Scottish Court of Session Decisions

This action was raised at the instance of Well-wood Herries Maxwell of Munches, Mark Sprot Stewart of Southwick, Robert Maxwell Witham of Kirkconnell, Robert Kirkpatrick Howat of Mabie, Wellwood Maxwell of The Grove, Francis Maxwell of Breoch, William Stewart of Shambellie, Patrick Dudgeon of Cargen, Walter M'CulIock of Ardwall, and James Biggar of Maryholm, all in the Stewartry of Kirkcudbright, and Alexander Oswald of Auchencruive, Ayrshire, and of Cavens in the said Stewartry, against the Provost, Magistrates, and Town Council of Dumfries, for themselves and as representing the whole inhabitants and community of the burgh. It concludes for reduction of (1) A pretended table of the customs and duties said to be belonging to the Town of Dumfries, referred to in an Act of the Council of the said burgh, dated the 5th day of November 1772; (2) The said pretended Act of Council, in so far as the same relates to the said bridge customs and duties; (3) A pretended table of the said bridge customs and duties, said to be belonging to the said town, and referred to in the said Act of Council, whereby the same are pretended to be defined, and explained, and converted into sterling money, and imperial weights and measures, in conformity with a pretended Act of Council of the 16th day of October 1854; and (4) The said last-mentioned pretended Act of Council itself, in so far as the same relates to the said bridge customs and duties, and bears to define, explain, and convert the same into sterling money, and imperial weights and measures. There were also conclusions for declarator that the defenders have no right or title to levy, collect, or demand any dues, rates, tolls, customs, or charges of any kind whatsoever, at the said new bridge or elsewhere, from or in respect of any person, bestial, or articles of any kind that may pass, or be conveyed, along the new bridge over the Nith between the burghs of Dumfries and Maxwelltown, or may enter or leave the said burgh of Dumfries, whether going to or coming from the territory of the said burgh of Dumfries, or market thereof, or passing through the said burgh, and whether the same are set down in either of said tables or not, or are alleged to be included within the terms, “corded packs,” “merchandise,” or “corded packs of merchandise,” or under any other general term in said tables, or either of them, except from and in respect of such persons, bestial, or articles, and at such rates as shall appear in the course of the process to follow hereon to have been charged, collected, or demanded by, and paid to, the defenders or their predecessors, according to the immemorial usage hitherto subsisting. The action farther concluded that a table should be framed showing the precise dues, rates, tolls, customs, or other charges which the defenders may be entitled to levy at the said new bridge, and that no other than the rates so ascertained should be levied in time coming.

The pleas in law for the pursuers were—1. The dues and customs enumerated in the tables called for and sought to be reduced, and those now claimed by the defenders, and the Acts of the Council of the burgh of Dumfries above specified, in so far as relating to said dues and customs and tables not being authorised by statute, charter, or usage, and being altogether without lawful authority, the said tables and acts ought to be reduced and set aside. 2. The said tables being inconsistent with one another, and being unsupported by immemorial usage, ought to be reduced and set aside. 3. The table of 1772 being expressed in Scots money, and in obsolete weights and measures, and having, moreover, fallen into desuetude, and been superseded by usage inconsistent therewith; and the table of 1854 having been merely an unauthorised attempt to revive, and explain, and extend the application of that obsolete table, no effect can now be given to either of said tables. 4. In no view are the defenders entitled to levy tolls, customs, or duties at higher rates, or from or in respect of persons, bestial, and articles, other than according to the usage which shall be proved to have prevailed from time immemorial prior to the institution of the present action, and the said usage not having been uniform, the whole matter should now be judicially inquired into, and a table to regulate the collection in all time coming should now be prepared at the sight of the Court. 5. The defenders are not entitled, under the head of merchandise, to levy duty upon articles which have not been subject to duty by immemorial usage; and the term merchandise applies only to articles passing the bridge of Dumfries for the purposes of commerce or mercantile dealing, and not to articles passing the bridge for use or consumption by the owner, or by the person conveying the same. 6. Generally the pursuers are entitled to decree of reduction and declarator, and to have a table of dues prepared, and interdict granted, all as concluded for.

The pleas for the defenders were—1. The defenders, as representing the burgh of Dumfries, are, in virtue of the charters, the Act of 1681, and immemorial usage, entitled to exact and levy the customs and duties in question. 2. The defenders and their predecessors in office, as representing the burgh, having for more than forty years and from time immemorial been in the uninterrupted use, possession, and enjoyment of the duties and customs in question, their right thereto cannot now be challenged. 3. The defenders' right is sufficiently instructed by the charters and by the statute of 1681, and cannot be objected to, no inconsistent or subsequent charter or act being founded on derogating therefrom. 4. The extent or rates according to which the said duties have been levied having been fixed by immemorial usage, the defenders' right is unchallengeable. In particular, the table of 1772 having been acted upon and enforced from that date down to the present time, it forms the rule according to which the duties fall to be levied. 5. The said table, embracing all merchandise and the duties specified, having been uniformly levied from time immemorial on goods of every description except lime, there is no ground for any exemption in favour of anything but lime. 6. There are no sufficient grounds on which the conclusions of reduction can be supported; and the whole material statements of the pursuers being incorrect in point of fact, the action is unfounded. 7. The table of 1854 being a mere explanation of the table of 1772 cannot be objected to, the table of 1772 forming the rule of payment. 8. The whole statements and pleas of the pursuers being groundless, the defenders are entitled to absolvitor, with expenses.

The Lord Ordinary (Kinloch) allowed the parties a proof, and evidence having been led at considerable length on commission, he pronounced the following interlocutor:—

Edinburgh, 30 th June 1865.—The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the process, proof, and productions:

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Finds that the defenders, the Provost, Magistrates, and Town Council of the royal burgh of Dumfries, are not entitled to exact, in name of Bridge Custom, any other or higher duties than are contained in the table bearing date in 1772, and authorised by Act of Council dated 5th November 1772, and are not entitled to exact such of the duties contained in the said table as may, for forty years and upwards prior to the date of the present action, have ceased to be levied on articles carried over the river Nith by the bridge in question: Finds that the table bearing date in 1854, and said to be authorised by Act of Council 16th October 1854, in so far as the said table differs from that of 1772, forms no legal ground or warrant for the exaction of bridge custom: Finds that the defenders are entitled to exact the bridge customs set forth in the first, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and eighteenth, heads of the said table of 1772, according to the true intent and meaning of the same, and to a just conversion of the rates therein specified into sterling money: Finds that, subject to the exceptions after mentioned, the term “merchandise,” as employed in the eleventh head of the said table, comprehends all articles which are the subject of mercantile dealing, and are in use to be loaded either on a horse or cart, but does not comprehend live animals, or the carcases of such as are dead, or any of the articles specified in the other heads of the table, which articles are to be charged agreeably to the rates set forth in these other heads: Further, finds that the said term does not comprehend lime, coal, manure, either natural or artificial, trees, or wood, drain-tiles, stones, slates, hay, straw, agricultural implements, furniture, or machinery; Finds that foals, calves, and lambs following their mothers are not chargeable: Finds that swine are not chargeable, dead or alive: Finds that no charge can be laid on carriers, other than those charges applicable to the different specific articles chargeable under the table: Finds that herrings are chargeable under the head of fish, and clogs under the head of shoes: Finds that horses are not chargeable when saddled or in harness: Finds that the defenders are not entitled to exact double rates on any particular day of the year more than on any other: And appoints the cause to be enrolled in order that steps may be taken for having a table of bridge customs framed in conformity with the previous findings.

(Signed) W. Penny.

Note.—The Lord Ordinary accedes to and adopts the principle that no customs are chargeable except what have been sanctioned by immemorial usage. But it is an item of proof of such usage if the customs shall be found specified in various successive tables of rates promulgated and acted on.

The Lord Ordinary conceives that the Magistrates are not entitled to go beyond their own table of 1772. This was their authorised rule of charge from 1772 downwards. They cannot in the face of their own table set up higher rates; if higher rates were at any time charged by the tacksman, the charge was without warrant, and illegal. The table of 1854, which is too recent to be sanctioned by usage, cannot be sustained, so far as it may be different from and higher than that of 1772. So far as it contains a mere conversion of the rates into specified sums of sterling money, the proof does not sufficiently support its accuracy to warrant its being at once taken. A table of rates containing such conversion must be framed with the aid of some skilled person. There will be difficulties found in its construction, but it is believed that these are by no means insuperable.

Generally speaking the Lord Ordinary is of opinion that the Magistrates are entitled to exact the customs specified in the table of 1772, in so far as, in regard to any of the articles specified, immunity has not been prescribed by the articles being allowed to pass for forty years and upwards without the exaction of customs. He thinks the evidence establishes a sufficient use of exaction under that table, to maintain the table generally. The complaint, for the most part, has been, that higher rates have been exacted. The Lord Ordinary is of opinion that such higher rates cannot be sustained. But the exaction of higher rates cannot so abrogate the table as to entitle the lieges to pass without paying rates at all.

In regard to the second, third, fourth, fifth, eighth, and ninth heads of the table of 1772, it appears to the Lord Ordinary that the duties specified in these are, in a proper sense, not bridge customs, but market dues, and should be set forward under this latter title. So also appears to be the seventeenth head, which is treated as a market due in the table of 1732. The pursuers declined to discuss these heads of the table; and the right of the Magistrates to levy the dues as market dues is unimpaired by anything which has taken place in the present process.

The disputes which have arisen have made it necessary, to some extent, to interpret the table of 1772; and the Lord Ordinary has endeavoured to do so, to the extent to which such interpretation seems likely to be practically useful. The leading question is, what is to be comprehended under the term “merchandise?” The Lord Ordinary has done his best to construe the word: but it must be carefully noted that the construction in issue is not an abstract construction of the word standing by itself. The question is, what meaning it bears in this particular Table of Customs? This must be, to some extent, determined by the analogy of the things specified in immediate connection with the use of the general word. It must be such like things which must be held pointed at. The usage must also go a great way towards determining what articles shall be included, and what omitted. The Lord Ordinary conceives himself to be fairly entitled to hold excepted those articles which the defenders, in the proposed Table of Customs given in by them into process, state to be excluded from the term “merchandise;” but he thinks the list susceptible of addition.

The fourteenth, fifteenth, sixteenth, and eighteenth heads of the table of 1772 are substantially comprehended in the prior table of 1732, and the Lord Ordinary does not think that there is sufficient evidence to warrant their abrogation. The prior table, indeed, mentions shoes, and not clogs. But the Lord Ordinary considers clogs to come under the duty on shoes. He is also of opinion that herrings are fish.

The eighteenth article of the table he considers explanatory of the eleventh, and simply to reduce the duty in a certain event.

The Lord Ordinary cannot sanction the proposed double charge on fair days, although set forth in the table, and having some evidence of usage to support it. He thinks it was not legal to exact a higher bridge custom on one day than another. Whatever may be said as to the market dues exigible on these occasions, there was no reason or propriety in charging more than usual for passing the bridge. He thinks the Magistrates had no right to set forth such double charge in their

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table, and that the illegal exaction cannot support itself. (Intd.) W. P.

Both parties reclaimed. In the course of the argument the following cases were cited by the pursuers, viz.— Magistrates of Linlithgow v. E. and G. Railway Company, 12th June 1859, 21 D. 1215; Town of Lauder v. Brown, 1754, 5 Br. Supp. 819; Burgh of Linlithgow, 1621, M. 10,866; Oliphant v. Magistrates of Ayr, 1775, M. 1971; Aboyne v. Magistrates of Edinburgh, 1775, M. 1972; Boog v. Magistrates of Burntisland, 1775, M. 1991; Tod v. Magistrates of St Andrews, 1781, M. 1997; Wauchope v. Magistrates of Canongate, 1800, M. App. voce “Community” No. 1; Rait v. Magistrates of Aberdeen, M. App. voce “Jurisdiction,” No. 13; Cowan v. Magistrates of Edinburgh, February 22, 1828, 6 S. 586; Magistrates of Dunbar v. Kelly, November 26, 1829, 8 S. 128; Christie v. Landale, May 16, 1828, 6 S. 813. The defenders referred to Ferguson v. Magistrates of Glasgow, 1786, M. 1999, and Hailes' Decisions, 922; and Edinburgh Paving Board v. Croall, February 28, 1860, 22 D. 913.

At advising—