of such forfeitures upon the goods and chattels (14) of the offender, and to cause sale to be made, if they shall not

excise, it is enacted by 1Geo. 2. st. 2. c. 16; that every such adjudication shall be executed by warrant of any three commissioners, whether such commissioners shall or shall not be the wommissioners by whom the adjudication shall be made, or whether such three commissioners, were commissioners at the time, when such adjudications be made. s. 5.

(14) For the levying of such forfeitures on the goods and hattels of the offender.] And by 28 Geo. 3. c. 37, All goods Levying of and commodities, in respect whereof any duty of excise is im- nalties. posed, and all materials, preparations, utensils and vessels, in the custody of the maker or manufacturer of such goods, or of any person in trust for him, shall be liable to all the duties in arrear from such maker or manufacturer, for such or the like goods; and shall also be subject to all penalties incurred by him, or any other person, using any warehouse or other place to him belonging, for any offence against any act rebuting to the duties on such goods; and it shall be lawful in such cases to levy such duties and penalties, and use such proBeedings as may lawfully be done in relation to such goods, in ase the persons or offenders were the true owners thereof. s. 21. If a person subject to the payment of excise duties, who is in arrear for the single duties, becomes a bankrupt, and is convicted after the assignment of his effects, the double duties are a lien upon the exciseable commodities, utensils, and materials, in the hands of his assignees, and the commissioners or magistrates may authorise the penalty to be levied,upon all such Commodities, and all the materials, preparations, utensils, and vessels for making thereof, "in the custody of the bankrupt, or any person or persons in trust for him," for by Lord Mansfield, Ch. J. the assignees do by privity stand in the place of the bankrupt they are his representatives, every equity that would affect him, they are liable to: il he has pledged they must redeem, and there cannot be a question, but, that as to this sort of lien, the assignees and the bankrupt are the same; it has been repeatedly so determined. Stracy's, Balse, Tr. Ter. 20 Geo.3. 2 Doug. Rep. Svo. ed. 411.

But if the warrant be issued to levy the penalty on the goods of the bankrupt generally, it will be bad, and cannot justify the seizure of goods in the hands of the assigners. For in the case of Austin v. It hitehoud and others, Slic. Ter. 30 Geo. 3. where the excise officers had seized goods in the nunds uf assignees, by virtue of a warrant directed to them, authorising them to levy the penalty" on the goods and chittels" of the bankrupt generally, thus being after the party had been declared bankrupt, and after the commissioners had executed a pro

Selling the dis

tress.

Distress being insufficient.

Offenders

be redeemed within fourteen days (15); and for want of sufficient distress (16) to imprison the party (17) till satisfac. tion.

visional assignment of his estate, IT WAS HELD by the court, that the proceedings by the excise officers could not be justified,inas. much as the warrant directed the seizure to be made, of the goods of the bankrupt, when it was clear that at the time of the seizure, the goods taken were not the goods of the bank rupt, but were divested out of him by the bankruptcy, and the provisional assignment made under it. 6 Term Rep. 438.

And the Court were also clear, that this warrant could not be supported on another ground, which was this: it directed the seizure of all the bankrupt's goods generally, whereas the excise laws in this place only give a lien on, and authorise the seizure of those goods that are liable to the duties, and the materials and utensils for making the same. Ibid.

(15) And to cause sale to be made, if not redeemed within fourteen days] But by 27 Geo. 2. c. 20, it is enacted, That in all cases where any justice of peace is, or shall be impower. ed by any act of parliament, to issue a warrant of distress for the levying any penalty, he may order the goods distrained to be sold, within a certain time limited in such warrant (so as such time be not less than four days, nor more than eight days), unless the penalty, with the charges of taking and keeping the distress be sooner paid *. s. 1.

(16) And for want of sufficient distress.] If on the warrant to scize the utensils and goods, the officer doth not seize sufficient, to levy the sum directed by the warrant, there may in such case, be made a warrant to seize and imprison the body of the defendant until satisfaction is made for the residue; for the conviction creates a debt, from which the party is not discharg ed, until full payment be made thereof, and the remedies hereby given to enforce such payment,are in the nature of the common law executions.

But as such warrant to imprison must be grounded on the first warrant to distrain; such warrant must be returned,stating either that all the money was not levied thereon, or that no distress could be found, as the case is; and upon this return, such further warrant to imprison may be issued.

(17) To imprison the party.] And if the parties remove out escaping out of of the jurisdiction where the duties were charged, or offences the jurisdic

tion.

The original power of the commissioners is not altered, by this general act, the provisions whereof apply solely to proceedings by justices of peace. The commissioners therefore in all their warrants of distress, de not direct the goods to be sold till fourteen days after their seizure.

And no writ of certiorari shall supersede execution or other proceedings, upon any order made by the justices in pursuance

committed, it is enacted by 18 Geo. 2. c. 26. s. 18, and 5 Geo. 8. c. 43. 8. 26, That the commissioners and justices respectively, within whose jurisdiction any person charged by any at concerning the duties of excise, or any other duties under the management of the commissioners of excise, or who hath committed any offence against any of the said acts, shall be found, may summon, hear, adjudge, and determine, and issue day process or warrant, in the same manner as they might have befte done, in case such offences had been committed within eir risdictions; and if they shall, upon any judgment given by them, issue a warrant of distress, and the person authorized trecute the same, shall make a return thereto, that no suffant distress can be found; it shall be lawful for the said commissioners and justices respectively, within whose jurisdiction the party shall at any time be found, against whom such warrant shall have been issued, upon producing to them such errant, and return thereof, to commit such offender to the next county gaol, till satisfaction be made.

commissioners,

And it is further enacted by 32 Geo. 3. c. 10, That in case any person against whom any warrant of commitment in exeention, commonly called a body warrant, shall be issued by any three commisioners of excise, or by any justice or justices of the peace, shall escape, go into, reside, or be in any other county her place out of the jurisdiction of the commissioners or jusgranting such warrant, it shall be lawful for the three or any justice or justices of the peace, of any ty or place, where such person shall escape, go into, reside, farbe, upon proof being made on oath of the hand-criting of he commissioners or justices granting such warrant, to indorse or their name or names on such warrant, which shall be a cient authority to the person bringing such warrant, and all other persons to whom it was originally directed, to execute such warrant, in such other place, out of the jurisdiction of the commissioners or justices granting the same; and to Burry and convey such offender before the commissioners or jatice or justices who indorsed such warrant, or some other tice or justices of the county or place where such warrant indorsed, who are, by indorsement upon such warrant, to commit the offender to the common gaol or house of correchm of the county or place, where such warrant shall be executed, according to the exigency of such warrant, there to remain until delivered by due course of law.

s. 1.

And no action, information, indictment, or other prosecu lion, shall be brought or prosecuted against the commissioners or justices who shall indorse such warrant; but the party shall VOL. II.

U

Condemnation of seizures,

of the acts. 12 Car. 2. c. 23. s. 16; and 12 Car. 2. c. 24. s. 50.

And by 6 Geo. 1. c. 21, Every seizure of sweets and also every other forfeiture and forfeitures which shall be made by virtue of any act whatsoever, relating to the duties of excise, or to any other duty, under the management of the commis sioners of excise, may be proceeded upon, heard, examined into adjudged, and determined by the same ways, and in the same manner as is hereby directed upon seizures of brandy; and such proceedings shall not be liable to any appeal or certiorari s. 22.

And such method is as follows: that is to say, all such sei zures shall, in a summary way, be heard and determined (18); viz. if made within the immediate limits of the chief office in London, the same shall be determined in a summary way by the commissioners of excise (or any three of them, 1 Geo. 2 st. 2. c. 16. s. 4.); and if made without the limits of the said ercise office in London, then the same shall be heard, adjudged, and determined by and before two justices of peace residing near to the place where such seizures shall be made; which commissioners and justices shall cause the persons in whose custody such seizure was found, to be summoned to appear be fore them, and upon their appearances or default, to examin into the cause of the seizure, and give judgment, and t issue out their warrants for sale; and such judgments shall be final, not liable to appeal, or to be removed by certiorari s. 19, 20.

But where no person, within twenty days next after suc seizure, appears to the officer who made such seizure, to clai the same, then if such seizure be made within the limits of th chief office of excise in London, the officer who made the se zure may, after the expiration of twenty days, cause notice writing, signed by the solicitor of excise, to be affixed at Royal Exchange, signifying the day, and time of the day, the the commissioners of excise will proceed, to hear the matter

* See the case of The K. v. Whitbread, n. (19) infra.

be at liberty to bring or prosecute such suit against the con missioners or justices who originally granted such warran

s. 2.

(17) All such seizures shall in a summary way be hea and determined.] And by 9 Geo. 2. c. 35, All justices of pea before whom any seizure shall be brought to trial or hearin are to proceed to the trial of the merits of the cause, witho inquiring into the fact, form, or manner of making the seizur

such seizure, and to the condemnation thereof; and if such seisure be made out of the limits of the chief office, the officers who shall make such seizure may, after the expiration of twenty days, cause public notice to be given by proclamation, at the next market town to the place of seizure, on the next market day, after the expiration of the said twenty days, of the day and place, when and where the justices will proceed to hear the matter of such seizure, and to the condemnation thereof; is which cases the commissioners and justices respectively are to proceed to examine into the cause of such seizures, and to give judgment for the condemnation thereof; which judgments shall as final, as if the owners of the seizures or persons in whose custody the same were, had been summoned to attend the said Commisioners and justices; and shall not be liable to appeal or to be removed by certiorari. s. 21, 22.

be

But doubts having arisen, whether by the generality of the words in sec. 22. the right of appealing to the commissioners of appeals, from judgments given by the commissioners of excise on account of forfeitures and offences (19) relating to the

(19) On account of forfeitures and offences.] In the case Certiorari, how of The King v. Whitbread, Mic. 21 Geo. 3. Ld. Mansfield far taken away id, that this clause speaking of forfeitures, and adding, by the acts. and offences relating to the duties of excise, shews that the Jegislature did not by the words forfeiture and forfeitures in Geo. 1, mean specific forfeitures only; but also pecuniary ritures; and that by mentioning appeals only in this explanatory clause, and not certioraris (which are spoken of in these breath in the act of Geo. 1.) it seems plain, that the legislature intended by 6 Geo. 1, that certioraris should be taken away, and that the right of appeal only should remain. Doug. 8vo. edit. 551.

And as the powers of the commissioners and of the justices of the peace are the same in every point of view, other than in respect to the limits of their respective jurisdictions, it seems, that whenever the statutes take away the certiorari, in the case

This was a motion, for a rule to shew cause, why a certiorari should e to renove a conviction by the commissionersof excise, for the double beer, into the court of King's Bench-(Note, the certiorari for the let such convictions by justices, is expressly taken away by 12 Car. 23. s. 36. and 12 Car. 2. c. 24. s. 50); and the court were clearly of an, that in such case, the certiorari did not lie; but if it did, it ought be granted upon cause shewn; and as the affidavits did not proceed any alleged want of jurisdiction, but contained objections to the conon on the merits the court would not grant the certiorari, if they power to do it; for such objections are properly the subject matter of al, and that remedy ought to be resorted to. 2 Dougl. 8vo. edit.