United Kingdom House of Lords Decisions

This case originated in an action by the respondent Mitchell, tacksman of the Kerse toll-bar, raised before the justices of Stirlingshire, against the appellants, founding on the statutes 34 Geo. III. c. 138. and 50 Geo. III. c. 16. and the general road act (4 Geo. IV. c. 49.), for payment of penalties in respect of an evasion of the toll bar by using carriages in travelling on the tracking paths or roads upon the banks of the Forth and Clyde canal. The justices having assoilzied the appellants, Mitchell brought the case under review of the Court of Session by bill of advocation, on advising which Lord Eldin pronounced the following interlocutor:—

“Remits to the justices of Stirlingshire, with instructions to recal their interlocutors against the complainers (appellant); to find that all persons who

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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 to find the respondents liable in all the expenses hitherto incurred by the complainer,” &c.

This interlocutor having been brought under review of the Inner House, their Lordships recalled it, and passed the bill; and a great deal of procedure took place, which resulted in a judgment by the Court (7th July 1827), finding 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 forfeiture and penalties imposed by the statutes libelled on;” and remitting to the Lord Ordinary “to ascertain the amount, and decern for the same,” which was accordingly done on the 20th November thereafter. ¹

The appellants having appealed, the following judgment was pronounced:—

“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 in that Court, it is ordered and adjudged by the Lords Spiritual and Temporal, in parliament assembled, that the cause be remitted back to the Second Division of the Court of Session to consider and state their opinion whether the Court has, by the law of Scotland, any jurisdiction, upon a bill of advocation, to find a defender liable in penalties under the acts in

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¹ 5 S. D. 909 (new ed. 843).

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the pleadings in the cause mentioned, or either of them, such defender not being convicted before a justice or justices 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 Lord Ordinaries, upon this question.” ¹

In compliance with the above remit the Second Division consulted the other Judges, who delivered the following opinion:—

“In answering this question we are not disposed to adopt the argument of the defenders on the absolute incompetency, under any circumstances, of advocation from the judgments pronounced by the Quarter Sessions. The statute merely provides, “that if any person or persons shall think himself, herself, or themselves aggrieved by the judgment of the Quarter Sessions, it shall be lawful for such person or persons to apply for redress by summary complaint to the Court of Session.” And considering that the right of review by advocation is one which might, at common law, have been competently exercised, we do not think that the pointing out in the statute of a summary mode of redress by complaint can, in sound construction, be held to exclude that right. But then, of course, no judgment or finding can be competently pronounced by the Court in such advocation, which is inconsistent with the provisions of the statute. The express provision of the statute in regard to penalties for the evasion of toll-bars is, “that any person 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

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¹ See 4 Wilson and Shaw, p. 162, 14th July 1830.

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such offence forfeit and pay to the said trustees, or to their treasurer for the time being, the sum of 20 l. sterling.” In the present case there was no conviction before one or more justices: on the contrary, the justices, adopting a particular view of the legal effect or relevancy of the pursuer's averments, found it unnecessary to proceed to proof, and at once assoilzied the defenders. Now, in these circumstances we do not consider an advocation to be incompetent; and, on the supposition of the judgment of the justices being erroneous, we think that it would have been competent in such advocation to remit the case to the justices, with instructions correcting their error, and directing them to allow the pursuer a proof, and to proceed to determine the case in terms of the statute.

But by the interlocutor appealed from, the defenders are found guilty of evading the toll-bar; and a remit is made to the Lord Ordinary to ascertain the amount of the penalties. It appears to us that this mode of procedure is not only unauthorized by, but is contrary to the provision of the statute, which requires a conviction of every such offence, “on the oath or legal testimony of one or more credible witnesses before any one or more justices of the peace for the county of Stirling.” And therefore, in answer to the question now put to us, we submit, under the above explanation, that in our opinion “the Court of Session has not, 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 or justices of the peace.””

The Judges of the Second Division concurred in this

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