Justice Of Peace Court, E...
-tfslns wvas an action brought to recover the sutm of 3001. of auction duty, payable upon the tale of the lands of Moirbouse, in East Lo- thian, wbich wete exposed to sale in the.Exchange Coffee-rooms, in August, 1813. The ease for the prosecution was stated by' Mr. CULaLre. At the sale in qucetion thc lands were knocked down to a tMlr. licighton ; atsd npon that occasion a person protested against the sale, on the pretence that the exposer had not a proper title. The purchaser, -notwithstanding, subscribed his ofrer, by doing which the transuc. tion was completed. It was true that he afterwards refused to imple- ment the transaction ; and having been charged to do so upon diligence raised on the articles of roup, he removed the case into the Court of Session, where the question of title was never brouight to a decision. But by the sale the duty had plainily bcen incurred * that sale hacd been regularly conducted and concluded; and with the subsequent proceedings of the parties the Excise had nothing to do. No doubt by the 11th sectfoR of the act of Geo. 1ll. it is declared that it shall be lawfal to the auctioneer to demand the duty from the expoter - and in the event of the sale being voided from want of title, tie rmay state hi8 case to the justices, 'who are, empowered to dleclde as tbe'v shallseeproper. Here, however, it had not been instructed that there wasawant of title; and suilicient time had elapsed for re. medying any defect which might have existed. Besides, no appli. cation had been made to the Justices in terms of thie statute. By a.iother section of the act, it is declared, that the duty becomes a charge against the auctioneer the moment of knocking down with thel hammer ; from which it is plain that the duty is paytable upon the sale, and not upon the ultimate formal conveyance of the property. AMr. JEF'FREt, for the defendant, contended, that the statute aul- thorized every clause in the articles of roup which was not evasive of its own enactments. By the articles of roup under which the lands of Aluirhouse were exposed, ic was declared that the offerer pre- ferrel should, in the event of his failing to deliver the bonid required for the payment of the price, forfeit every right and claim that he had acquired. The sale at thebest, therefore, was one :ub mnodo; and be. came voided by forfeiture. Leighton, the purchater, consulted the Dean of Faculty respecting the validity of the expoter's title; and the opinion which that gentlemnan gave was, that the title was not good. Leighton tvas charged, however, at the instance of the exposer, to implement the conditions of roup and he, in consequence, car- I ried the cause te the Court of Session but, notwil hstaniding all the endeavours made by the exposer, he could not obtain a decision until Leighton hadl absconded. That every thing which could be done had really been done to comnel that person to implement thie bargain, he was prepared to instruct. The defender eave notice of the sale to the Excise in teris of tbe act * but, upon hit; stating the cireum- atances, they deferred their claim until 1817, when they applied. to the expoier, whose a>gent aga:in repretented the circumsttazces, and the Excise, in consequence, again stayed proceedings till u;ow. By applying to the exposer, the Excise substantially assumed that person to be their debtor; and as lie has since become in- solvent, the defender, through the delay vwhic4 has occurred, lhas lost the benefit of his recourse. It was evidelttlv the design of the Legislature to fix the duty upon property in transitz from one owner to another, and not upon an inchoate attempt at sale w1hich turns out unsuccessfully. The 11th sec. of che act, relied upon bv the prosecutor, does not apply here, for that section refers to the case of an auctioneer who has already paid the dutv upon a salt voided from want of title, while here the auctioneer claims to be re- lieved of tde duty owdo ea'ceptionis. In proof ihat the Legislature intended that the duty should attach only to actual tcansfers of pro- perty, he referred both to the clause excepting frorn duty a sale: Mate void from want of title, and a clause making the same excre- tion of a sale where the peopertv exposed ha- been Purchased by the exposer himself, or some one ror iimn. The lands of Mluirimoese were afterwards privately disposed of to a nerson, other than i'tieh- ton; and, owing to the doubts whichi had been cast upon the title, they sold fair only 7,0001., though the price offerecd by Leighton was 9,0001. The fact of this second purchaser having reccived a title to the lands and being actually in possession of them, was insuffic.kn; to show that the first sale was a miere abortive proceeding. It was true, the Legislature had made no provisions for the auhseqtient in- solvency of a purchaser; but then it supposed the sale to have been completed by an lniplemnert of its conditions. Alr. CULT.eE2 replied. He observ ed, th.t the defender's ease was undoubtedly a hard one, and were lie to stats it to the Treas try, in all probability relief woald be afforded to bim, but the officers of Excise had no alternative, and must disclharge their dutv. He proceeded to combat Alir. Jeffrey's argtments; and referred to an opinion given by the Honourable Henry Erskine, and AMr. .lohn Clerk, to this effect, that the duty was chargeable upon a sale whict, the parties had afterwards agreed to cancel; which opinion bad been concurred in by Sir Satnuel Romilly and Sir Arthur Pigot. Mr. JExFYs'xy remarked, that he had no disposition to impugn that opinion, which was a very soundl one; but it was not at all ap- plicable. Between the case of two partes to a sale serceing to resile from it, (a case which afforded every opp r:unity of a fraud), and that of a conditional tale, which one of tthe parties did what he could. but in vein, to compel the otber to implement, there was a broad and obvious distinction. The Justices present(GE:onGE TAIT' Eeq., and Sir P.WALcEn) decided that, under the circunistances of the case, the duty was not chargeable. i: J USTIC OF PBA CrE Cte 2T, AbwX.nunoi. A EM. 18. _ T-TR soLr cTonC OF rXCZsE AtGA1S9T MWlrAV