Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

Charles Earl of Aboyne, John Earl of Hyndford, John Lord Colvill, and Others,
v.
The Magistrates and Town-Council of Edinburgh

Date: 10 March 1775
Case No. No 88.

Immemorial possession and practice, where there is any dubiety upon the words of a grant, as not being sufficiently comprehensive, become the the rule for exacting, as well as for the mode of levying particular duties.

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The pursuers insisted in an action of declarator relative to the extent and mode of levying those duties possessed by the town of Edinburgh, commonly called their impost-duties.

The Magistrates and Council of Edinburgh got what is called the impost-duty, by a grant from Charles the second in 1671, which was ratified in Parliament by an act dated the 11th of September 1672.

The grant proceeds on the narrative, ‘adeo ut nisi prorogatio impositionis super vino aliisque exteris commoditatibus importandis concedatur omni tempore futuro, &.c.’ and, therefore, gives to and incorporates with the town of Edinburgh:

“Impositionem et custumam summæ duorum solidorum monetæ Scotiæ super unoquoque Scotico pincto vini Gallici, summæ quatuor solidorum ejusdem monetae super unoquoque pincto Scotico vini Hispaniensis, Rhenensis, lie brandy wines, extraneæ aquavitæ, aquis recoctis aliisque extraneis liquoribus distillatis, summæ duodecim denariorum monetae Scotiæ super unoquoque Scotico pincto de lie mum, et super unoquoque Scotico pincto extraneæ cerevisiæ et zythi importand. et vendend. intra dict. civitatem de Edin. vel quasvis libertates ejusdem postea specificat., solvend per venditores et cunctos alios invectores dicti vini specierum prædict. Extranei zythi et cerevisiæ ad dict. civitatem et territoria ejus spectan. viz. South and North Leiths, Canongate”, &c.

And the modes of collecting and levying the duty are expressed in the following words:

“Cum potestate dicto præfecto, balivis, et consulibus, eorumque factoribus, et famulis eorum nominibus colligendi et percipiendi, dictas impositiones, &c. Quinetiam potestatem facimus dict. magistratibus et concilio Edinburgeno istiusmodi acta et statuta sancire, pro collectione earundem, prout eis idoneum videbitur, ac juramentum partibus ministrare de quantitate earundem commoditatum per illos vendend. intra quævis dict. locorum; ac jurare recusantes carceri mancipare, vel eos pro confitentibus tenere, de quantitatibus pro quibus eorum juramentum exigetur, et summariam executionem desuper exercere:”

And farther, the grant ordains letters of horning to pass at the instance of the magistrates of Edinburgh, for payment of the said duty.

The points which the pursuers insisted should be declared, were arranged under the seven following heads: 1mo, That no wines are liable in the duty of impost, but French, Rhenish, Spanish, and brandy wines: 2do, That all other wines whatever, and all spirituous liquors distilled in England or the British Colonies, may be imported without payment of any such duty: 3tio, That cyder, perry, London sweets, porter, ale, and beer, may likewise be imported from England free of impost: 4to, That no private persons are liable in payment of impost for any liquors imported by them for their own consumpt, and that it can only be exacted from those who import such liquors for sale within the city: 5to, That the impost-duty does, in no case, extend over the Canongate, North Leith, Portsburgh, Potter-row, Bristo, or Pleasance, or any other of the suburbs, liberties, and territories of the city of Edinburgh, in which it has not been regularly in use to be levied: 6to, That the defenders have no power to exact impost at the port of Leith: And, lastly, That they have no right to seize or to confiscate any liquor for which the impost has not been paid, but must sue for the impost of such liquors as are liable therein, in the ordinary course of law, or in terms of the grant.

The defenders argued, in substance, That the words of the grant were sufficient to comprehend all wines whatever; and it is evident that there is no good reason for making a distinction. 2do, Usage and possession are the best interpreters of grants; and the courts of justice in every country have relied upon them, in discovering the meaning, and regulating the effect and extent of grants. In the present case, the usage of exacting the impost upon all wines whatever is immemorial, and there is reason to believe it to be coeval with the grant itself.

Neither was the present question new in this Court; for, by a grant of King Charles II. 1678, and by acts of Parliament in 1695, afterwards continued in 1707, a duty on ale, wine, brandy, and other commodities therein mentioned, was given to the burgh of Aberdeen, in words almost the same as those whereby the impost is granted to the town of Edinburgh. In this grant there is no mention made of Port or Madeira wine; which two species of wine had come only into recent use, and consequently importation, into the town of Aberdeen; in the year 1739, when a suspension was brought at the instance of some of the merchants against the collector of impost, the chief ground of which was for having it ascertained, that the grants could not be extended to wines imported from Portugal; but the Court found, November 21. 1739, “That Portuguese and Madeira wines were comprehended under the grant.”—The present case, however, is considerably stronger than that of Aberdeen; for it was there admitted, on both sides, that the importation of Port and Madeira into the burgh of Aberdeen was a trade just newly commenced; so that the argument, arising from the immemorial usage of the payment of impost upon the importation of those species of wines, could not be urged in support of the exaction then insisted upon by the collector of the Aberdeen impost: But, in the present case, the defenders are not now making any demand which is not sanctioned by long usage and the acquiescence of parties.

Upon the 2d of August 1774, the Court pronounced the following judgment:

“The Lords find, that the defenders have no power to exact impost merely upon importation at the port of Leith, or any other ports within the grant; and find, that cyder and perry may be imported free of impost; and decern and declare accordingly: But, in respect that it is not denied that the defenders have been in the uniform practice of levying impost upon the other liquors from which the pursuers claim to be exeemed, find, that the impost is exigible for these; and that the defenders are entitled to continue in the method hitherto used for rendering the said impost or duty effectual; and find, that the defenders are entitled to make the grant effectual over the Canongate, South and North Leith, Portsburgh, Potter-row, Bristo, and Pleasance, and the other suburbs, liberties, and territories of the city of Edinburgh therein mentioned; and that private persons are liable in the said impost for any liquors imported by them, for their own consumpt; and therefore assoilzie the defenders from the other conclusions of the declarator, and decern.”

The pursuers having reclaimed against this judgment, upon advising the petition and answers, they were ordained to give in a condescendence of what they offered to prove; but, on considering the condescendence given in, the Court found, That the pursuers had not condescended sufficiently to entitle them to a proof; and, thereafter,

'Adhered to their former interlocutor; with this variation, “That, in order to give the proprietor opportunity to claim, no confiscation, for not payment of the duty, shall proceed till at least eight days after the seizure, and then not without an application to the magistrates by the seizure-makers, and their warrant thereupon.”

Act. H. Erskine, Crosbie. Alt. L. Adv. Montgomery, et Rae. Clerk, ——. Fol. Dic. v. 3. p. 104. Fac. Col. No 171. p. 83.