Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. IV.

Who liable to Burgal Services and Prestations.

The Magistrates of Glasgow
v.
The Writers

Date: 21 November 1695
Case No. No 40.

Persons, within burgh, of descriptions not falling under the terms, traffic, merchandise, or change, found not liable to stent.

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The Town Council of Glasgow, for making up the King's cess imposed by the Parliament, having laid a proportion of the same upon the writers living by that employment within their burgh; they presented a bill of suspension before my Lord Whitelaw, pretending it was a mere innovation: And he having reported the debate on the reasons, the writers founded on the 115th act 1592, anent the taxation of burghs, determining none to be liable to cess within burghs but only such who exercised traffick, merchandise, or change within the same, under none of which classes writers fell, they being a liberal employment, and a part of the College of Justice.—The magistrates alleged for them a posterior act, viz. 279th Parl. 1597; which, though in the Rubrick it seems to relate only to the poor and watching within burgh, yet by the statutory part extends to all residenters within burghs who may spend a hundred pounds by year, or are valued to be worth 2000 merks of stock.——The Lords were clear that writers were liable for any real estates they possessed within burgh, as landlords of tenements; as also, that they could plead no exemption as writers exercising a liberal calling, or qua members of the College of Justice, (whereof as they were no part, so these members had no such privilege granted now,) but in so far as they were craved to be made liable as inhabitants possessing personal estates, the Lords being unclear how far this might go, resolved to hear it argued in presence, because of the generality of the preparative, seeing all the writers in the hail royal burghs of the kingdom would plead the same immunity, though many of them possessed great estates in money, which ought to bear some proportionable burden with the rest, (though they alleged they paid both retention and the poll on account of these personal estates); and, on the other hand, if they tax writers qua inhabitants and possessors of such moveable estates, then, by the same rule, why not gentlemen, who, for the education of their children, reside in burghs ? But if they have estates in landward, they are secured against double taxation by the 279th act 1597. But the difficulty recurs, if his estate consist only in money; for some thought there was no reason that one who had 100,000 merks should go altogether free; and his being liable to retention came not to the King's use, and his poll was no adequate cess with what is paid for land-rent; neither were these so constantly imposed as land-cess.

December 13. 1695.

The Lords decided the cause of the Magistrates of Glasgow against their Writers (mentioned 21st November 1695,) after a hearing in presence; and found none of the acts of Parliament founded upon could reach the writers; neither under the words of traffic, merchandise, and change, in the first act there cited, nor of rents and holdings within burghs in the second act; and that consuetudo being optima legum interpret, none of the royal burghs had ever stented them till now; which sufficiently instructed these acts were not designed to comprehend them, and so were never in viridi observantia, but in desuetude quoad them, though they had expressed them, as they did not. But in regard the town alleged, that the writers' apprentices, ipso facto, by serving their apprenticeships, became burgesses of Glasgow, and got their freedom under that reduplication, as having served writers: The Lords thought this might be a ground whereon to make them liable; but, without a present determination of the relevancy, allowed a probation of the custom, before answer; and did not find it sufficient that some of them were made burgesses, unless it were proven that they got it as a right due to them by the production of the discharge of their indentures; and that by the constitution of the burgh, the Magistrates and Dean of Guild could not refuse them, who had served their apprenticeships to writers.

Fol. Dic. v. 1. p. 118. Fountainhall, v. 1. p. 679. & 688.