Armstrong and Son, and Others, v. Thomas Moffat and Others
Date: 9 July 1800 Case No. No. 8.
A Baron-Bailie has power to appoint sworn searches of the tallow of cattle slaughtered within the barony.
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The society of Fleshers at Dalkeith, have, for time immemorial, been accustomed, in October annually, to make a contract with the candlemakers established there, for delivery of the tallow from the cattle slaughtered by them, at a fixed price, for the subsequent year, the candlemakers being entitled to search the tallow delivered to them, and to return and receive discount for any impurities left among it.
In October 1799, the usual contract was made for the ensuing year.
In December 1799, the candlemakers presented a petition to the Baron-Bailie of Dalkeith, who is appointed by the Duke of Buccleuch, the superior, craving that, in imitation of a late regulation in Edinburgh and Glasgow, he should appoint two persons one chosen by the fleshers; and the other by the candlemakers, to search the tallow upon oath.
The Baron-Bailie complied.
The fleshers having resisted the regulations, the candlemakers, with concourse of the procurator-fiscal, applied to the Sheriff of the country to interpone his authority to it.
The fleshers disputed the right of the Baron-Bailie to make the regulation; and maintained, that they were at least entitled to an addition of from 4d. to 6d. a-stone, during the subsistence of the contract for the current year, as the higher value of tallow, after passing through the hands of official searchers.
The Sheriff “found the regulation adopted by the Baron-Bailie by appointing searchers, is proper and expedient; there fore interponed his authority thereto, and ordained the defenders to carry their rough fat to the weigh-house of Dalkeith, there to be inspected and cleaned, under the penalty of 5s. Sterling for each contravention, besides confiscation of the tallow so delivered without being searched.”
A bill of suspension having been passed, a petition was presented, upon which parties were heard at the bar, when the jurisdiction of the Baron-Bailie was disputed, and memorials were ordered.
The Candlemakers contended, That by 20th Geo. II. c. 43. § 20. where-ever a Baron has right to hold markets, as in the case of Dalkeith, the jurisdiction necessary for regulating the police of them, is reserved to him, and his Baron-Bailie; that accordingly the Baron-Bailie of Dalkeith was in the practice of preventing unmarketable commodities from being exposed there, and even of seizing tallow not sufficiently purified, and that the regulation complained of, was merely a better mode of securing the tallow being exposed in a proper state, than his former occasional exertions of authority.
The Fleshers did not now dispute the jurisdiction of the Baron-Bailie, but they contended, that they were in justice entitled to have the regulation suspended, or an additional price for their tallow, during the subsisting contract, as neither the candlemakers nor the public were entitled to receive, at the contract price, the article of superior quality to what was in view when the contract was formed.
The Court were clear as to the power of the Baron-Bailie to make the regulation, and of the expediency of it. The only doubt was as to the claim of the fleshers for a compensation during the subsisting contract.
The Lords refused the bill, reserving the claim of the suspenders for an additional price.
Lord Ordinary, Ankerville.For the Candlemakers, Lord-Advocate Dundas.Alt. Baird.
Fac. Coll. No. 190. p. 437.
