The Privileges of Burghs and Burgesses. - Monopolies.
Incorporation of Barbers of Edinburgh, v. M'Duff and Menzies
Date: 1 December 1738 Case No. NO 61.
A non-residing burgess has not the privilege of taking apprentices for the freedom of the burgh; and is not entitled to carry on his trade by means of apprentices or others.
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Daniel M'Duff had been admitted a freeman of the incorporation of barbers of Edinburgh, and had practiced the trade for several years. He accepted of the office of tide-waiter at Leith, and went with his family to reside there. George Menzies his nephew, who had been a journeymen with others in the trade, opened a shop, without entering burgess. He was prosecuted. M'Duff put his own name upon the sign-board, and entered into an indenture with Menzies.
The Dean of Guild and Council found ‘That the said Daniel M'Duff, as he is not a resident burgess, has not the privilege of taking apprentices, for the freedom of the burgh or the incorporation; and that he is not entitled to carry on the trade of wig-making or barber craft, by the said George Menzies; and therefore prohibited and discharged the said George Menzies from exercising said trade, until he purchase his freedom of the town and incorporation.’
Lord Drummore awarded suspension of this judgment.
In a petition it was pleaded, That M'Duff's name on the sign-board, and the indenture entered into, were a device to protect Menzies; and a variety of circumstances were adduced which evinced this: That besides, it was inconsistent with the nature of the duties of a burgess, to be non-resident; therefore, while non-resident, he could enjoy none of the privileges. Acts of the town council were quoted, particularly one 16th March 1660, to show that burgesses non-resident forfeited their privileges.
In answer, it was argued, That the sentence of the Dean of Guild, which had been suspended, had no respect to the alleged device; and that the acts of Council, founded in contracted ideas of commerce, were in desuetude: That M'Duff's absence was merely temporary.
In the course of the proceedings, M'Duff was removed by the Board of Customs from Leith, to a distance in the north, whence it was evidently out of his power to perform the burgh services of watching, warding, &c.
The Court altered the Lord Ordinary's interlocutor; and found the letters orderly proceeded.
For the Barbers, Jas. Ferguson.For M'Duff, Pat. Haldane.
Fol. Dic. v. 1. p. 118. Session Papers in Advocates' Library.
*** Lord Kilkerran, p. 99. observes this last case thus: ‘Found, that a non-resident burgess could not keep a shop, or carry on a trade by apprentices, or others under the name of apprentices.’
