Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

Alexander Olyphant and Company, Wine-Merchants in Ayr,
v.
The Magistrates and Town Council of Ayr

Date: 18 January 1775
Case No. No 87.

Immemorial practice in a burgh, of levying particular duties, having a preceding title in writing to tolls and customs in general, found to be a sufficient ground for supporting the exaction.

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This being a question relative to the Town of Ayr's right to exact certain duties upon wine passing out of the harbour of Ayr northwards, under the denomination of bridge custom, which was challenged by an action of declarator at the instance of Alexander Olyphant and Company, the Magistrates, in defence, stated their several charters from the Crown, from William the Lion, David II. Robert III. James VI. Charles I. ratified in Parliament, containing liberas consuetudines, cum firmis burgi, parvis custumis, tolloneis, annuis reditibus, libero portu, custumis, aliis juribus, privilegiis, pertinentiis—free ports or harbours, customs, annualrents, free fairs, market days, liberties, privileges; and produced a table containing the rates of that part of their customs which was the subject of the present question. They observed, that the table was distinguished into two heads, of bridge custom and causeway custom; the former being the duty exacted upon goods carried northwards, the latter the duty levied upon goods carried southwards; and they offered to prove, that, in virtue of their charters, they had been in the immemorial possession of the duties stated in the table of customs, as now explained; which, even independently of any title in writing, they contended, would support their right to the customs in question.

The Lord Ordinary pronounced the following interlocutor:

“Finds the defence pleaded for the Magistrates of Ayr, defenders, viz. That, for time past memory, they have been in possession of levying the tolls and customs now challenged upon goods carried by sea from the harbour of Ayr northwards, or southwards; the first under the appellation of bridge custom, the other under the appellation of causeway custom, as distinguished in their table of the town's customs, dated the 3d November 1730, relevant; and ordains the pursuers to say, Whether they mean to dispute the possession, as above qualified, or to offer proofs of interruption sufficient to bar the effects of such possessions?”

To this judgment the Court adhered; and afterwards, on advising the proof adduced, gave final judgment, as follows:

‘The Lords find, That the defenders have right to exact the tolls and customs now challenged.’

Act. Crosbie. Alt. G. Ferguson, Macqueen. Clerk, Tait. Fac. Col. No 149. p. 8.