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Boyle and Montgomery, &c. v Charles Straiton, Brewer in Grange. [1708] 4 Brn 726 (22 December 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040726-0225.html Cite as:
[1708] 4 Brn 726
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Boyle and Montgomery, &c v. Charles Straiton, Brewer in Grange
Date: 22 December 1708
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The taxmen of the town of Edinburgh's imposition of two pennies Scots on the pint of ale either brewed or imported within the town, pursue Straiton for what ale he brewed and vented or sold within the town of Edinburgh; and, during the two years of their tack, referred what he had imported in that space to his oath.
Alleged,—By the law, all such processes prescribe within three months; so he is obliged to swear no farther back, nor burden his memory therewith: for, by the 12th Act, 1669, all processes anent embezzling customs or excise must be intented within three months, otherwise not receivable. And, by the English Act of Parl. 1689, no information can be made against a brewer, unless it be entered within three months after the offence, which is to avoid frequent swearing: especially seeing they have other checks and remedies, by gauging and surveying; or, if imported from the country, they may stop at the port till it pay.
Answered,—The excise duty to the queen does so prescribe; but this is a duty given to the town for paying their debts, and falls not under the excise. 2do, If they were pursuing for penalties or seizures of the ale, such penal actions might, indeed, prescribe within three months; but this pursuit is merely rei persecutoria, for the single duty of two pennies per pint; and they have so many ways of stealing it in to the town, that there is no possibility of watching them; so the only remedy is by oath. And the Acts of Parliament cited, both Scots and English, relate only to concealments and embezzlements, and the fines thereby incurred; which they are not insisting for.
The Lords were sensible that this was a very hard and unequal way of trial; for, though they could not quarter, yet they made it effectual by one of the bailies giving a decreet, and immediately poinding the poor brewer's house for it. Yet they thought egebat constitutione imperiali; and therefore repelled his defence founded on the three months' prescription, and ordained him to depone; the Lords finding they could not remedy it, they being only interpreters and appliers of the law, and not the legislators.
