Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Boyle and Montgomery, Tacksmen of the Impost, v. Robert Douglas
Date: 22 December 1709
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Boyle and Montgomery, Tacksmen of the Town of Edinburgh's imposition of two pennies on the pint of all ale brewn within their liberties, pursue Robert Douglas, soap-boiler in Leith, for paying the foresaid duty, for any ale brewn within his tenement there.
Alleged,—That his brewing, (though situated locally within the Town of Leith,) was not liable to this imposition, for nothing was made subject thereto but what lay within the liberties of the town and its royalty, either in property or superiority; but his lands of Coatfield fell under none of these denominations, but were mortified lands holden of the Trinity Hospital and the Preceptory of St Antony's Chapel, and so fell not under the Town's gift. And their situation and designaient, as lying infra villam de Leith, imported nothing; for so does the Yardheads of Leith, and yet are not subject to the Town but to the shire; and so is Caldtoun and the back of the Canongate reputed a part of the town, and yet belong to the Lord Balmerino, and never answer to the Town nor Canon-gate courts: and no more does his lands in which his brewery is built; for which he shows a charter flowing from the administrators of the hospital, as his superiors, and repeats a declarator of exemption and immunity from this servitude.
Answered,—They opponed the Town's gift, comprehending the whole lands lying within the Town of Leith, which infallibly takes in his lands with the rest, and has borne cess and all other public burdens with the rest of the houses there; and seasine given to them is by the bailie sent thither by the Town of Edinburgh; and the clerk of Leith is notary thereto, so it is no special different case from the other houses in Leith. And its holding of the hospital signifies nothing to alter the case; for the Magistrates of Edinburgh are still his superiors. And there are sundry lands within burgh holden of Heriot's Hospital, and others again are Temple lands, holden of my Lord Haddington and Torphichen, and yet pay this two pennies on the pint of ale; so the holding of another superior does not exeme, if they lie within the Town's liherties.
Replied,—If the Town of Edinburgh's right to Leith be considered, it will be evident that his lands of Coatfield, (though situated within the Town of Leith,) fall not within their right ¿ for the superiority of Leith being purchased by Queen Mary from the Logans of Restalrig, she disponed it to the Town of Edinburgh. Now, her Majesty conveyed no more than what the Logans had; but so it is, this tenement of Coatfield never belonged to the Logans, who came in place of the Leiths of that ilk, but were mortified to the Trinity Hospital, and so quite of a distinct nature from the rest of the buildings in Leith.
Duplied,—It is a great mistake to think the Town of Edinburgh has no other right to Leith but the Queen's assignation; for they had sundry contracts betwixt them and the heritors of Leith, some hundreds of years before Queen Mary's reign. And Durie, at the 12th March 1630, speaks of a servitude granted to the Town over Leith in the year 1398, in King Robert Ill's time; and in the late debates betwixt Leith and Edinburgh, about their privileges of trade, many other instances were adduced.
The Lords repelled Mr Douglas's defence, and found him liable to the Town's imposition of two pennies on the pint of ale brewn within the tenement of houses lying in Leith, especially considering the tacksmen had been in possession of it from his tenants these many years bygone; reserving his declarator against the Town as accords.
