Scottish Court of Session Decisions

It is provided by 1 and 2 William IV. (the General Turnpike Act for Scotland), that if any person, not duly qualified, “shall nevertheless presume to act as a trustee in the execution of any such act, every such person shall for every such offence forfeit and pay the sum of £20 to any person who shall prosecute for the same, to be recovered with expenses, by summary action before the sheriff of the shire in which such road is situated, or in the Court of Session; and the person so prosecuted shall prove that he is qualified as aforesaid, or otherwise shall pay the said penalty, without any other proof or evidence on the part of the prosecutor, than that such person has acted as a trustee in the execution of any act for making, repairing, or maintaining any turnpike road.”

By the Ayrshire turnpike act (7 and 8 G. IV. c. 109), a person is qualified to act as road-trustee, if in “the actual possession and enjoyment as proprietor or liferenter of the dominum utile of lands lying in the said county of Ayr, valued in the cess-book of the said county to the extent of £100 Scots per annum, and the heir-apparent of every person possessed of the dominum utile of said lands to the extent of £200 Scots of valued rent;” or if, “where lands are not valued, the proprietor of such lands yielding £200 sterling of real rent, and the chief magistrates of the burghs of Ayr and Irvine, and of the towns of Kilmarnock, May-hole, and Newton-upon-Ayr for the time being, and in the absence of the chief magistrates of any of the said burghs, the senior magistrate thereof present at each meeting shall be, and they are hereby nominated and appointed trustees for making and repairing, widening or altering and keeping in repair the roads made by the trustees under the said recited acts, or authorized to be made in virtue thereof, and the cuts or communications authorized to be made by this act,” &c. The penalties are made recoverable “by summary action.”

William Brown of Greenockmains was possessed of the lands of Baird-side, valued at £10 Scots; and of the chief part of the lands of Greenockmains, valued in cumulo at £93, 8s. The other proprietor of these lands was Alexander Hamilton, writer in Mauchline, who, in 1826, made an arrangement with Brown for dividing the valuation between themselves, allotting only £1 to himself, and the rest of the valuation to Brown. According to this proportion, Brown paid all the public burdens, and the effect of the agreement in this respect was made to draw back to the date of Hamilton's entry to the land. The real rent of the estate possessed by Brown was said to exceed £300 per annum. He attended several meetings of the road-trustees under the above act; and, in 1833, Dugald Hamilton, surgeon in Mauehline, brother of Alexander Hamilton, presented a petition and complaint concluding for five statutory penalties, of £20 each, in respect of five meetings attended by Brown without being possessed of the statutory qualification.

Brown alleged that this petition was presented out of revenge, as he had taken a share in dismissing Alexander Hamilton from his office of treasurer to one of the road-districts, and he pleaded, 1. That the petitioner should be viewed as identified with his brother Alexander Hamilton, who would have been personally barred by his agreement as to the apportionment of the valuation of Greenockmains, from stating that Brown had not the full qualification of £100 Scots of valuation. ^* 2. That a petition and complaint was not a “summary action” under the statute; and, 3. That as he had acted bona fide, and had paid public burdens for many years as upon a valuation exceeding £100, he should not be subjected in penalties, although upon the division of a cumulo valuation, it appeared that his qualification fell a very little short of the statutory amount.

Dugald Hamilton pleaded that there was no discretion left with the Court, and they were constrained to impose the penalties, as the amount of real rent could not be looked at, except where the lands were not valued.