TEMPLETON v TOWERS & Ors (Court of Session)

George Templeton, designing himself ‘collector of the custom or duty of four shillings Scots upon wheat and wheat-flour brought into the town of Kilmarnock,’ prosecuted the defenders, bakers in Kilmarnock, before the magistrates of that burgh, for the foresaid duty upon wheat brought into the town by them.

This duty was claimed in virtue of a certain old private act of Parliament, granting to the Earls of Kilmarnock, and by progress from them to the magistrates of the burgh, this custom upon meal and other grain brought into the market for sale. The collector had been recently appointed by the magistrates for the purpose of enforcing payment of it on wheat, on which it had never previously been paid; and the summons in the inferior court contained a conclusion for declaring that the pursuer was entitled to it.

The defenders objected to the competency of the jurisdiction; but the magistrates repelled this objection, and sustained the action. The defenders advocated; and the Lord Ordinary ‘found that the claim against the advocators was incompetently brought before the magistrates of Kilmarnock, at the instance of the collector of custom or duty on wheat and wheat-flour brought into the town of Kilmarnock; altered the interlocutors brought under review in the advocation; dismissed the action; and found the pursuer liable in expenses.’

The pursuer reclaimed , and pleaded —The title of a tacksman of the magistrates to pursue for petty customs in the burgh court was sustained in the case of Fergusson v. Harvie, 17th November 1826, and the other cases there referred to. It is impossible to draw any solid distinction between his situation and that of a collector; at all events, that might be an objection to the title to pursue, but not to the competency of the jurisdiction, which is the only question raised in the present advocation.

Lord Medwyn, Ordinary. Act. James Walker. Alt. J. A. Murray & Cowan. Walker, Richardson, & Melville, and Gardner & Robertson, Agents.