Scottish Court of Session Decisions

Subject_1 PART I.

BURGH-ROYAL.

Alexander Martin and Others,
v.
The Magistrates of Aberdeen

Date: 25 February 1801
Case No. No. 8.

Upon a change in the form in which an article, subject to custom, is sold within a royal burgh, the Magistrates are entitled to levy the duty from it in its new shape.

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The Magistrates of Aberdeen were accustomed to levy weigh-house dues on the tallow sold by the butchers within the burgh, when they sold it privately, as well as when they exposed it in the public market, and had it weighed in the public weigh-house.

By a table, published by the Magistrates in 1777, it is declared, That “all tallow, butter and cheese, brought to the market for sale, are liable in payment to the tacksmen of the weigh-house of 2d. Sterling per stone of twentyeight pounds avoirdupois;” and “all the inhabitants are prohibited from weighing, or allowing to be weighed, in their houses, or any where else, to the prejudice of the public weigh-house, any pork, beef, tallow, butter, cheese, wool, or any other article liable in weigh-house dues, under the penalty of 5s. Sterling far each transgression, to be paid to the tacksman or collector of the weigh-house dues.”

Formerly, the butchers refined the tallow before selling it, and the dues were paid about it, after undergoing this operation.

But, upon the date of the table, a practice had commenced, which has since become general, for the butchers to sell, by annual contract, their whole tallow in its rough state, to tallow-chandlers and soap-boilers within the burgh; and the tacksman of the customs was not in use to demand any weigh-house dues for it. The consequence was, that the weigh-house duty on tallow had become almost wholly unproductive.

To remedy this, the tacksman of the customs in 1798 brought an action before the magistrates, against Alexander Martin and other butchers, for the weigh-house dues of tallow sold by them within the burgh, from 1st June 1769 to 29th April 1778. In this action, the magistrates “found that the weighing dues on tallow, which are clearly and unequivocally established by the act of council of 19th April 1777, and table produced, cannot be evaded by any alteration in the mode of selling, if the same be regularly and timously demanded; but in respect it is affirmed by the defenders, that these dues have not been in use of being levied for several years past, and that the pursuers have not brought any proof of the contrary, assoilzied the defenders from the present process, and, decerned; reserving to the pursuer to prosecute the defenders for the weighing dues on tallow, incurred since the date of citation in this cause, which may be considered as sufficient intimation of the intention of levying these dues, &c. in time coming.”

The butchers having resisted payment even for the future, the tacksman, in 1799, raised a second action, in which the magistrates “found that the weighing-dues on tallow in question are clearly and unequivocally established by the act of council 19th April 1777, and table produced, and cannot be evaded by now selling it in its rough state, whereas it formerly may have been in use to be sold in a molten state, if it be at all sold in the town of Aberdeen, as no distinction betwixt rough and molten tallow is warranted by the act of council, and table.”

The magistrates, at the same time, published another table, declaring “all fat and tallow” subject to the duty in question.

Upon this the butchers brought an action of declarator, concluding to have it found, that the magistrates had no right to levy any duty upon rough tallow; and that refined tallow was subject to it only when sold in public market, and weighed in the public weigh-house; and that, even under these circumstances, freemen were liable only in 1d. a-stone.

The Lord Ordinary repelled the defences, in respect “that the Magistrates decline offering any proof of the exaction claimed on rough tallow, being formerly levied by their tacksman.”

In a reclaiming petition, the Magistrates

Pleaded: The Magistrates are authorised, by the various royal charters, confirmed by act of Parliament, to levy petty customs; Rob. I. 10th December 1319; James, 6th August 1601, and July 1617; Cha. I. 1638; act of Parliament, 17th November 1641. Under this authority, they were in use to levy the duty in question on all the tallow sold within the burgh, whether in open market after being weighed at the public weigh-house, or elsewhere.

Accordingly, the table 1777 makes no distinction, and, provided the article be sold within the burgh, the place of sale must be immaterial; 1st June 1790, Stuart against Magistrates of Edinburgh (not reported). Indeed, the advantage resulting from a public weigh-house, where attendance is constantly given, would be defeated, if encouragement were held out not to frequent it.

True, the butchers formerly sold the tallow in a refined state, but the change in their practice in this respect, can afford no room for an exemption from payment, even although preceding tacksmen may have been inattentive in levying it.

Nor is this to be considered as a new exaction; neither the amount, nor the article on which it is charged, being different, but merely a regulation necessary for the preservation of an old one, the power to make which is inherent in the right to the duty itself; 29th June 1786, Fergusson and others against Magistrates of Glasgow, No. 108. p. 1999. 18th December 1799, Magistrates of Edinburgh against Fleshers, No. 6. supra.

Answered: In the charters founded on by the defenders, the right of levying petty customs is limited by use and wont. It is admitted, that the claim for duty on rough tallow is not supported by practice; and it is the province of the Legislature alone to impose a new burden on the subject; 22d February 1775, Boog and Thomson against Magistrates of Burntisland, No. 103. p. 1991. 15th June 1781, Todd against Magistrates of St Andrew's, No. 106. p. 1997. The table 1777 relates only to tallow actually exposed for sale in the public market, and at any rate is not obligatory, in so far as not sanctioned by usage.

Observed on the Bench: The right to exact petty customs is part of the original constitution of all the royal burghs in Scotland. It cannot signify whether the commodity be sold in the public market or in shops, nor in what shape it is exposed. The butchers cannot by an act of their own, acquire an exemption

The Lord Ordinary alone remained of opinion, that where, in consequence of an alteration of circumstances, an accustomed duty can no longer be exacted in terminis, the Legislature only can give a substitute.

The Lords assoilzied the defenders. A reclaiming petition was (11th March) refused, without answers, as to the general point, but remitted to the Lord Ordinary to inquire further as to the quantum of the duty, and the alleged privileges of freemen with regard to it*.

Lord Ordinary, Meadowbank. Act. Cha. Hay, W. Baird. Alt. Solicitor-General Blair, Burnet. Clerk, Colquhoun. Fac. Coll. No. 222. p. 502.

* Upon an after report by Lord Meadowbank, Ordinary, the Court (6th March 1804) found, that the Table 777 must be the rule, without distinction between “rough and refined tallow, or between freemen and unfreemen.”