United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1830) 4 W&S 162

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1830.

2 d Division.

No. 28.

John Morrison and Others, Appellants.—Spankie—Russell

v.

James Mitchell, Respondent.—Brougham—Wilson

July 14. 1830.

Lord Cringletie.

Subject_Jurisdiction — Road — Statutes, 33. Geo. III. c. 138.; 4. Geo. IV c. 49.—

Question remitted for the opinion of all the Judges, Whether, where a party, accused of evading a toll-bar, has been assoilzied by the Justices of Peace from a demand for statutory penalties, the Court of Session has jurisdiction, in an advocation, to find him guilty, and award the penalties.

By the statute 8. Geo. III. cap. 63. constituting the Forth and Clyde Canal Company, they were authorized, besides forming the canal, “to do all other matters and things which they shall think necessary and convenient for the making, extending, improving, preserving, completing, and using the said navigation, in pursuance and within the true meaning of this Act.” A canal was accordingly made between Port Dundas, near Glasgow, and Grangemouth, on the river Forth; and along the banks a towing-path was formed. The Company carried both goods and passengers between these two places.

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In 1794, a statute (33. Geo. III. c. 138.) was passed, authorizing roads to be made in the county of Stirling, tolls to be levied, and penalties imposed. In particular, it was inter alia enacted, “That if any person or persons, owning, renting, or occupying any lands or other premises, near to any turnpike which shall be erected in pursuance of this Act, shall knowingly and willingly permit and suffer any person or persons to pass over the same, or through any gate, passage, or way, with any coach, chariot, landau, berlin, calash, chaise, chair, litter, waggon, wain, cart, carriage, horse, ass, mule, or any other sort of carriage or cattle, or shall open any new road without the consent of the Justices of the said county of Stirling, obtained upon an application made to them, convened at their General Quarter Sessions, (which application the said Justices are hereby empowered, authorized, and required, to order to lie upon the table till their next General Quarter Sessions, and then, and not sooner, they are to determine the propriety of opening the said road), whereby the payment of the tolls, duties, or pontage, by this Act laid on and imposed, is or shall be avoided; every such person or persons so offending, and the person or persons riding, or driving, or owning such coach, chariot, landau, berlin, chaise, calash, chair, waggon, wain, cart, carriage, or cattle, or riding, leading, or driving such horse, mule, or ass, and being thereof convicted on the oath or other legal testimony of one or more credible witness or witnesses, before any one or more Justices of the Peace for the said county of Stirling, shall, for every such offence, forfeit and pay to the said trustees, or to their treasurer for the time being, the sum of 20s. sterling; which sum, in case the same be not forthwith paid, shall be levied by distress and sale as aforesaid;” but declaring, “That no person or persons shall be liable to pay the toll or duty at any turnpike or toll-gate, erected or to be erected on the said roads, for any carriage, horse, or beast, which shall only cross any of the said roads, or shall not pass above one hundred yards thereon.”

In virtue of this statute various roads were formed, and in particular one from Falkirk to Grangemouth, running parallel with the towing-path of the canal; and another from Beancross to Kerse-bridge, which crossed the Falkirk road, and also the towing-path, at a place called Dalgreen, almost at right angles. At the point of junction with the Falkirk road a toll-bar was erected, at which was levied tolls from those travelling between Falkirk and Grangemouth. Of this toll-bar (which was commonly called the Kerse toll) the respondent Mitchell became tacksman in 1821.

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For several years prior to this time the Canal Company had been in the practice of carrying passengers, in coaches and other conveyances, along the towing-path between Grangemouth and one of the locks on the canal called Lock No. 16. situated in the immediate neighbourhood of Falkirk,—there being in the intervening space a great many locks. In proceeding from Lock No. 16. to Grangemouth, the passengers were carried, for a short distance, along a road almost perpendicular to the line of the canal, to Falkirk; whence they were re-conveyed to the banks of the canal to a place called Bainsford, and so brought along the towing-path to Grangemouth. On returning from Grangemouth to Lock No. 16. they travelled along the same line. They thus avoided the turnpike-road between Falkirk and Grangemouth, but necessarily crossed the road between Beancross and Kerse-bridge at Dalgreen. No toll had hitherto been exacted; and several persons, and among others the appellants, had established coaches and carts for transporting the passengers and their luggage along the above line, between Lock No. 16. and Grangemouth. One of the appellants was the driver of a coach belonging to the Company ; but the horses were his own property, for which the Company paid him hire, and they received the fares. The others were proprietors of their respective coaches and horses; but they all had the sanction of the Company to travel along the towing-path.

Mitchell, the tacksman of the Kerse toll-bar, having insisted on payment of toll, and the appellants having refused payment, he presented a petition to the Justices of the Peace of the Falkirk district, founding on the above statute, and another in 1810 prolonging it, and praying that they should be found liable in the statutory penalties for evasion of the toll-bar. This petition was dismissed, on the ground that Mitchell had no right in his own name to sue for the penalties. He then, with concurrence of the treasurer of the road-trustees, presented another petition, from which the Justices assoilzied the appellants, with expenses,— “in respect that the Turnpike Act specially exempts from payment of toll, and from all claim for penalty on the ground of evasion, all those who merely cross the turnpike-road, and do not travel more than one hundred yards thereon; and that the pursuers themselves plead that the defenders travelled altogether on the canal bank, and not on the turnpike-road; and therefore that the defenders have been guilty of no evasion subjecting them to the penalties of the statute.” To this judgment the Quarter Sessions adhered, in respect that it was “admitted

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by the parties, in presence of the Court, that the coaches in question, in travelling from Lock No. 16. to Grangemouth, travelled on the canal bank from Bainsford to the latter place, but did not travel on the Kerse turnpike, except in crossing the same where it crosses the canal bank at Dalgreen.” Of these judgments Mitchell presented a bill of advocation, on advising which Lord Eldin remitted to the Justices, “with instructions to recall their interlocutors against the complainers; to find that all persons who use coaches or other carriages for the purpose of travelling upon the tracking-paths or roads upon the banks of the canal, must be considered as evading the tolls in the true meaning of the statute, and liable to the penalties therein contained; to allow the complainers a proof of their allegations, and thereafter to decide according to the rules of justice;” and found the appellants liable in expenses. The Court afterwards recalled this interlocutor, and passed the bill. ^*

After some intermediate procedure in regard to the sisting and withdrawing of the Canal Company and the road-trustees as parties, Lord Cringletie reported the cause to the Court on Cases; and their Lordships, on the 7th of July 1827, found the appellants “guilty of evading the Kerse toll-bar, by driving their coaches and carts along the banks of the canal, and therefore liable to the advocator in the forfeitures and penalties by the statute libelled on;” and remitted to the Lord Ordinary to ascertain the amount thereof, and decern for the same, and found expenses due. ^†

Morrison and others appealed.

When the cause came to be heard at the bar, an objection was stated to the jurisdiction of the Court of Session to pronounce the above interlocutor, it being maintained, that the statute conferred no power on the Court of Session to convict, but only on the Justices; and reference was made to § 108–112. of the General Turnpike Act, 4. Geo. IV. c. 49.

As this point had not been stated in the Court below, the House pronounced this judgment:—

“Inasmuch as a question has been raised at the bar of this House respecting the jurisdiction exercised by the Court of Session in this matter, which does not appear to have been discussed or considered by that
_________________ Footnote _________________

* Mitchell then brought a separate advocation of the original process.

† 5. Shaw and Dunlop, p. 909.

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Court, it is ordered and adjudged, that the cause be remitted back to the Second Division of the Court of Session, to consider and state their opinion whether that Court had, by the law of Scotland, any jurisdiction, upon a bill of advocation, to find a defender liable in penalties under the Acts in the pleadings in the said cause mentioned, or either of them, such defender not being convicted before a Justice of the Peace; and the said Second Division of the Court is hereby required to take the opinion of the Judges of the other Division of the Court, and of the permanent Lords Ordinary, upon this question.”

Solicitors: D. Caldwell— J. Fraser,—Solicitors.

1830