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England great quantities of tobacco, most part of which was consumed there, and the residue exported: And shewed further, that the method directed by the act was found almost impracticable, and very [203] oppressive to the merchants; and that complaints were made to the Commissioners of the Customs of the late King James, who, without inquiring into the circumstances of the commodity, as the said act directed, made one general order, that 4l. per cent. should be allowed for waste and decay; and that such allowance should be made to those only who should, by writing under their hands, consent thereto: And that appellant applied to the Commissioners to have a greater allowance than 4l. per cent. for waste and decay, and damages occasioned by his tobacco lying by; which the Commissioners refused, altho' it was generally damaged 8l. per cent. and a great part of it more: And that, by another act, 7th and 8th of the late King William, the tobacco duty was continued to 29th September, 1701; and that this last act declared, that the methods prescribed by the former act, for collecting the duty, had been found prejudicial to trade, and grievous to the merchant: Therefore it was enacted, that on payment of the duty for tobacco consumed in England, there should be an allowance of 8l. per cent. for waste and shrinkage, and 4l. per cent. in consideration of all tobacco exported: And that appellant had answered several great sums of money for duty on his tobacco, hut never closed his impost accounts, and the Commissioners of the Customs refused to make him any further allowance than 4l. per cent. for waste and decay: And that therefore appellant exhibited his bill in the Exchequer against the Attorney General and Commissioners, to make up and settle the appellant's impost account: And the Attorney General exhibited his bill against appellant for the same purpose: And that witnesses were examined on both sides, and appellant had fully proved, that his tobacco was damaged most of it 8l. per cent. and a great part of it much more, by waste and decay in the cellars and warehouses: And that both causes were heard, and afterwards re-heard; and that the Barons decreed, that no further allowance than 4l. per cent. should be made to appellant for waste and decay; and that the auditor should state appellant's impost account, with that allowance only; and appellant insisted he was aggrieved by this decree, for that the order made for allowing 4l. per cent. generally, was not warranted by the act of parliament, but that an allowance ought to be made according to the circumstances of the commodity; and that such general order could never answer all cases and [204] circumstances; and that it was not to be supposed that the importer should bring to the Custom-house every parcel of tobacco he sold for retail, to be inspected by the Commissioners; nor that the Commissioners should go to the importer's warehouse to view the same; but that the damage was to be made appear by sufficient evidence: And that appellant having fully proved that his tobacco was damaged 8l. per cent. the commissioners ought to have made him that allowance, and insisted that the Court of Exchequer ought to have directed a trial at law to ascertain the damage, which had been refused. (Sam. Dodd.)

The respondents, in affirmance of the decree, made this case: that the ascertaining that allowance, according to the methods prescribed by the first act, being very troublesome to the merchant, appellant, and several other traders in tobacco, made application to the Commissioners of the Customs, to make a certain allowance for waste and shrinkage, while the goods might lie by; and thereupon obtained two orders, in October, 1685, and July, 1681, to have the allowance ascertained at 4l. per cent. as well for tobacco exported, as for that consumed in England. And that in pursuance of those general orders, appellant, who after the making the act, and before 1st May, 1696, did import great quantities of tobacco from time to time, had the said allowance, and gave receipts for the same: And, notwithstanding this, appellant, after his tobaccos were all either sold, or exported, and long after the duties ought to have been paid, demanded an allowance, pursuant to the act, according to the circumstances of his commodity, and being prosecuted by the Attorney General, for non-payment of the balance of his impost account, being 6527l. 1s. 7d. exhibited his bill in the Exchequer against the Commissioners and Officers of the Customs, setting forth his demand, and pretending that the circumstances of his tobacco were such as to deserve 8l. per cent. allowance; and that by virtue of that act, or by the act of King William, he ought to have such allowance; but that the Barons were unanimously of opinion, that his impost account should be