Magistrates and Town Council of Lauder, v. Thomas Brown
Date: 15 November 1754 Case No. No 101.
A royal burgh had a charter, containing a general clause, cum omnibus annuis reditibus et possessionibus quibuscunque. Having for upwards of 40 years exacted a toll for every loaded cart passing through the liberties, the burgh was found entitled to continue that toll.
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The Magistrates and Town Council of Lauder charged Brown for payment of a toll of two shillings Scots for each loaded cart belonging to him, and passing through the liberties of Lauder: Of this charge Brown obtained suspension.
The Magistrates, in support of their charge, produced a charter of confirmation, granted to the burgh of Lauder in 1502, by James IV. and containing a general clause, cum omnibus annuis reditibus et possessionibus quibuscunque; which charter was ratified by Parliament in the year 1633. They also produced, from the books of town council, a table of customs, dated in 1703, and bearing for ilk long cart two shillings: And they offered to prove immemorial possession of the toll demanded.
A proof was before answer granted; and the case was reported by Mr William Grant of Prestongrange, Lord Probationer.
The defender pleaded, in point of relevancy, 1mo, That highways are juris publici, and that a toll to be levied on them may not be granted, but by the joint authority of King and Parliament; and so the Court expressly found, 15th November 1621, Town of Linlithgow against Fleshers of Edinburgh, voce Prescription.. The ratification in 1633 does not afford any argument in support of the toll; for that such ratifications passed of course, and without being particularly considered. 2do, et separatim, That the charter, on which the chargers founded, contains no special grant of tolls; and immemorial possession cannot support an exaction to which no title whatever is pretended.
Answered for the pursuers: The Crown of Scotland had an undoubted right of imposing tolls, to be levied on all carriages passing through certain places; many such tolls have been so established without the authority of Parliament.
The decision produced for the defender is either erroneous, or founded on some special circumstances omitted by Durie, (p. 3.) The grant, in favour of the burgh of Lauder, is general; but immemorial possession proves the toll in question to have been granted, and ascertains its extent.
‘The Lords found the burgh of Lauder has right to continue the possession of levying the several tolls and customs mentioned in the act and rates of the said burgh, dated 30th September 1703; and found the letters orderly proceeded, as to the customs enumerated in the said act: But found, That the burgh has no right to exact any toll or custom on coal or lime passing through the said town and territories, in carts, on horse-back, or otherwise.’
Reporter, Prestongrange.Act. Sir D. Dalrymple, J. Grant, A. Lockhart.Alt. W. Stewart, A. Pringle, D. Rutherford.Clerk, Forbes.
Fol. Dic. v. 3. p. 105. Fac. Col. No 116. p. 173.
N. B. The reason of the last part of the interlocutor was, That as to these particulars, possession was not proved.
