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and that is, when the party who claims the benefit of it applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it not as obligatory to the extent, to which it would be obligatory perhaps in the country in which it was pronounced, nor as obligatory to the extent, to which by our law sentences and judgments are obligatory, not as conclusive, but as matter in pais, as a consideration primâ facie sufficient to raise a promise. We examine it, as we do all other considerations of promises, and for that purpose we receive evidence of what the law of the foreign state is, and whether the judg. ment is warranted by the law.”

On Judgments in rem in the Exchequer, and by

Commissioners of Excise.

A JUDGMENT of condemnation in the court of Exchequer, where proceedings in rem have been instituted, is conclusive evidence in any other court, as to all the world, that the goods were liable to be seized (1). The jurisdiction of the court of Exchequer in this case is not only competent, but sole and exclusive: and though no formal or express notice is given to the owner of the goods in person, yet he has sufficient notice to try the point of forfeiture, by the seizure of his property, by the proclamations according to the course of the court, and by the writ of appraisement.

Whether a condemnation by the commissioners of excise ought to have the same conclusive operation, as a judgment of condemnation in the court of Exchequer, has not been clearly settled. In the case of Henshaw v. Pleasance, which was an action of trespass, brought against a revenue officer, for seizing goods supposed to have been irregularly lodged and concealed, a sentence of condemnation by commissioners of excise was offered as conclusive evidence against the plaintiff; but Mr. Just. Blackstone, who tried the cause (1), refused to admit it to that extent, directing the jury that such a sentence was evidence, but not, like a condemnation in the Exchequer, conclusive. On a motion afterwards for a new trial, upon this supposed misdirection, the court of Common Pleas confirmed the Judge's opinion. 6 The reasons and authorities, it was said, relied on in the case of Scott v. Shearman, and other cases of the same kind, extend only to condemnations in the Exchequer, which is the king's supreme court of revenue, but not to the inferior jurisdiction of the boards of excise and customs." . the case of Scott and Shearman. The principle there established is not confined to the judgments of courts of record, some of which are of a very inferior description, but extends equally to every court of competent or exclusive jurisdiction ; and the examples cited by C. J. De Grey, in illustration of this principle, are all drawn from the proceedings in ecclesiastical courts, none of which are classed among courts of record. It seems therefore correct to infer, from the rule established in the Duchess of Kingston's case, as well as from analogy to several cases mentioned in the course of the present chapter, that a sentence of condemnation by commissioners of exeise will be conclusive, on the right of seizure coming incidentally into question in any other court, in all cases where by act of parliament they have a sole or exclusive jurisdiction.

(1) Scott v. Shearman, 2 Black. Rep. 979. Per Ld. Kenyon C. J. in Geyer

v. Aguillar, 7 T.R. 696. Bull. N. P. 244.


From the report of the case of Scott v. Shearman (2), it appears, that the ground of Mr. Just. Blackstone's opinion was, “ that implicit credit ought to be given to any judgment in a court of record, which has competent jurisdiction of the subject-matter, and that the jurisdiction of the court of Exchequer was in such a case not only competent, but sole and exclusive.” The opinions of C. J. De Grey and the other Judges are not reported. They agreed in thinking the judgment of condemnation in the court of Exchequer conclusive evidence of the right of seizure, but it does not appear, whether they thought it conclusive on the ground of its being a judgment of a court of record. Nor is this reason stated as the ground of determination in any of the authorities referred to by Mr. Just. Blackstone. A different principle was certainly established in the case of the Duchess of Kingston (3), where De Grey C. J. in an elaborate judgment delivered the unanimous opinion of the Judges; and it is observable, that he pronounced this judgment within a year after the determination of the court in

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In support of this position, the following authorities may be cited. First, in an action of trover against commissioners of excise (1), for levying the plaintiff's goods by their warrant under statute 12 C. 2. C. 23., the point was, whether, after they had adjudged low wines to be strong wines perfectly made, their judgment could be drawn in question again, so as to make the officers chargeable. The Court gave judgment for the plaintiff, on the ground, that the defendants had exceeded their jurisdiction. Rainsford B. said, that the defendants might well enough have justified by virtue of an authority from the commissioners of excise, who are judges of the fact, and whose authority is not traversable by the plaintiff, and that the plaintiff here must have taken bis remedy by appeal and no otherwise. But if the commissioners exceed their authority, and that appear to the Court, then their proceedings are coram norf judice, and an action of trespass lies. But if that does not appear, it must be otherwise. Hale C. B., and the other judges present, argued to the same effect.

(1) Terry v. Huntington and Others, Hardr. 480., cited by Holt C. J. in Dr.

Groervelt v. Dr. Burwell, « Ld, Raym, 471.


In another case, which was an action of trespass against commissioners of excise ( 1 ) for taking the plaintiff's money, the defendants pleaded not guilty, and gave in evidence their warrant and a judgment against the plaintiff, on an information against him for an offence against an excise law. It was objected on behalf of the plaintiff that this judgment was not peremptory, and that the plaintiff in this action was at liberty to disprove the truth of the matter of fact, upon which the defendants grounded their judgment. But this was denied by the Court, and a distinction was taken, namely, that if the commissioners had intermeddled with a thing which was not within their jurisdiction, then all is coram non judice, and that may be given in evidence upon this action; but it is otherwise, if they are only mis- taken in their judgment in a matter within their cognizance, for that is not inquirable, otherwise than upon an


A third case may be cited to the same effect. In an action of trover for a quantity of tea (2), it appeared in evidence that the plaintiff sent the tea for one Lloyd with a permit, but the porter in his way called at the house of one R., and set it down there, where the defendant, an excise officer, seized it as forfeited, for being brought to R.'s house for R.'s use, without a permit to that place, according to the statute 10 G. 1. C. 10. s. 16. Upon not guilty pleaded, the defendant, to shew that the property was out of the plaintiff, produced a condemnation by the commissioners of excise upon an information against R. for receiving this tea without a permit, which sentence, it was insisted, was conclusive evidence of that fact, being a judgment before a proper jurisdiction. On the other side it was insisted, that the plaintiff was no party to the suit; that R. had nothing to do with the tea; and that, if he made a feigned defence, or, as the case was, made default, yet the plaintiff ought not to be affected by that, but might

(1) Fuller v, Fotch, cor. Holt C. J., Carth. 346. Rep. temp. Holt, 287, s.c.

(2) Roberts v. Foriune, cor. Lee

C. J., sittings after Easter term 1742,

Hargr. Law Tracts, p. 468. n. from Ford's MS.


shew, that this was a case not subject to forfeiture. But Lee C. J. said, “ The judgment of forfeiture is a judgment on the thing itself. How the tea came to R.'s house was a matter proper for the consideration of the commissioners; and, if the plaintiff was willing to have defended the suit, he might have come in pro interesse sun, which as he has not done, his property is bound. There is no more in this than the common case, namely, that courts of law pay such deference to the judgment of each other in matters within their jurisdiction, that the first determination by a proper authority ought to prevail : so that, the tea being forfeited, the property could not be in the plaintiff.” And upon this the plaintiff was nonsuited.

An acquittal in the Exchequer was considered by Lord Kenyon, in the case of Cooke v. Sholl (1), to be conclusive evidence of the illegality of the seizure. That was an action of trover for several pipes of wine seized by the defendant for want of a permit. At the trial of the cause, the plaintiff gave in evidence a record of acquittal in the court of Exchequer. The defendant then insisted, that, under the circumstances of this case, the permit had expired, before the seizure was made; and Mr. Just. Heath, who tried the cause, was of that opinion; but, on its being suggested, that there had been a different determination in the court of Exchequer, he reserved the point for the opinion of the court of King's Bench, with liberty to enter a verdict for the defendant, if it should be adjudged for him. When the case came before the Court, Lord Kenyon thought the record of acquittal precluded all reasoning on the construction of the permit: but as the question respecting the judgment of acquittal was not upon the record, and the only question was on the construction of the permit, a verdict was entered for the defendant. This case, therefore, has not determined, that an acquittal in the

(1) ST.R, 255., and see a case in ja Vin. Ab. (A. b. 22.) l. 1. cor, Price B. acc.

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