Scottish Court of Session Decisions

Subject_1 VIS ET METUS.

Baxters of Canongate and Leith
v.
Tenants of Winton

1749, Feb. 24.
Case No. No. 1.

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The Rebels in 1745 having sequestrated that estate and appointed one Arrot factor, who compelled them to pay their rents under pain of military execution; they ordered under the like pain three baxters of Leith (who had been in use to make biscuit for the Government) to bake 600 bolls of their Winton wheat into biscuit for their army; and they received the wheat or part of it, and granted their receipts to the tenants. Other 300 bolls they sold to six Canongate baxters at L.6. 6s. per boll, though the current price then was L.8 or L.9; and this they also received, and gave receipts to the tenants. These tenants pursued both for the current prices of the whole wheat; and the defence being force and fear, a proof was allowed hinc indc, and this day advised. The Leith baxters produced the order on them to manufacture into biscuit under the foresaid pain, and brought proof of their applying for and obtaining delays of the delivery, and they also proved that they had manufactured and delivered the biscuit to the Rebel army, but could not prove the quantities nor the identity, only there was one parcel received by them on 31st October, which could not have been manufactured before the Rebels went off November 1st. We sustained the defence for them, they giving their oaths in supplement that they had manufactured the whole into biscuit and given it to the Rebels, but as to the last parcel ordered them to condescend how they disposed of it. The Canongate baxters proved in general that the Rebels ordered the Magistrates of Canongate to get bread baked for the Army under pain of military execution, or that the Rebels would go to the baxters shops and take it, but brought no proof of any scarcity of wheat in the town or of any force on the defenders more than the other inhabitants, and no force on any of them to buy the pursuers wheat. On the contrary there seemed to the majority to be evidonee that it was voluntary. Therefore we (17th November 1748) found them liable for the current prices without regard to the payments made the Rebels, whose receipts they produced, renit. Milton, Drummore, &c. and (22d November) found them not liable in solidum, but every one for his own intromissions.—24th February 1749, We unanimously altered this last and found them liable conjunctly and severally, and gave only the expenses of extracting the decreet,—me renit. inter alios.