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Scottish Court of Session Decisions >>
Magistrates of Kilmarnock v Wilson and Campbell. [1747] Mor 16117 (28 February 1747)
URL: http://www.bailii.org/scot/cases/ScotCS/1747/Mor3716117-067.html Cite as:
[1747] Mor 16117
Use of uplifting a small duty by a body corporate, a sufficient title in possessorio.
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James Wilson and Margaret Campbell being charged upon a decree of the Baron-bailie of Kilmarnock, to make payment to the Magistrates and their tacksman of the rate and duty of twelve pennies Scots for each boll of salt retailed by them within the said burgh, from Martinmas 1744 to Martinmas 1745, liquidated to £.3 7s. Scots due by Wilson, and to £.5 2s. Scots due by Margaret Campbell; and, at the same time, sundry of the other burgesses being pursued for certain rates and duties upon lint-seed, bear, barley, and meal, sold by them within the burgh, Wilson and Campbell suspended, and the others advocated.
At discussing the suspension, the only reason insisted on was, That no right or title whatever to the duty claimed was given out by the chargers, nor had been produced in the decree. But in regard use and wont of uplifting the duty upon salt was acknowledged by the suspenders' procurator to be proved, and that the Town and their tacksman are in possessorio, the Ordinary “repelled the reason of suspension; reserving reduction or declarator as accords.”
The suspenders reclaimed, on this ground, That a possessory judgment cannot be pleaded without a title: That mere possession, especially of exactions derogatory from the freedom of commerce, and which can only proceed from the authority of Parliament, cannot be the foundation of any claim or judgment: That such exaction, without a title, was oppression, which no continuance could sanctify.
The petition was refused. The chargers being a body corporate, their being in possession of a small duty was thought enough in possessorio.
