Scottish Court of Session Decisions

John Grant, vintner in Inverness, was a discharged soldier, and, as a King's freeman, set up the business of an upholsterer and cabinetmaker in Inverness. The Wright and Cooper Incorporation of Inverness raised an action, alleging that he was unlawfully infringing on their exclusive privileges by making and repairing furniture, and they concluded for interdict against him. Grant admitted that he carried on that trade, but alleged that he did so himself, for his own behoof, without collusion with any party; that he had for two years attended in a carpenter's shop, and made tables, &c., where he got a practical knowledge of his business; and that from this, and other circumstances, he was perfectly apt and able to carry on his business, which was that of a master cabinetmaker, having corporation-freemen, or King's freemen, working under him; that he personally instructed and superintended them; that his whole business was either carried on by himself personally, or under his immediate personal superintendence; and that though the chief part of the work was done by the hands of his servants, he personally took as large a share in carrying on the business as any other master cabinetmaker. The pursuers did not admit these statements, but they did not allege that the defender lent his name as a cover to any other party, and in making up a record they stated (Art. 4) “that the defender has for several months past made and repaired, and still continues to make, manufacture, and repair for sale, hire, or price, within the royalty of the said burgh of Inverness and liberties thereof, a great variety of furniture, and other articles connected with the wright, carpenter, and cabinetmaking, cooper and glazing trades, and included within their corporate privilege.” A similar statement had been previously inserted in the summons. The defender admitted the fact of his making and repairing a great variety of furniture. The pursuers farther averred in their condescendence (Art. 5), that the defender “is not a freeman of the said Incorporation, and is not personally capable of, or apt or fit for carrying on any branch thereof, or the trades or crafts therewith connected, or otherwise sanctioned or protected by law or statute so to do.” The defender denied this, excepting as to his not being a corporation-freeman. The record being closed, the defender contended, that, provided he did not lend his name as a cover to unfreemen, but truly worked for his own benefit, either with his own hands, or by personally superintending and directing workmen in his employment, like any other master tradesman, he was within the protection of the statute. He was ready to prove all this; but it was unnecessary to do so, as the pursuers themselves had stated that he had for months carried on, and was still carrying on, an extensive trade, and this was the best of all proof that he was apt and fit for the business in which he was engaged. ¹ The pursuers answered, that, in Art. 5, of their condescendence, they had specially averred that the defender was “not apt or fit for carrying on any branch” of the trade in question. They were ready to prove that averment if the onus of proof was laid on them; and they should be allowed to do so, as the averment was clearly relevant. The previous averment, in Art. 4, when read in connexion with Art. 5, merely amounted to this, that the defender was able to impose insufficient work, to a considerable extent, on the public, thereby injuring both the public, and the Incorporation, whose exclusive privileges were conferred on it, not more for its own benefit than for the protection of the public.

The Lord Ordinary “sustained the defences, assoilzied the defender, and decerned, and found the defender entitled to expenses; but before answer, as to whether these are to be single or double costs, appointed an account thereof to be given in.” ^*

The pursuers reclaimed.

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¹ Tailors of Glasgow, June 13, 1828 (ante, VI., 972)—Tailors of Aberdeen, January 19, 1831 (ante, IX., 290.)

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^* “ Note.—The Lord Ordinary conceives this case to be, in substance, the very same with that of the Tailors of Glasgow against M'Kenna, 13th June, 1828. The principle established there was, that provided a King's freeman do not lend his name as a cover to another person to invade the privileges of the Corporation, but truly works for his own benefit, whether by his own hands, or by giving directions to workmen, the law does not require any other criterion of his aptitude or ability. Now, in the present case, the pursuers admit (Condescendence, Art. 4) ‘that the defender has for several months past, made and repaired, and still continues to make, manufacture and repair for sale, hire or price, &c., &c., a great variety of furniture and other articles connected with the wright, carpenter and cabinetmaking, cooper and glazing trades.’ The Summons further sets forth, that he not only does all this with a view to sell these articles, but that they are go well made that they do actually sell. Even though he could not work personally (which no freeman, deprived by war of all his limbs, could do), it would be sufficient that he was capable of directing others. But the pursuers’ averments are, that these things are done by the defender. No doubt they say, in the 5th article of their Condescendence, that the defender ‘is not personally capable of, or apt or fit for carrying on any branch’ of the trade. But this article does not necessarily contradict the other, for the one relates to the making of the articles, and the other to the carrying on of the trade, But as the pursuers stated at the debate, that they meant, even in the 5th article, to refer to the manufacture, the Lord Ordinary is willing to give them credit for this. It does not advance their case, however. For this general averment of inability in the one article, is refuted by the special facts admitted in the preceding one. How can it be said, in reference to the statutes throwing open Corporations to discharged soldiers, that one of them is deficient in aptitude, when it is admitted that he manufactures and sells to a great extent, truly for his own benefit, and without an insinuation of his being in collusion with any body else?

“The case of the Tailors of Aberdeen against Munro, 19th January, 1831, has no application to this case; first, because there the soldier was giving his name as a cover; and, secondly, it was proved that he himself was utterly unfit, a fact which was only held to be important in reference to the collusion.”