Scottish Court of Session Decisions

Roberts, a sheriff-officer at Bathgate, presented a petition in the Sheriff-court of Linlithgow, alleging that, as he was driving a horse and gig through West Whitburn toll-bar he was asked to pay toll; that he refused, explaining that his ticket had been taken at another toll-bar, and declining to pay an additional 3d. at West Whitburn; that thereupon Wilson, the tacksman, seized and detained the horse and gig; and praying for restitution of the horse and gig, or otherwise for payment of,£100 as their value. After a proof, the Sheriff-Substitute ( Home) pronounced this interlocutor:—“Finds that this is an action brought by the

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petitioner against the respondent solely for the recovery of, and delivery up of, his horse, gig, and harness, alleged to have been illegally seized and detained from him by the said respondent: Finds that such an action is peculiarly competent in this Court, and that all questions, even if not originally competent to he raised in the Inferior Court, may be competently inquired into in order to arrive at a decision in the proper matter at issue: Therefore repels the preliminary plea contained in the respondent's additional plea in law, also his third plea in law, that all parties interested have not been called; and, upon the merits, finds it proved that the toll-bar called the West Whitburn Bar was erected in the year 1851 by the Glasgow and Shotts Road Trustees, on their Great Turnpike Road, leading from Glasgow to Edinburgh, and running in a direction from west to east, through the county of Linlithgow: Finds that at the part of said road where said toll-bar was so erected, and for a space on both sides of the same, the road called the Cleuch Road, crossing from north to south through the said county, runs along and coincides with said Glasgow and Edinburgh road: Finds that for many years after the erection of said toll-bar all persons travelling upon said Cleuch Road, and crossing through said bar, were charged for toll-dues, and paid the same without any serious objection being made thereto: Finds that latterly for some years certain parties who had occasion to use said road were exempted from paying at said bar, viz., those who had paid it, and had tickets from the East Whitburn Bar on the north, and Longridge Bar on the south, being both toll-bars on said Cleuch Road, and within the statutory distance of said West Whitburn Bar: Finds that the petitioner is a sheriff-officer, and has been, as such and otherwise, for many years past much in the habit of travelling upon both said turnpike roads, and very frequently, both in his own and hired vehicles, of passing through said bar: Finds that in doing so he, during all said years, like others, paid his toll-dues or produced his ticket, though this last may have sometimes been dispensed with, as he was well known to the people in charge of said toll-bar: Finds that, shortly before the time when this action was raised, some grumbling arose in the neighbouring locality as to said toll-bar, and doubts as to the legality of demanding either money or ticket at the same from parties passing along said Cleuch Road, but that no serious endeavour was made to try the question or to get rid of the same: Finds that upon the 10th of October 1867 the said petitioner was travelling southward upon said Cleuch Road, in his own gig or vehicle, upon business; that he had passed Ballincrieff and East Whitburn Bars on said road, at the former of which he had paid and got a ticket, and which he had delivered up at the latter, not being of any further use according to the regulations of either road: Finds that on coming to the said. West Whitburn Bar he was asked by the toll-gatherer's wife for his ticket: Finds that he took no notice, but drove on: Finds that the respondent, the real tacksman of the toll there, happening to be at the toll at the time, ran after the petitioner, and stopped his vehicle by seizing the horse by the head: Finds that he demanded either to be paid the toll-dues or to be shown a ticket clearing the same: Finds that the petitioner refused to do either, and that they wrangled about it for some minutes, the respondent still holding the horse by the head: Finds that the petitioner and another person who was with him in the machine at last jumped out, and both, without farther parley, walked off, and left the horse and vehicle in the hands of the astonished respondent: Finds that the respondent upon this almost immediately also quitted his hold of the horse, and returned to the toll-bar, and took no charge whatever of them afterwards: That they stood for some time abandoned on the road, until, at the suggestion of some of the neighbours, they were taken by the toll-gatherer's wife and tied for safety to the side of the toll-gate, and at last, after some hours, were led away by the order of the Whitburn constable as a derelict to Mrs Eddie's stables there: Finds that the petitioner, after so abandoning his horse and machine, proceeded to, and directly hired a vehicle at Whitburn, to go to Croftbead, and that on his return through said East Whitburn toll-bar, some hours after, he saw his said horse and vehicle still standing there, but made no inquiries about them: Finds that he knew their whereabouts in Mrs Eddie's stables from said constable next morning, and that he knew he might have had them again by sending for them, but that he preferred placing the matter in his lawyer's hands, by whom, after a formal demand for their restoration, the present action was raised: Finds that Mrs Eddie, as no one claimed said horse, machine, and harness in her hands, applied to have them judicially sold, and that a warrant was accordingly granted, and the small sum of £5 was realized for the same: Finds that upon the said 10th of October last the names put up upon said toll-house were those of the toll-gatherer and of a former tacksman, not the then tacksman of the same, but finds no necessity in this case to decide whether this was in accordance with or contrary to the requirements of the Road Act: Finds that the provision for the recovery of toll-dues in the 44th section of the said Act, and referred to in the present petition, is intended chiefly for the benefit of the toll-collector, and not so much for the relief of any party who may have refused to pay the toll-dues, although, perhaps, if too long a delay is allowed at any time to intervene, there might be room for complaint on his part also; but finds no ground of complaint for any such delay on the present occasion, for finds that the respondent, upon the said 10th of October, did not seize the petitioner's horse for the purpose of detaining the same and his vehicle from him: Finds that that purpose was, so far as appears, solely to stop the petitioner himself on his way, and to endeavour, by persuasion, to get him to pay the small sum of toll-dues, or to show cause, by ticket, as he had so often formerly done, why he should not be paid, and that no intention was indicated of taking possession of the whole, or of any of said articles, in order to obtain said payment under the powers to that effect granted by the said Road Act, or for any other reason: Finds that the petitioner had no substantial grounds for jumping at such a conclusion, and for so hastily abandoning his property, and leaving it upon the road to be taken care of by others: Finds, that even after he had thus run away so hurriedly from the same, that he might have had it all again in fact by merely putting forth his hands, both that same night and next day, and at any time before said articles were judicially sold,—the respondent never having asserted, or ever having pretended any right of any kind to the same, and the petitioner having been informed of and well knowing the same: Finds, therefore, in the above circumstances,

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that the petitioner has no competent grounds for demanding from the respondent the restoration or delivery to him of his said horse, gig, and harness, or for their value, whatever claim on the part of the petitioner said respondent may have made himself liable to otherwise for having illegally, if it so turn out, molested the lieges, and stopped him on his road, as above mentioned, and demanded toll-dues from him contrary to law: Assoilzies the respondent accordingly, and refuses the prayer of the petition: Finds him entitled to his expenses,” &c.

The Sheriff ( Monro) adhered.

Roberts advocated.

Strachan ( Clark with him) for advocator.

Lancaster and Deas, for respondent, were not called on.

At advising—