A person not a member of, the corporation of bakers in a royal burgh, who has a bakehouse without the burgh, may send bread into the burgh to persons commissioning it from him, and that though they be retailers of bread within the burgh. (See Appendix, Part I. voce Burgh Royal, No. 22.)
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The Incorporation of Bakers of Haddington have by seal of cause the exclusive right of the baker craft within that burgh-royal. John Smith was not a member of that Incorporation. He had a bakehouse in Nungate, which is without the limits of the burgh. From this bakehouse, he sent bread to those within the burgh who commissioned it from him, and some of these persons were retailers of bread within the burgh. The Incorporation of bakers, by their deacon and boxmaster, brought an action against him before the Sheriff, containing other matter, but chiefly concluding for having him prohibited from “baking and selling bread within the burgh;” under which terms it would seem they included the practice above mentioned. The Sheriff-substitute found, “That the Incorporation of Bakers of Haddington have the exclusive right of manufacturing and selling bread within the burgh of Haddington: That it is an encroachment on their privileges as a corporation, in an unfreeman to manufacture bread without the burgh, and to sell the same by retail, or to retailers within burgh, unless on the weekly market-day; and in respect the petitioners have averred, that the defender, an unfreeman, has been in the practice of selling bread manufactured by him without the burgh, not only to private families, but to retailers, and that every day in the week, and which averment the defender has not explicitly denied; finds, that he has thereby been guilty of an encroachment on the petitioners privileges as a corporation, and prohibits him in time coming from selling bread by retail, or to retailers, as aforesaid, within the said burgh.”
The defender brought the interlocutor before the Court of Session by advocation.
The Lord Ordinary reported the cause on informations.
The pursuers confined their argument to maintaining, that selling to retailers was the same thing with retailing; and that retailing within burgh by an unfreeman, who was also the manufacturer without the burgh, was contrary to the incorporate rights of the freemeen.
The argument for the defender did not dispute the last point, but denied the first; and maintained that an unfreeman might deliver within burgh the articles he manufactured without, provided they were previously commissioned, and not brought in to be sold by him.
On advising the informations, with a condescendence and answers, in which it appeared that the above was the state of facts in the case, a great majority of the Judges expressed their opinion, that it was now settled law that an unfreeman might bring in the articles that were the subject of an incorporated craft, into the burgh, and deliver them to those who had previously commissioned them from him. That they could see no reason why he should not deliver them in this way to persons who retailed them on their own account, as well as to other people; and, further, see no reason why he might not do this in any quantity, or in the way of a regular supply, provided always he had no share himself in the retail of them.
The interlocutor of the Court (10th June 1808) was: “Sustain the defences, and assoilzie the defender.”
Lord Ordinary, Craig.Act. James Keay.Alt. Thos. W. Baird.D. Stewart and John Craw, W. S. Agents.Clerk, Buchanan.
Fac. Coll. No. 51. p. 185.
