Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

The Taxmen of the Town of Edinburgh's Impost upon Wines,
v.
Sir Robert Myreton of Gogar

Date: 26 December 1752
Case No. No 69.

Impost granted to the town of Edinburgh, is payable on wine, &c. imported within the limits of the grant, though for private consumpt.

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In April 1671, the town of Edinburgh obtained a grant from King Charles II of an impost or duty upon certain wines and other foreign liquors; the grant proceeds on a narrative of the necessity of granting such impost, in these words:

“Adeo ut nisi prorogatio impositionis super vino, aliisque exteris commoditatibus importandis concedatur omni tempore futuro (magistratus) non solum incapaces reddentur sustinere communes sumptus negotiorum dictæ civitatis, sed necessario cogentur subjacere oneri eorum antiqui æris alieni,” &c.

And the grant is in the following words:

“Dedimus, &c. Impositionem et custumam summæ duorum solidorum monetae Scotiæ super unoquoque Scotico pincto vini Gallici; quatuor solidorum monetae praedictæ super unoquoque Scotico pincto vini Hispaniensis et Rhenensis, lie brandy wines extranea aqua vita?, aquis recoctis, aliisque extraneis liquoribus distillatis; summæ duodecim denariorum monetae Scotiæ super unoquoque Scotico pincto de, lie mum, et super unoquo que Scotico pincto extraneæ cerevisiæ et zythi; importand. et vendend. intra dict, civitatem de Edinburgh, vel quasvis libertates ejusdem postea specificat; solvend per venditores et cunctos alios invectores dicti vini specierum prædict. extranei zythi et cerevisiae, ad dictam civitatem et territoria eo spectan. viz. ad South and North Leiths, Cammgate,” &c.

And the grant ordains letters of horning to pass at the instance of the magistrates of Edinburgh, for payment of the said duty, “super pincto dict, vini, &c. importand. omni tempore futuro, per venditores et invectores dict. commoditatum intra dictam civitatem, partes, &c. supra express.” And, in 1672, this grant was ratified in Parliament.

From the date of this grant, down to August 1751, the magistrates were in use to give gratis warrants to the inhabitants, for importing from Leith, or else-where, free of the said duty, such wines as the inhabitants intended to consume in their own private houses; so that, during that period, the duty was only exacted on wines and others sold in taverns, or retailed in shops; but all wines, &c. attempted to be brought into the city, not accompanied with such gratis warrants, or with an impost warrant from the collectors of the duty, were seized and confiscated.

There being a remarkable decrease of this duty, occasioned by the consuming of much less wine in taverns, and much more in private houses than formerly, the magistrates, by an act of council, in August 1751, discharged the granting of any such gratis warrants for the future, till the prohibition should be taken off by another act of Council, except to such as are exeemed from impost by law (viz. the members of the College of Justice.)

Many of the inhabitants, imagining that it was not in the power of the magistrates to exact impost upon wines imported into the city and liberties for private consumpt, resolved to have the question tried; and, in order thereto, Sir Robert Myreton having bought a parcel of wine at Dalkeith, applied to the magistrates of Edinburgh for a gratis warrant for importing it into Edinburgh; which being refused to him, he brought his wine to the port, where it was; seized, and he charged for the duty.

Upon this Sir Robert presented a bill of suspension, to the Court of Session, and alleged, That, by the words of the grant, the duty was only imposed upon; wines and others, importan et venden intra dictam. civitatem de Edinburgh, vel quasvis libertates ejusdem. And though the duty be payable per venditores et cunctos alios invectores dicti vini, yet the said wines are only such as had been mentioned in the granting clause, i. e. wines imported and sold within the city and liberties; so that, in order to entitle the town to the duty, it was necessary that the wine should be both imported and sold; that this was agreeable to the genius of the law of Scotland in like cases; for, by act 255. Parliament 1597, customs were payable to the Crown only for goods imported for sale, but gentlemen importing foreign: commodities for their own use were liable to no custom. And when duties upon merchandise imported into Scotland were granted to king Charles II. during his life, to be levied by way of excise, the duty was not made payable by the importer, in respect of the importation, but by the retailer, or first buyer after importation, as appears from 14th act, Parliament 1661.

2dly, He alleged that it had been the uniform construction of the grant, from its date to August 1751, that the duty was only to be levied upon wines imported into the city for sale; for, as often as any wines were imported for private consumpt, gratis warrants had been granted, not as a matter of favour, but as of right; and the magistrates could not now alter the custom, and put a different construction on the grant, which was in effect to make a new one.

Answered for the chargers: That the suspender's construction of this grant, viz. that both importation and sale must concur, in order to give the town a title to the impost, would imply the greatest absurdity; for he must admit, that, by the strictest interpretation of the words, wines bought at Leith and imported into Edinburgh, whether for sale or private consumpt, are liable to the duty; and if wines bought at Dalkeith, Musselburgh, or any where else, without the liberties of the town, and afterwards brought into the town, are not also liable, the grant would only have the effect to ruin the town's own port, viz. the port of Leith, but would bring in no revenue to the town, as every one would purchase his wines at places without the limits of the grant; but from the whole tenor of the grant, it is evident that the duty is imposed upon all wines consumed within the city of Edinburgh or liberties, wherever the wine was bought: This appears from the narrative of the grant, which sets forth the necessity of imposing a duty super vino aliisque exteris commoditatibus Importandis; and from the executive clause, ordaining letters of horning to pass for payment of the duty super pincto dicti vini Importand. omni tempore futuro, per venditores et Invctores dict. commoditatum.

And the genius of our law, in these matters, is by no means such as the suspender represents it; for, by act 210. Parliament 1594, a duty was payable to the Crown on all wines imported into the kingdom, and that within ten days after importation, though not retailed or sold; and, by the act 14. Parl. 1661. cited for the suspender, the duty thereby imposed is payable by the importer, and salt-maker, for what they consume themselves.

Further, That at the date of the grant, it was understood to impose a duty on all wines consumed within the town, appears from the decreet of declarator, obtained by the Members of the College of Justice against the town of Edinburgh in 1687; whereby, among other things, the members are declared free from payment of this duty.

And with respect to the usage of granting gratis warrants, answered, The applying to the magistrates for these, was an acknowledgment that the wines were liable to the duty; and that, in order to free them therefrom, it was necessary to apply to the magistrates for an indulgence; and the granting of these for any term of years could no more free the inhabitants from the duty, or oblige the magistrates to continue the indulgence, than if an heritor had yearly granted to another, on his applying for it, a liberty of casting peats in his moss, which could never constitute a servitude, or oblige the one to continue the favour to the other any longer than he pleased.

“The Lords repelled the reasons of suspension, and found the letters orderly proceeded.”

Reporter, Lord Minto. For the Chargers, Advocatus. For the Suspender, Ro. Craigie. Clerk, Gibson. Fol. Dic. v. 3. p. 104. Fac. Col. No 53. p. 78.