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Scottish Court of Session Decisions >>
Oliver Coult, Esq; and Others, v The Town of Musselburgh. [1756] Mor 7782 (9 January 1756)
URL: http://www.bailii.org/scot/cases/ScotCS/1756/Mor1907782-007.html Cite as:
[1756] Mor 7782
Pursuer must qualify a Legal Interest, otherwise no Process.
Oliver Coult, Esq; and Others, v. The Town of Musselburgh
Date: 9 January 1756 Case No. No 7.
The inhabitants of a town bound themselves by oath not to sell their fulzie, but to persons residing within the liberties. The neighbouring heritors, not having a direct interest, found not entitled to challenge the combination.
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Every burgess of Musselburgh at his admission has an oath administered to him in the following terms:
“That he shall not sell his muck and fulzie to any but those who dwell within the burgh and liberties thereof.”
And this oath being of ancient date, has constantly been administered, and due obedience given to it. Some neighbouring heritors who were prejudiced by this regulation, brought a declarator against the Town of Musselburgh, subsuming, That the oath was an unlawful restraint upon the liberty of the subject, and concluding, that the inhabitants were not bound to give obedience thereto. This cause being reported by the Lord Ordinary, it occurred to some of the Lords in point of right, that a burgh of barony may, like a baron, confine their dung to their own lands; and, like a baron, discharge the importation of ale; that a royal burgh being erected for the sake of commerce, differs in both particulars. In the erection of a burgh of barony, the benefit of the baron is chiefly regarded; and therefore, the Magistrates of such a burgh have all the powers of a baron acting within his own barony. A royal burgh is chiefly erected for the benefit of the burgesses; and therefore, the Magistrates have no power by any by-laws to abridge their privileges. But the Court waved giving any judgement upon this point, finding a more obvious medium upon which to determine the cause. They considered that no direct detriment was done to the pursuers by this oath; and therefore, that they had no direct interest to carry on this process; that whatever consequential interest they may have, such interest is no sufficient foundation for an action. And accordingly the Court refused to sustain the action.
