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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magistrates of Kilmarnock v. Mather [1868] ScotLR 6_355_1 (19 February 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0355_1.html
Cite as: [1868] ScotLR 6_355_1, [1868] SLR 6_355_1
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SCOTTISH_SLR_Court_of_Session
Page: 355↓
Court of Session First Division.
v.
Facts:
Magistrates of a burgh sued a tradesman for certain customs per account, &c., “ which the pursuers
Page: 356↓
are entitled to exact and levy conform to decree of declarator of the Court of Session.” No other title was set forth. The decree was in absence in an action directed against twelve tradesmen in the burgh, among whom the present defender was not included. Action dismissed, no good ground of action being set forth in the summons.
Opinion, that the decree of declarator might bind the defenders named therein until opened up.
The Magistrates and Town Council of Kilmarnock brought this action in the Sheriff-court of Ayrshire, against John Alexander Mather, cheese merchant, Kilmarnock, concluding for payment of £26, 10s., being the custom on cheese and butter brought by the defender within the said burgh of Kilmarnock for sale, per account, commencing the 22d day of November 1867, and ending the 18th day of May 1868 annexed hereto, and which the pursuers are entitled to exact and levy, conform 1o decree of declarator of the Court of Session dated the 16th day of November, and extracted the 21st day of December 1858, herewith produced and referred to, with interest of the said sum, at the rate of five per centum per annum, from the said 18th day of May 1868 till payment, and with expenses.
The decree of declarator was pronounced in ab-sence, in an action at the instance of the Magistrates and Town Council of Kilmarnock, against James Dick, William Arbuckle, Robert M'Adain, and James Gray, all fleshers in Kilmarnock, John Fleming and David Pitt, both potatoe merchants there, John Templeton, David Reid, William Simpson, and Margaret Mather, all provision merchants there, and Andrew Hamilton and Alexander Scott, both fruiterers there; and found and declared that the pursuers and their successors and their tacksman were entitled to levy certain specified tolls and customs on certain specified articles when brought for sale within the burgh.
The defender pleaded, inter alia, that the pursuers had set forth no sufficient title warranting them to levy the customs claimed by them; that there had been no usage in support of the claim; and that the decree of declarator did not affect the defender.
The Sheriff-substitute (Anderson) pronounced this interlocutor:— “Finds that the pursuers have set forth no sufficient title to sue, nor stated any relevant ground for holding the defender liable in the customs claimed: Therefore assoilzies the defender from the conclusions of the action, and dismisses the same, except as to the claim of one halfpenny per stone on one hundred stones of butter, being four shillings and twopence, and which the defender all along expressed his willingness to pay: Finds the pursuers liable in expenses,” &c.
“ Note— This action is brought in name of the Magistrates of Kilmarnock, with consent of their tacksman of customs, and for his interest, and concludes against the defender, a cheese merchant in the town, for £26,10s., being the custom on cheese and butter brought by the defender within the said burgh of Kilmarnock for sale, between Martinmas 1867 and Whitsunday 1868, and which the pursuers are entitled to levy, conform to decree of declarator of the Court of Session dated November 1858. There is no other title whatever set forth. It is not said that the Magistrates and their tacksman have right to levy a custom on cheese by virtue of an Act of Parliament, or by immemorial usage founded on a grant from the Crown; and yet there is no other way by which the right here claimed can be established. They have an Act of Parliament of old date in their favour; hut, for obvious reasons, do not found upon it. They rest their case exclusively upon the Court of Session, decree No. 4. Now, no court whatever can confer a right to levy customs from the public. It may declare a right already existing, but nothing more. The decree in question was pronounced in absence, and the defender was no party in it. As regards the defenders actually called, and who did not think proper to enter appearance, the decree, though in absence, may be good while it stands unreduced, but cannot affect the present defender, who had nothing to do with it. The pursuers say, when they brought their action of declarator in 1853 they did everything in their power, by calling the most extensive and best known trades of Kilmarnock in the various brandies of trade falling within their right of levying custom; and if those persons choose to let decree in absence go out against them, it binds not only themselves but every one else in the same, and their successors, in all time coming. Even if the case had been fully argued, and a deliberate decision on the merits given by the Court of Session, it might he doubted whether this would he so, as to which it is unnecessary to enlarge here; but when the Court never applied its mind at all to the subject, the plea of res judicata as against the public seems clearly out of the question. In the recent case of Jenkins (PI. of L., 5th April 1867) in the House of Lords, with a reference to a right of way claimed on behalf of the public by two or three private individuals, Lord Romilly says, res judicata, “by its very words, means a matter on winch the Court has exercised its judicial mind, and has come to the conclusion that one side is right, and has pronounced accordingly.” Were it otherwise, it is easy to see how parties in the position of the present pursuers and others might rear up the most dangerous rights against the public. They would only require to call a few friendly defenders who were willing to allow decree in absence to go out against them, and then plead res judicata against the whole community.
Twelve years ago the Sheriff-substitute had occasion to decide a case in this Court against the tacksman of the Magistrates of Kilmarnock, who claimed custom on beans and barley meal under authority of an Act of the Scottish Parliament, dated in January 1701, in favour of Lord Kilmarnock, afterwards assigned by the Earl to the Magistrates of Kilmarnock, and in terms of which the decree of declarator by the Court of Session proceeds. In that action it was successfully pleaded that the dues claimed were not exigible, because, though included in the words of the Act, and the corresponding findings of the declarator, it had been the invariable practice never to charge them. In other words, that the right conferred must be limited and explained by usage. So, in the present case, the defender avers, and offers to prove, that custom never was exacted upon cheese brought for sale within the burgh, except where actually sold, and also weighed at the public weighhouse; while the pursuers claim from him custom on every stone of cheese he brings within the burgh for sale, whether sold or not, and where confessedly none of it was weighed at the public weighhouse. Though the decree of declarator was obtained fifteen years ago, it is believed this is the first occasion the Magistrates have ever attempted to levy the custom on cheese in the circumstances here set forth. It was so stated at the debate, and was not contradicted. Within the last few years a most extensive cheese
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fair has been established in Kilmarnock, when, it is said, a larger quantity of cheese is annually exposed for sale than at any other place in the kingdom, and which is brought from all parts of Scotland, and even from England. According to the contention of the pursuers, as admitted by their agent, the whole of it would be liable in custom whether sold or not, and whether weighed at the public weighhouse or not. It would be but shortsighted policy thus to discourage and drive away a trade which is so rapidly attaining an almost national importance, and which is calculated to confer such immense advantage on the town and district generally.” The pursuers appealed.
Scott for appellants.
Gifford and Guthrie for respondent.
At advising—
The summons is laid under the Sheriff-court Act 1853, and contains a statement of the ground of action in the conclusion. The conclusion is as follows— ( reads ut supra). If I understand the pursuer's counsel, he contends that that is a sufficient reference under the above Act, but I cannot agree in that. I think the Act requires the pursuer to set out the ground of action, and that cannot be done without libelling the title of the pursuers to recover. The form provided for the conclusions of petitory actions is set out in Schedule (A), and is as follows — ( reads from schedule). Now, in all these instances, the pursuers' title to sue appears from the schedule; and it is out of the question to say that the ground of action can be properly libelled unless the pursuers' title is set out. But in this case, suppose the summons concluded with the word “hereto,” then there would clearly be no setting forth of title, and equally clearly the summons would have been bad. All that follows the word “hereto” is, “and which the pursuers are entitled to exact and levy, conform to decree of declarator of the Court of Session, dated the 16th day of November, and extracted the 21st day of December 1853, herewith produced and referred to, with interest of the said sum, at the rate of five per centum per annum, from the said 18th day of May 1868 till payment, and with expenses.” The title is laid on the decree of declarator. Now, when this alone is referred to, I would certainly have expected that in the extract decree produced the title on which the decree was obtained would have been set out. But there is no such statement in the decree, and in this summons there is no mention of charter or usage,— nothing but the decree of declarator. The argument of the pursuers is that the decree is binding on the defender until set aside. The ground on which that is maintained is, that it is a declarator of a right vested in the Magistrates of a burgh to levy customs on the inhabitants of the burgh. And it is maintained— and I think rightly— that such a declarator, directed against that part of the community chiefly interested, or against a considerable number of that part, and decree pronounced in that declarator, causa cognita, will bind the community, and will finally establish the right of the Magistrates. I think that is sound. But what shall be said of a decree in absence directed against three or four of the persons interested? Now, I can understand that if this summons had been directed against persons actually called as defenders in that action, and against whom the decree was pronounced, it might perhaps have been necessary for them to open up the decree before they could be heard in defence. But can it be said that a party who was not called in the action, and against whom no decree was pronounced, yet requires to open up the decree, as a matter of form, to enable him to maintain his pleas? There is neither authority nor reason for that. It would be carrying the effect of a decree in absence in such a declarator a great deal too far. I think the defender is not bound by that decree at all. I do not think even the defenders in the declarator are hound beyond this, that they may require to open up the decree, but I do not think the others are bound at all. If that be so, the summons is plainly a badly libelled summons by the Sheriff-court Act of 1853, for it does not set forth any ground of action against the defender.
Agents for Appellant— Wotherspoon & Mack, S.S.C.
Agent for Respondent— T. Dowie, S.S.C.