Viscount of Arbuthnot and Others, v. The Justices of the Peace for County of Kincardine
Date: 15 February 1754 Case No. No 6.
Justices of Peace may apply the statute work in the county for the reparation of one highway, and may permit those who live at a distance from such highway to compound at a rate below the statutable composition.
Click here to view a pdf copy of this documet : PDF Copy
The Justices of the Peace for the county of Kincardine made an order, that the six days work for the highways of all the tenants, cottars, and other labouring men within the county, should be applied, in the first place, for the repairing of one highway; and they permitted those who lived at a distance from that highway, to compound at a rate below the legal composition.
The Viscount of Arbuthnot and others presented a bill of suspension of this order, and pleaded; That the Justices had therein exceeded the powers given them by law; for that the act 16th Parl. 2. Sess. 1. Charl. II. ordains the Justices “to divide the parishes of their bounds, as they lie most ewest to the, highways to be repaired, and as they may have the most equal burden;” and the meaning of this regulation is, that the highways be repaired by the inhabitants of the nearest parishes, and by them only; not that all who are bound to perform the six days work may be called out from one extremity of the county to the other. Such extension of the law would, in the county of Kincardine, prove a heavy burden; and in more extensive counties, an intolerable grievance. And if the tenants and others be not obliged in law to perform the six days work on distant roads, they cannot, in case of failure, be obliged to compound.
Answered for the Justices of the Peace; The order of the Justices may be supported both from the words and the spirit of the laws respecting the reparation of the highways; for that the act 9th Parl. 2. Sess. 2. Charl. II. permits the Justices to accept of a certain composition in lieu of the six days work, “where the ways lie at a great distance from those who are liable to repair the same;” which words imply, that the persons bound by law to work at the reparation of the highways, may be called to such work from any distance whatever. And this is further explained by the act 5th Geo. I. cap. 29. which, by providing that the tenants, &c, be called out on such days and “at such places as the Justices shall appoint,” lodges a discretionary power with the Justices; this power has, in the present case, been exercised with moderation; and persons residing at a distance have been allowed to compound at a rate even below that which is established by statute. Further, the purpose of the acts aforesaid was, that the highways throughout the kingdom might be repaired in the manner least grievous to the people. Now by this, the Legislature could not mean that the highways should be repaired by calling out the tenants, &c. for the repairing of the roads within their respective parishes; for such method is unequal, expensive, and unsuccessful; it is unequal, for that in order to repair the highways within one parish, the country services may be more than sufficient, within another, less; it is expensive, as many overseers must be paid when various roads are repaired at once; and how unsuccessful it is, the experience of all Scotland has demonstrated. On the other hand, if the country services be applied for the reparation of the highways successively, their use may at length be in a great measure superseded, and the people relieved of this burden.
“The Lords refused the bill of suspension.”
For the Suspenders, Brown, Lockhart.Alt. J. Grant, R. Dundas.
Fol. Dic. v. 4. p. 201. Fac. Col. No 99. p. 148.
