Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

James Dalmahoy, &c Tacksmen of Excise,
v.
William Cleghorn, Thomas Boreland, &c Brewers.

1682, 1683,and 1684.

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1682. March 28.—Mr James Dalmahoy, and the other tacksmen of the Excise of Edinburgh, against Bailie Thomas Boreland at the West-port, and some other brewers. The Lords, on Redfoord's report, found the letters orderly proceeded against the brewers,—Dalmahoy and the other chargers finding caution to refund whatever George Miln's brewing should be found to extend to, more than the survey which the tacksmen gave up, upon Sir John Nicholson's decreet-arbitral. Vide infra, 17th March 1683.

Vol. I. Page 181.

1688. March 17.—Mr James Dalmahoy and the other tacksmen against William Cleghorn and the Brewers. The Lords, contrary to what they did 28th March 1682, do now allow the Tacksmen to prove, by witnesses, that, before the assignation they made of the tack to thir defenders, they had consented to a reference anent Brown of Gorgiemiln's brewing, to Sir John Nicolson, and what excise he should pay for the same; and, that being proven, they found it sufficient to liberate them from the contravention of the warrandice of their assignation.

The words of the interlocutor are:—The Lords find it relevant to liberate the chargers from the deduction of the value of Gorgiemiln's brewing, that there was a reference anent Gorgiemiln's brewing, prior to the bargain betwixt the chargers and suspenders, and prior to the 4th of October 1671; and find the same probable by witnesses, and assign to the chargers' procurators to prove the same.

Vol. I. Page 227.

1684. February 6.—William Cleghorn, brewer, his bill against Mr James Dalmahoy, and the other Tacksmen, being with the answers read and considered by the Lords; they ordained the Act to be extracted in terms of the last interlocutor; (vide 17th March 1683;) and allow the petitioner to raise reduction against Brown of Gorgiemiln, of his agreement and survey of brewing; and appoint him to answer summarily et incidenter, in this process, before my Lord Harcous, upon this head, that the decreet-arbitral is unjust and reducible as being contra arbitrium boni viri; and ordain Archibald Young to depone if he refused to subscribe the reference, and what was the cause of his refusing; reserving to themselves to consider what his oath shall operate. Vide 11th March 1684.

Vol. I. Page 267.

1684. March 11.—The debate between William Cleghorn, brewer, and the other assignees of the tacksmen of the Excise, against John Brown of Gorgiemiln, (anent which vide 6th February 1684,) is reported by Harcus; and the Lords, before answer, ordain the survey-rolls to be produced, that they may see if thir pursuers and other tacksmen had as great an ease in the valuing their weekly brewing as Gorgiemiln has by Sir John Nicolson's decreet-arbitral, appointing him only to pay the excise of four bolls weekly, whereas he truly brewed upwards of 30 bolls; which is læsio realis almost ultra decuplum. For the Lords thought, if Cleghorn and the rest of them had as great an ease (as Gorgiemiln) effeiring to their brewing, it is unjust in them to quarrel Gorgiemiln's low valuation, seeing he was to have had an interest in the tack as well as they. But they also referred it to three of their number to settle the parties, if they could.

Vol. I. Page 280.