Scottish Court of Session Decisions

Subject_1 COMMUNITY.
Subject_2 SECT. V.

Complaints against Magistrates, to whom Competent. - In Diligence against a Community, who must be Cited.

Matthew Comb and Others,
v.
The Magistrates of Edinburgh

Date: 16 January 1794
Case No. No 34.

An action of declarator and damages against the Magistrates of Edinburgh, sustained at the instance of individuals brewers, who complained of inequality in levying the duty of two pennies Scots on the pint of ale and beer.

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The Magistrates of Edinburgh, by an unprinted act, dated 13th June 1693, are authorised to levy a duty of two pennies Scots “upon the pint of ale and beer to be brewed and in brought, vended, tapped, and sold within the said town, and suburbs and liberties thereof.” This duty was continue during the space of 15 years, and further during their Majesties pleasure, not exceeding the space of 30 years, as a just time and space calculated for the payment and discharge of the town's debt.

By the act, the Magistrates are directed to keep distinct accounts of the produce of the tax, and overseers are appointed to superintend their conduct in the execution of it.

By the 3d of Geo. I. this duty was continued for 19 years, after the expiry of the former statute; and additional overseers were appointed to act in concert with those named by the first act.

This duty was renewed by the 9th of Geo. I. and afterwards by an act passed in the 25th year of his late Majesty, which is still in force.

Matthew Comb, and certain other brewers liable in the duty, having raised an action of declarator and damages against the Magistrates, in which they complained that the defenders, or the collectors appointed by them, levied this duty unequally from the different traders; and asserted, that while it was exacted from them to its full amount, other traders were either totally or partially exempted, by which means the latter were enabled to undersell them at least 20 per cent. The Magistrates, in defence,

Pleaded, 1mo, The tax is the creature of statute, and every question relative to it must be regulated by statutable enactment. Unless, therefore, it can be shown, that the acts of Parliament which empower the Magistrates to levy the duty, confer upon every individual burgess, tanquam quilibet, a right to call the defenders to account for their management, the pursuers can have no such right at common law. Now, the acts of Parliament appoint overseers, in whom the power of controlling the conduct of the Magistrates is vested. It lies therefore with them, and not with any private party, to call the Magistrates to account.

Besides, it is a maxim of law, that no person is bound to answer as a defender in any case, or with any pursuer where an absolvitor will not afford him an exceptio rei judicatæ against a similar process, raised at the instance of any other person. Now, it is evident, that although the defenders were to be successful upon the merits in the present action, this absolvitor would not operate as a res judicata in any process brought against them by the overseers, in whom the title to pursue is vested by the statutes.

Answered, The pursuers, in consequence of the conduct of the defenders, have sustained a great patrimonial loss, and must therefore at common law be entitled to redress. Even ordinary burgesses are entitled to call Magistrates to account for their management of the revenue, Anderson against the Magistrates of Renfrew, No 33. p. 2539. But the patrimonial interest of the pursuers, and consequently their title, is much stronger than that of ordinary burgesses, as they offer to prove that the favoured brewers are enabled to undersell them at least 20 per cent.

The overseers named by the acts of Parliament were appointed solely with the view of attending to the interest of the public, and not to that of private traders, who should be injured by the defenders in the collection of the duty. Indeed, so far as the action is brought for reparation of the damage which the pursuers have already sustained, it is evident that the overseers have neither title nor interest to insist in it; and it seems equally clear that the pursuers are entitled, by a declaratory conclusion, to guard themselves against a repetition of the injury.

The objection, that a decree of absolvitor from this process would not avail the defenders in a similar action, at the instance of different pursuers, does not apply to that part of the libel which concludes for repetition and damages. And at any rate, this objection has been over-ruled in other cases; 9th August 1765, Merchants Company and Trades of Edinburgh against the Governors of Heriot's Hospital, voce Hospital.

The Lord Ordinary reported the cause on informations.

The Court sustained the pursuers' title, and repelled the defences stated on this point.

Reporter, Lord Dreghorn. Act. Dean of Faculty Erskine, Monypenny. Alt. Lord Advocate Dundas, Neil Ferguson. Clerk, Menzies. Fol. Dic. v. 3. p. 142. Fac. Col. No 90. p. 201.