Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 BURGH-ROYAL.

Robert Fall and Magistrates of Dunbar
v.
Ferguson, &C

Date: 16 February 1776

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The public streets of a royal burgh belong to the Crown; and the Magistrates and Council have no power to appropriate any part thereof as private property: so found 3d November 1740, Miller against Magistrates of North Berwick, observed by Kilkerran, page. See also case of Scot of Brotherton against The Magistrates of Montrose, 27th February 1762, 111 New Coll. No. 189. (The case of the Town of Aberdeen as to the New Inn is mentioned in these papers.)

These cases came to be considered in a dispute betwixt Mr Fall and certain other inhabitants of Dunbar, about shutting up the Backraw of Dunbar, of which the Magistrates had given a feu to Mr Fall. In this case the Backraw was no part of the public street of Dunbar. It was no more than a road from the circumjacent country leading into the Town, and which, dividing into two at the end, one branch constituted the Backraw to the north, which was to be shut up; the other to the south, equally convenient, remaining open. The Justices had given their opinion, so far as it was a road for the country, that the Backraw might be shut up without inconvenience; and Mr Fall offered that the south road, proposed to be used instead of it, should be made 21 feet in breadth, and be paved and repaired by him and the inhabitants of Dunbar, a few excepted, Town-Council and Magistrates, approved of the measure. The Lords, 16th February 1776, “found that the Magistrates of Dunbar, as administrators of the burgh of Dunbar, had power, for the benefit of the burgh, to shut up the Backraw, the road in question. But found that the charger is bound to widen and repair the south road, as mentioned in the minute, (i. e. to the breadth of 21 feet, and to pave it,) before he should be at liberty to shut up the Backraw; and found expenses due.

Against this interlocutor, the decision in the case of Turner of Pinnaclehill, observed by Falconer and Kilkerran, was strongly urged. But the Lords thought that, in this case, the Backraw was not properly a road, and therefore that the Justices of Peace had nothing to do with the matter;—and that Magistrates of burghs are vested with powers to regulate the entry to, or by lanes of the burgh, as they think fit, for the benefit of the burgh.

Prison of Cromarty.

In the year 1672 the Magistrates and Town Council of the royal burgh of Cromarty, with concurrence of certain of the burgesses, applied to the Parliament of Scotland, setting forth their poverty and want of trade, and praying to be relieved of the burden of sending a Commissioner to Parliament, and granting procuratory for resigning their privileges as a burgh-royal, into the hands of his Majesty or the Estates of Parliament, Lords of Exchequer, and Convention of Burghs, to remain with his Majesty ad perpetuam remanentiam. An Act passed accordingly. The King, with consent of the Estates, accepted of the resignation, and ordained the name of the burgh to be expunged out of the rolls of Parliament; and that thereafter they should have no Commissioner in Parliament, or Convention of Burghs, and be no more accounted a burgh.

In 1685 it was erected into a burgh of barony, by Act of Parliament, in favours of the Viscount of Tarbat, and appointed the head burgh of the shire.

From the time of its being a royal burgh, the Town House and Prison were continued; but both having become ruinous, they were lately rebuilt by George Ross, Esq. proprietor of Cromarty. But doubts having arisen concerning the power of Magistrates, or other officers of the law, to incarcerate prisoners in this new prison; (7th March 1776,) a petition was given into Court, in name of Mr Ross, the Sheriff, and certain of the Justices of the Peace of the county, and the baron-bailie of Cromarty, for having it declared a lawful public prison; to the effect, that persons for civil debts, or causes whatsoever, might be imprisoned therein, in the same manner as in other public prisons of the kingdom.

The Lords remitted the petition to the Lord Hailes, Ordinary on the Bills, to inquire into the facts, and report.

See Ersk., B. 4, Tit. 3, § 13, 13th March 1623, Baillies of Dunse; Dictionary, voce Prisoner, Kilkerran; E. of Hyndford against The Burgh of Hamilton, 9th December 1740; 23d December 1682, Williamson against Bailies of Hamilton.

It was said that there is a prison in similar circumstances in the Town of Greenlaw, a burgh of barony, but head burgh of the county of Berwick. The maintenance of prisoners in this prison is defrayed at the expense of the county. The Sheriff administers the benefit of the Act of Grace; and he, and the jailer, are liable for the escape of prisoners.