any seizure of the company's effects was made by the Crown: SecandH/y, even if the pursuer can maintain the action at all, the defender denies that he is conjunatly or severally liable in the sum pursued for, or that the pursuer paid the whole amount of penalty and expenses as alleged in his summons." The pleas entered for the survivor of the M'Andrews were in substance the same as the Appellant's. Hun-[169]-ter's defence was that he was a servant acting under orders of his employers, and that he had received part of the penalty from the officers of the Crown. Although the defences raised the question of relevancy of the action, none of the parties applied to the Court to dispose of that question previously to the trial of the following issues, which were approved by the Lord Ordinary: - " It being admitted that the pursuer, and the defenders, Alexander Campbell and Donald M'Andrew, and the late John M'Andrew, were partners of a company for the purpose of distilling spirits at Easdale, and that the defender, Robert Hunter, was brewer or distiller to the said company; and that on the 17th day of December 1823, the said company were found liable in a penalty of 3000, as being guilty of contravening the revenue laws: - " Whether the defenders, or any of them, were guilty of the said contravention of the said laws, whereby the said company were subjected in the said penalty, and obliged to pay certain expenses? And whether the defenders, or any of them, are indebted and resting owing to the pursuer in the sum of 1171 5s. Id., or any part thereof, with interest thereon, as the balance of the said penalty and, expenses? Or whether the said contravention of the said laws was with the knowledge of the pursuer ?" These issues were tried at Edinburgh in March 1834, before the Lord President (Boyle) of the Second Division of the Court of Session, and the jury found for the Respondent on all of them, " and that the defenders are indebted and resting owing to the pursuer in the sum of 1059 5s. Id., with interest as libelled." The Appellant afterwards moved the Second Divi-[170]-sion of the Court upon this notice, " for a rule to show cause why the verdict...
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...point at issue. Senior counsel for the pursuer helpfully drew my attention to Campbell v Campbell (1840) 1 Rob 1 (reported more fully at 7 Cl & F 166), in which one of the partners in a distillery business which had reached a settlement for payment of a penalty after conviction for purchasi......
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