Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BURGH-ROYAL.
Subject_3 Power of a Burgh to alter its usages.

William Fotheringham and Others
v.
Andrew Langlands, &c

Date: 13 December 1776

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[Faculty Collection, VII. 324; Dict., App. I.—Burgh-Royal, No. II.]

Hailes. This declarator is calculated to overturn the whole law of corporations. It is said that there is no seal of cause; and, therefore, practice must be the rule. Although there were a seal of cause, by the magistrates allowing persons not of a trade to be members of that trade, it would signify nothing. No magistrates can grant to tailors or fishmongers the privilege of hammermen. This would take away the whole method of qualifying persons in any particular profession; and all tailors might become hammermen, and all hammermen tailors. As a seal of cause could not do this, so neither can practice. Practice may have force in possessorio; but whenever a declarator is brought, the right must be the rule. The other conclusions are no less anomalous. The son of a hammerman, if he follows his father's profession, may be admitted, on paying smaller dues than a stranger; but he cannot be admitted as a hammerman without learning the craft of a hammerman. This would be to convert our corporations, or companies, into Indian castes; and so also, as to the privilege claimed from marrying the daughter of a hammerman, it resolves into this—a young man, instead of producing a piece of work as his essay-piece, must be allowed to produce a hammerman's daughter, and to say, that is my essay-piece.

Auchinleck. The use of corporations, and for which the law allows them, is, that the lieges may be insured of having persons capable to work in the several trades necessary for society. Hence, when I hear of a corporation of tailors, I send for one of them, and desire him to make me a suit of clothes; but, on conversing with him, I learn that he cannot draw a thread, but is a fishmonger. [When I want to have my horse shod, must I go to a shoemaker; myself shod, to a hammerman?]

Braxfield. The regulations sought to be declared are absurd and ridiculous, and inconsistent with the law of the land. It would, however, have been better had a reduction been brought of the strange and unconstitutional act of the corporation of hammermen in 1770.

President. I would have had the same difficulty, were it not that the pursuers have brought a declarator.

On the 13th December 1776, “The Lords sustained the defences;” adhering to Lord Kennet's interlocutor.

Act. D. Rae. Alt. A. Wight.