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The Dean of Guild of Edinburgh v Cunningham, Duncan, and Wilson, Coupers in Leith. [1710] 4 Brn 800 (1 July 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Brn040800-0309.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Dean of Guild of Edinburgh v. Cunningham, Duncan, and Wilson, Coupers in Leith
Date: 1 July 1710
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George Warrender, Dean of Guild of Edinburgh, having convened Cunning. ham, Duncan, and Wilson, coupers in Leith, and John Wert, smith there, to enter burgesses, otherwise to go to prison, and have their shops shut up; and they, to prevent distress and save their credit, having granted bond for £5 sterling each of them, as their composition for their burgess tickets; and being-charged thereupon, they raised suspension and reduction on thir reasons, 1mo, That the bonds were extorted by force, fear, and concussion; in so far as he threatened them with summary imprisonment if they did not comply with his demand; and this proceeding from a magistrate, who could effectually put his threats in execution when he pleased, being clothed with authority, it was sufficient to incuss and strike dread and terror into such poor ignorant merchants as they were. 2do, The Dean of Guild's claim was most unjust and unreasonable; seeing the tradesmen of Leith have immemorially exerced their employments without entering burgesses of Edinburgh, or paying any dues for the same, especially seeing they have no benefit by such a useless compliment.
Answered,—Overly threats can never afford just ground of reduction; for, l. 22 D. Quod metus causa supposes only actual imprisonment to be metits qui cadere potest in constantem virum, et minæ solæ non sufficiunt. And Stair, lib. 4, tit. 40, num. 26, seems to require actual restraint to found this action. 2do, It was vis licita (esto it were true;) for, Leith being a part of the royalty of Edinburgh, it is under the cognizance and jurisdiction of the Magistrates thereof: and the Deans of Guild have been in use to call unfree traders, and either cause them enter, or else fine them; it being only the town's port and burgh of barony, and Edinburgh their superiors.
The Lords, before answer, allowed a conjunct probation; the pursuer to prove, That it has been the use and custom for the Dean of Guild of Edinburgh to call the inhabitants and artificers in Leith before his court, to enter burgess, and pay for the same; and, in case of refusal, to imprison summarily: and the defenders to prove, They have been in use and exercise of their respective crafts and employments without being obliged to enter burgesses and pay composition for the same.
There was a separate point alleged against the Coupers, That they were not only wrights for making barrels, but likewise traded in wines; whereas, it was uncontroverted that none could use merchandise without being first admitted burgess.
But, this point not being fully heard, the Lords reserved the consideration of it till it were further debated.
