Oakeley v Campbell and Others
| Jurisdiction | Scotland |
| Judgment Date | 06 November 1867 |
| Docket Number | No. 5 |
| Date | 06 November 1867 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jerviswoode. R.
Diligence—Warrant—Poor—Poor-Law Act, sec. 88, and 52 Geo. III. c. 95, secs. 13 and 14.—
The Act 52 Geo. III. c. 95, authorises any two Commissioners of Supply, the Sheriff or Sheriff-substitute, to grant warrant for recovery of assessed taxes.
Held (1) that a warrant for recovery of poor-rates, bearing to proceed on the above statutes, was effectual, though signed by one Justice of the Peace only; and (2) that a mistake in the reference to the latter statute, as c. 93, was immaterial, as the reference was unnecessary.
R. B. OAKELAY was assessed for the relief of the poor of the parish of Ardchattan in £26, 16s., and 11s. 2d. for registration purposes (under 17 and 18 Vict. cap. 80, sec. 50), for the year 1865-1866.
These assessments not having been paid, Campbell, the collector of poor and registration rates, granted a certificate to that effect, and requested a warrant for the recovery thereof, in terms of the Poor-Law Act. Mr Murray Allan, a Justice of Peace for Argyleshire, thereon granted warrant ‘for poinding and distraining the goods and effects belonging to Mr Oakeley, as directed by the statute 8 and 9 Vict. cap. 83, sec. 88; and 52 Geo. III. cap. 93. secs. 13 and 14, in that case made and provided.’
This warrant was executed, and some cows belonging to Mr Oakeley were sold under it.
Oakeley raised this action, concluding for reduction of the warrant and the execution of poinding, and for damages. The action called as defenders Colin Campbell, the collector of poor-rates, Mr Carmichael, the sheriff-officer who executed the warrant, and Mr Murray Allan, the Justice of the Peace who signed the warrant.
The grounds of reduction were that the warrant was illegal, and not authorised by the statutes, because (1) it was granted by one Justice of the Peace only; (2) the reference to 52 Geo. III. cap. 93, was erroneous, that statute having nothing to do with the subject. The summons also concluded for damages for the injury done to the pursuer's feelings and credit by issuing and executing an illegal warrant, and for certain irregularities in the poinding.
The Act 52 Geo. III. cap. 95, sec. 13, enacts, ‘that in case any person or persons shall not pay the several sums charged upon him, it shall be lawful to and for any two of the Commissioners aforesaid.… or for the Sheriff-depute or Substitute for such shire or stewartry, and they are hereby required respectively, under the penalty of £10 sterling upon certificate made to them, or either of them, by the sub-collector.… that such duties are resting and not duly paid, to issue and grant a warrant under their hands for the said sub-collector recovering the said duties by poinding and distraining the goods and effects of any person mentioned in such certificate,’ &c. …
The Poor-Law Act 8 and 9 Vict. cap. 83, sec. 88, enacts, ‘that the whole powers and right of issuing summary warrants and proceedings, and all remedies and provisions enacted for collecting, levying, and recovering the land and assessed taxes, or either of them, and other public taxes, shall be held to be applicable to assessments imposed for relief of the poor; and the Sheriffs, Magistrates, Justices of the Peace, and other Judges may grant the like warrants for the recovery of all such assessments in the same form and under the same penalties as is provided in regard to such land and assessed taxes, and other public taxes.’
Section 1 enacts, ‘that the following words and expressions when used in this Act shall, in the construction thereof, be interpreted as follows, except when the nature of the provision or the context of the Act shall exclude or be repugnant to such construction: (that is to say) the word “burgh,” &c., and every word importing the plural, shall be applied to one person or thing as well as several persons or things.’
Section 86 of the same Act enacts, ‘that all actions on account of anything done in the execution of this Act shall be brought before the Sheriff-court, and every such action shall be commenced within three calendar months after the fact committed, and notice in writing of such action, and of the cause thereof, shall be given to the defender one calendar month at least before the commencement of the action; and no pursuer shall recover in any action for...
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