Scottish Court of Session Decisions

Subject_1 PART I.

JURISDICTION.

Plumber and Another,
v.
Hastie and Another

Date: 6 March 1804
Case No. No. 10.

Regulations of a Baron-Bailie for ascertaining the purity of commodities previous to their being exposed to sale, have effect, though the purchaser be without the jurisdiction of the Burgh.

See No. 8. supra.

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A regulation of police was made in the year 1799 by the Baron-Bailie of Dalkeith, for the purpose of preventing the butchers of that place from exposing to sale tallow in an impure state, which it seems they had been accustomed to do, by mixing with it certain extraneous matter, increasing its weight, and diminishing its purity. For this purpose, two searchers were appointed by the Bailie, which appointment was afterward sanctioned by the Sheriff, who interponed his authority to the measure, and ordained all the rough fat to be carried to the weigh-house of Dalkeith, to be inspected and cleaned, under certain penalties. This regulation was afterward confirmed by a judgment of the Court of Session, the cause having been advocated by the butchers of Dalkeith.

James Plumber and James Smith, the tallow-searchers of the burgh, presented, in the month of October 1803, a complaint to the Baron-Bailie against Henry Hastie, butcher in Dalkeith, stating, that he had evaded the regulation, by sending off a certain quantity of tallow privately, and selling it in Edinburgh. In is answers to the complaint, Hastie declined to give any particular account of the quantity of allow that he had thus sold, and contented himself wait denying that the regulation was applicable to him. The Bailie ordained him instantly to confess or deny whether he had delivered the tallow unsearched, as stated by the complaines, with certification, that otherwise he would held confessed as to the quantity, and judgment given accordingly.

A bill of advocation was presented against this judgment of the Baron-Bailie, which, upon being advised with answers and replies, passed by the Lord Ordinary; Upon this the tallow-searches presented a petition, and

Pleaded: By the former decision of the Court, the right of the Baron-Bailie of Dalkeith to make regulations with regard to the market, and the property of this particular regulation with regard to the sale of tallow, were explicitly recognised. Indeed, the right of a Baron-Bailie to make such regulations has been long established; Bankit. vol. 1. P. 426; Magistrates of Paisley against Adam, 30th November 1790, No. 389. p. 7687; and the regulation here made is essentially the same as what prevails in most of Royal Burghs in Scotland. But if this bill of advocation be passed, it would be in fact annuiling this restriction altogether. It is true, the Baron-Bailie's power extends no farther than the market of Dalkeith; but no part of the tallow is sold by the butchers in the public market: It is altogether disposed of by private contracts, for which there is generally a competition among the tallow chandlers. If, therefore, it were in the power of a butcher, by making a particular contract with a tallow-chandler, to evade the necessity of submitting the tallow to examination, the regulation would be entirely defeated.

Answered: The regulation of the Baron-Bailie does not apply to this case; because although that magistrate may have powers to make rules for the market within his Burgh, he can never prevent an individual from entering into such contracts as occur in the usual course of trade with, third parties, and receive implement beyond the limits of his jurisdiction. In this case the purchaser of the tallow does not reside in the town of Dalkeith, for does he carry on any trade within that Burgh. He is entitled therefore to demand this tallow for the stipulated price, according to the contract he entered into, without being obliged to pay any regard to the regulation of the Bailie; and if the butcher furnishes it to him in such a state of purity as had been agreed on between them, it is all that can reasonably be required. The regulation may be extremely proper when confined to the market of the Burgh; but the Bailie has no power to enact any regulation to be binding over the whole country, and to apply to persons over whom he has no jurisdiction. 2dly, Even if the complaint were just, the tallow-searchers are not the persons who have a right to make it.

The Court, upon considering the petition with answers, (8th February 1804) altered She interlocutor of the Lord Ordinary, and remitted to his Lordship to refuse the bill, and to find expenses due.

A reclaiming petition against this interlocutor was refused without answers.

Some of the Judges thought, that the regulation of the Baron-Bailie was strictly local, and could not be extended over the trade in general. But the majority of the Court held, that this regulation, which seemed proper in itself, would be totally nugatory, if the commodity sold by the butchers within the Burgh to strangers were not be comprehended under it.

Lord Ordinary, Cullen. For Advocators, Baird. Agent, Geo. Clapperton, W. S. Alt. Corbet. Agent, Alex. Ferrie. Clerk, Menzies. Fac. Coll. No. 154. p. 345.

*** On the same same day, in the case of Still, &c. against the Magistrates of Aberdeen, the Court found the same duty exigible upon rough tallow as upon refined.