Scottish Court of Session Decisions

An action was raised in the Sheriff Court of Kilmarnock at the instance of the Provost, Magistrates, and Town Council of the Burgh of Kilmarnock, against Donald & Morton, auctioneers, carrying on business in an auction mart at West Langlands Street within the burgh of Kilmarnock. The pursuers craved the Court “to grant a decree against the above-named defenders, ordaining them to pay to the pursuers the sum of £56, 15s. 7d, or otherwise to appoint, ordain, and decern the defenders to produce or deliver to the pursuers a list containing or showing the names and addresses of the owners or consignors, and the numbers of each kind of bestial, of all cattle, sheep, horses, pigs, or other bestial consigned to or brought within or sold within their auction mart at West Langlands Street, Kilmarnock, between the 7th day of October 1898 and the 30th day of September 1899; and further, to ordain and decern the defenders to produce and exhibit to the pursuers their books or other documents in order that the pursuers may verify or check said list, and discover the names and addresses of the owners or consignors, and the number of each kind of bestial, of said cattle, sheep, horses, pigs, or other bestial consigned to or brought within or sold within said auction mart belonging to defenders within the periods above mentioned.”

It was averred by the pursuers on record, and was not disputed by the defenders, that “(Cond. 2) The pursuers have right to levy petty customs or dues, inter alia, on all cattle, sheep, horses, pigs, and other bestial brought for sale within the burgh of Kilmarnock, conform to schedule of rates herewith produced dated 23rd October 1854. … By judgment of the Sheriff-Substitute of Kilmarnock, dated 16th February 1899, it was decided that the pursuers have right to levy or collect the customs at the rates mentioned in said schedule upon all cattle, sheep, horses, or pigs brought for sale within or sold within the said auction mart of the defenders. A copy of said judgment is herewith produced and referred to.”

The pursuer further averred—“(Cond. 3) Between the 7th day of October 1898 and the 30th day of September 1899 there has been consigned to the defenders within said burgh, or brought for sale within said burgh by the defenders, or brought within and sold by the defenders within said auction mart belonging to the defenders, and on the respective dates therein mentioned, the number of cattle, horses, sheep, pigs, or other bestial mentioned in the list herewith produced by the pursuers. The customs or dues payable to the pursuers upon said cattle, &c., amount to £56, 15s. 7d., all as detailed in said account.”

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The pursuers pleaded—“(1) The defenders having brought for sale within or sold within the burgh cattle and sheep, &c., detailed in the list herewith produced, upon which customs are payable, the pursuers are entitled to decree of payment as concluded for. (2) The defenders being the consignees of cattle brought for sale within or sold within the burgh as detailed in said list herewith produced, upon which customs are payable, the pursuers are entitled to decree of payment as concluded for. (3) The defenders being bound to disclose to the pursuers or to allow them an opportunity of discovering the owners and consignors of cattle, &c., to them, upon which customs are payable, and the defenders having refused to do so, the pursuers are entitled to decree to that effect as concluded for.”

The defenders averred that they had not been asked for payment of any customs until an account was rendered on or about 9th March 1899. They maintained that they were not indebted to the pursuers, and pleaded that the action was irrelevant and incompetent.

The Sheriff-Substitute ( Hall) on 29th November 1899 pronounced the following interlocutor:—“Finds that as regards the primary conclusion for payment the action is not supported by any relevant averment, except in so far as hereinafter mentioned: Finds that as regards the alternative conclusion for exhibition the action is irrelevant and incompetent: Finds that the following averment, contained in article 3 of the pursuers’ condescendence, is relevant to be remitted to probation, in support of the conclusion for payment, viz., ‘There have been brought for sale within the said burgh by the defenders the number of cattle, horses, sheep, pigs, or other bestial mentioned in the list herewith produced:’ Allows the pursuers a proof of the said averment, and the defenders a conjunct probation: Quoad ultra dismisses the action and decerns, reserving in the meantime the question of expenses.”

Note.—“In this action the pursuers seek to enforce their right to levy petty customs on animals sold in the auction mart in Kilmarnock belonging to the defenders. The primary conclusion proceeds on the assumption that the defenders are themselves liable in payment of these imposts, and the grounds of their alleged liability are set forth in article 3 of the condescendence. They consist of three alternative averments, viz., that the animals had been consigned to the defenders, or had been brought for sale within the burgh by the defenders, or had been brought within and sold within the defenders' auction mart. Of these averments the second is admittedly relevant, and a proof of it has accordingly been allowed. The other two are I think irrelevant. Animals consigned to the defenders may, before being so consigned, have been already within the burgh, in which case they are not subject to petty customs, and the same remark applies to animals brought within and sold within the defenders' auction mart. Further, I am not aware of any authority for holding that consignees are liable in payment of petty customs, which seem only exigible from the persons who actually bring the animals or other goods across the boundary and within the limits of the burgh. Accordingly, in the well-known case, Magistrates of Linlithgow v. Edinburgh & Glasgow Railway Company, 12th July 1859, 21 D. 1215, where the history of these imposts was so elaborately and learnedly handled, Lord Medwyn observes that originally petty customs were always levied at the ports or gates of the burgh, although the goods might not be sold there but merely pass through.

The second or alternative conclusion is entirely unsupported by averment, except in so far as consignment to the defenders, which is averred, implies that there were also consignors. But the main objection to it is its incompetency. It is in reality a conclusion for exhibition ad probandum, having for its object to place the pursuers in a position to raise action against certain persons who are supposed to have sent animals for sale to the defenders' auction mart. Such a conclusion is, however, incompetent, unless the exhibition is craved with reference to some depending process, to which the action of exhibition ad probandum is incidental and accessory— Crawford v. Campbell, May 26, 1826, 2 W. & S. App. 440; Greig v. Crosbie, December 11, 1855, 18 D. 193; Campbell v. Campbell, May 13, 1869, 7 Macph. 759. Here of course we have no depending process, since what the pursuers seek to obtain is information and materials to enable them to sue such of the defenders' customers, if any, as have incurred liability for petty customs. I apprehend that they are not entitled, at least in this form, to require the defenders to assist them to do so, and that the alternative conclusion would fall to be rejected, even if these vexatious and old-world charges were less unfavourably regarded than they are in modern practice.”

The pursuers appealed to the First Division.

Argued for appellants— There was no doubt that customs were legally due to the burgh by some one for all cattle brought from outside within the burgh. They had originally been levied at the ports, but it was no longer possible to do this consistently with the circumstances of the town. The defenders, who received the cattle and brought them in from outside, were just as much the cause of their being brought in as the consignors. It was the most convenient way of collecting the dues to collect from the defenders, and would do no harm to anyone, since no doubt they would be paid out of money received from purchasers, and would thus ultimately come from the pockets of the consignors— Great Eastern Railway Company v. The Mayor of Harwich, 1880, 41 L.T. (N.8.) 533. The pursuers were accordingly entitled to a general proof of their averments in Cond. 3. 2. Alternatively, they were entitled to succeed on the remaining conclusions, so as to learn the names of the consignors. The

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cases quoted by the Sheriff-Substitute were inapplicable.

Argued for respondents—The pursuers' demand placed the consignee for sale in an impossible position. If they had demanded the toll when the cattle or the proceeds of the sale were in the possession of the defenders, they would have had no right to retain and hand over the toll. Their customers would have had a good grievance against the defenders if they had done so, for they were neither in a position to go beyond the terms of their contract and retain money to pay the toll, nor were they collectors of it on behalf of the Magistrates. Such a demand had never been made upon a consignee for sale, still less could it be made for the accumulated customs at the end of a year. The case of the Great Eastern Company in no way supported the pursuers' contention, for it turned entirely upon the construction of a particular statute.