Edinburgh and Glasgow Railway Company v. The Magistrates of Linlithgow . (a) [1859] UKHL 3_Macqueen_691

UKHL

Edinburgh and Glasgow Railway Company v. The Magistrates of Linlithgow . (a)

[1859] UKHL 3_Macqueen_691

REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.

No. 29

Edinburgh and Glasgow Railway Company, Appellants v. The Magistrates of Linlithgow, Respondents. (a)

1851 . March 10th , 11th , 17th , 18th , 24th .

1852 . July 1st .

1853 . June 24th , 30th .

1858 . May 31st .

1859 . July 20th , 21st , 22nd , 25th , 26th , 28th .

Subject_ Remit — Amended Record. —

Rubric.

Certain Interlocutors of the Court of Session were appealed from. Upon a remit to that Court, the record upon which the Interlocutors had been pronounced was amended; but no new Interlocutor was pronounced. Consent under these circumstances on both sides, that the cause should be argued and disposed of on the same footing as if the Interlocutors appealed against had been pronounced on the record as amended. This course allowed by the House of Lords.

Subject_ Summary as to Burgh Customs. —

that purpose. Any man coming upon the railway would be a trespasser; p. 723.

The Court of Session having decided that inasmuch as the Magistrates of Linlithgow were entitled, under certain ancient Royal grants ratified by the Scottish Parliament, “not only to levy customs on goods brought within the burgh for sale, use, or consumption, or carried out of the burgh, but, with the explanation and support of usage, to levy customs on goods carried through the borough,”—therefore they were entitled to levy customs on goods brought within, or carried out of, or carried through the burgh on the Railway of the above Appellants . Reversal by the House.

Per the Lord Chancellor: When we consider what the nature of this new transit by railway is, I do not think that there could be any intention that it should be liable to a toll; p. 713.

Per Lord Cranworth: The toll could only be levied by the officer of customs coming upon the railway, the train being compelled to stop; but no provision is made for

Footnote

( a ) See the first Report of this Case, vol. i. p. 1.

Page: 692 ↓

Per the Lord Chancellor: How is the “customer” to stop an express train between Edinburgh and Glasgow when it passes Linlithgow like a flash of lightning? He would have some difficulty in resorting to a distress, the usual remedy for the non-payment of a toll; p. 714.

Per Lord Chelmsford: The description and character of these tolls, and the grounds upon which they depend, are so inapplicable to the new state of things arising out of the creation of a railway, that it would have been almost an idle precaution to provide against the demand by an express exemption; p. 730.

Per the Lord Chancellor: It should always be kept in mind that the transit toll now claimed is not for passing over the land of another, but for making use of land which is the Railway Company's own property, and is exclusively in their possession; p. 717.

Per Lord Chelmsford: If the town customs arise from an obligation to repair, and are a compensation for the use of the streets and ways; if they cannot be taken from persons who do not pass through the town, or over any of the ways belonging to it, then the question upon this toll or custom seems to be capable of an easy solution in favour of the Railway Company, as they use a way of their own over their own property, and derive no benefit at all from the use of any ways belonging to the burgh; p. 729.

Subject_ Summary as to Bridge Customs. —

Under an Act of the Scottish Parliament, the Magistrates were entitled to levy custom in respect of passengers, goods, &c., crossing the river Avon at any point downwards from the Linlithgow Bridge to the mouth of the stream, a distance of twelve miles. Within this range the Railway Company's line crossed the stream by a viaduct. The Court of Session decided that the Magistrates were entitled to claim custom in respect of the traffic by the viaduct, as being an encroachment on or evasion of the rights of the bridge. Reversal by the House.

Page: 693 ↓

The Lord Chancellor's remarks as to the Bridge Customs, infrà infrà , p. 717.

Lord Cranworth's remarks as to the Bridge Customs, infrà infrà , p. 724.

Lord Chelmsford's remarks as to the Bridge Customs, infrà infrà , p. 730.

English Judges .—Not to be consulted on Scotch Appeals; pp. 709, 741.

Of the pleadings and the decision in the Court below,—of the argument at the Bar of the House in 1847,—of the proceedings for a remit in 1848,—and of the Scottish judicial deliberations pursuant to that remit in 1849,—a full account is given (in compliance with a desire expressed by the Law Peers) in the first volume of these Reports (a) .

Argument of 1851.

The following was the argument on the hearing at the Bar of the House in the Session of 1851, when Lord Truro occupied the woolsack, and was assisted by Lord Brougham .

The Appellants' argument as to the Burgh Customs.

Mr. Bethell , Mr. Hope , and Mr. Penney , for the Appellants, opened by observing that the question was one of great simplicity, which in this country would be very easily disposed of. The borough of Linlithgow was supposed to have had great privileges, being in the vicinity of the royal palace. It had the privilege of levying certain tolls and customs on articles imported into, and carried out of, the borough.

[ Lord Brougham : The Pursuers allege that a consideration was not necessary; and that, if necessary, it was given.]

Their argument is that it is enough if they have a grant. We, on the other hand, maintain that the obligation and the grant are correlative. The railway statute authorizes the Company to traverse a part of the liberties of this borough. The Company have

Footnote

( a ) Page 1.

Page: 694 ↓

[The Lord Chancellor (a) : Is it a toll on each package, or how?]

It is a toll upon all goods brought into or carried out of the town of Linlithgow.

[The Lord Chancellor : Is it on each package?] The railway carriages must stop for inspection.

[ Lord Brougham : How was the calculation to be made?]

The pleadings merely say, “according to use and wont.”

Upon the question as to the fact of a ratification by Parliament, Erskine (b) affirms, as to Private Acts, that they were not properly laws , but that they merely confirmed what was formerly validly granted.

[ Lord Brougham : In a reduction of a Private Act, the reduction would be confined to the interest of the party suing the reduction.]

Any other party might impeach it.

[ Lord Brougham : Where is there a note of what took place here when Lord Cottenham , Lord Campbell , and myself were present?]

Footnote

( a ) Lord Truro.

( b ) B. 1, t. 1, s. 39.

Page: 695 ↓

We are afraid there is no note (a) .

[ Lord Brougham : We were rather against the judgment below.]

We contend that the principle of toll-thorough applies here.

[ Lord Brougham : The consideration must move from the party claiming, to the other party. It must not be a general consideration.]

The true principle was that applicable to toll-thorough, and was to be found in Truman v. Walgham (b) , where the Court held, that there must be a consideration for the grant, and that the consideration must be co-extensive with the right asserted. To the same effect was the decision in Brett v. Beals (c ), where it was held that the particular individual sought to be charged must partake of the benefit arising from the obligation on the part of the person claiming the toll. The benefit of the public, in other words, the consideration for the toll must be co-extensive with the right claimed. This was held in Brett v. Beals (d) . The particular individual sought to be charged must be shown to have enjoyed the benefit. The Courts are exceedingly jealous of claims of right to levy tolls on the subject; for, as was observed in an old case ( Smith v. Shepherd (e) ), “The right of the public to pass freely along the highway was a right anterior to all prescription.” The Magistrates must show some cause to entitle them to this toll, by doing something in respect of it for the public advantage. Without this or some such consideration, the grant is bad.

Footnote

( a ) Sed vide suprà Sed vide suprà , vol. i. p. 8.

( b ) 2 Wilson, 296.

( c ) 10 Barn. & Cres. 508.

( d ) 1 Moo. & M. 416; 10 Barn. & Cr. 508.

( e ) Cro. Eliz. 10; Moore, 574.

Page: 696 ↓

[The Lord Chancellor : Suppose they are brought in to be sold?]

There is nothing to warrant the notion that it was transit duty. Four cases were cited. The first was called the Fleshers' case(a) . The reason of the decision in the Fleshers' case agrees with the law of England. It is, in fact, an authority quite conclusive against the present claim. The next case was that of Lauder

(b) .

[The Lord Chancellor : Is every borough in Scotland subject to this obligation of repairing roads? Does such an obligation exist independently of the charters?]

[ Lord Brougham : That very point was put to the Bar formerly. It bears very importantly on the case.]

The Session Papers prepared for the Court threw light on that point.

[The Lord Chancellor : Those papers were consequently part of the record.]

The other side did not object to the use of them.

[The Lord Chancellor : There can be no consideration necessary to do that which you are by law bound to do.]

There can be nothing to support the claim of transit duty, unless some accommodation corresponding and correlative be established.

The other two cases were those of Ayr (c) and of Wigtown (d) ; but neither the Ayr case nor the Wigtown case had been brought to the House of Lords. From the pleadings in the Wigtown case it appeared that it was decided without any reference being made to the Linlithgow, Lauder, or Ayr cases, and no allusion was made to the argument as to the lawfulness

Footnote

( a ) Morr. 10886.

( b ) Morr. 1987; 5 Brown's Sup. 819.

( c ) Morr. 1971.

( d ) Fac. Coll., vol. ix. p. 179; 12 Shaw & Dun., 289.

Page: 697 ↓

[The Lord Chancellor : From the fact of the obligation or of the repairs being made, it is said that a consideration was given; but they say that after such a lapse of time a consideration should be presumed.]

They now allege consideration, and endeavour to support the grant on that ground.

[The Lord Chancellor : Is there no part of the charter which points to a consideration?]

[ Lord Brougham : There is no Interlocutor on the new issue joined on the amendments.]

There is not. The Judges simply adhere to the old judgment.

[ Lord Brougham : The Interlocutors under appeal are the only judgment before us. There is no different issue. We sent the case back with leave to raise a different issue.]

But your Lordships gave no authority to recall the former judgment.

[The Lord Chancellor : There is a new issue now.]

When the House means to give leave to recall their Interlocutor, it gives express power for that purpose.

[The Lord Chancellor : Suppose our judgment to proceed on the amended matter, it would be on matter not adjudicated upon by the Court below.]

In the Duke of Hamilton's case (a) the House gave power to the Court below to recall their Interlocutor.

Footnote

( a ) suprà suprà , vol. i. p. 13; 7 Bell, 1.

Page: 698 ↓

Usage is merely interpretative of the grant, and in the Lauder case the matter was determined, and cannot now be varied. There can be no benefit to the Railway Company from any road which the borough does not keep in repair. The facts are not yet ascertained. The order of proceeding in this case is contrary to all precedent. The roads and streets of Linlithgow are utterly useless to the Company. No saving of tolls was introduced in the Act.

[The Lord Chancellor : How was the toll proposed to be taken? There was a case in this House as to the Darlington Railway, where a mode was prescribed for levying the tolls (a) .]

The argument was that when once the usage was established, it was to be taken as part of the charter; although it was an usage to levy on goods brought by means of the streets and public thoroughfares of the borough, as to which it was impossible that the Railway Company could derive any benefit, as they could not use those streets and thoroughfares. Some reliance was placed on a case of Roe v. Thompson (b) , but it had no resemblance to the present. When a grant is very old indeed, it may, perhaps, be supported without any consideration; but we say that usage to levy any toll without any benefit to the public must be bad. The Magistrates originally said that they were not bound to show consideration. Now, it was shown that the ancient decision in the Fleshers' case was founded on a great principle; but this has been lost sight of by the majority of the Judges below. The case, therefore, is one of extreme simplicity. The new allegations are supported by no evidence. They have departed from the original pleadings. In the Fleshers' case no consideration was

Footnote

( a ) 11 Cla. & Finn. 590.

( b ) 4 Barn. & Adol. 476.

Page: 699 ↓

The Appellants' argument as to the Bridge Customs.

As to the bridge dues, under the grant from the Crown, the Magistrates claimed a right to levy certain tolls at certain fords below the bridge. The Company were bound to construct a viaduct. The Magistrates said: You shall pay for crossing over your own viaduct as if all your passengers were travelling over our municipal bridge. This was not very reasonable. The Magistrates endeavoured to give a colour to it by a clause in the Railway Act, which declared that if their receipts should be diminished they should be entitled to compensation, and this right of indemnity was given for the difference. It of necessity followed that they could not exceed the difference, otherwise they would be enormous gainers. In dealing with this question, the laws of both countries were the same. We say that this was a grant of a duty payable only at the bridge for the repair of the bridge. The viaduct is at a place where no toll was previously levied.

(a) is entirely in our

Footnote

( a ) 1 Shaw, 515. Of the Jinkabout case, the following account is given by Lord Moncreiff in his opinion as set out in the pleadings:—

“This was the nature of the case, which is commonly called the case of Jinkabout; Magistrates of Linlithgow v. Mitchell and others , June 21, 1822. The magistrates or their officers having been remiss in attending to their interests at all points, in so long a space, a certain class of the inhabitants of the district had made a practice of crossing the river at a low point, and evading the duty. The very name which the place acquired, Jinkabout, contained in itself evidence that that was the nature of the practice,— the Scotch word plainly meaning a turning round to avoid something which was not convenient. However that might be, the

Page: 700 ↓

Footnote

fact was so; and when the magistrates attempted to enforce their claim against parties crossing at that point , the defence stated was, that there had been an use and wont of parties crossing at that point for more than forty years, and that there had not been an use and wont of the magistrates exacting the duty or stopping parties from crossing at that ford of Jinkabout. The case was brought to trial, and sent by an issue to a jury. But the case was tried on the only principle, and in the only form, in which it could be tried legally or consistently. The title of the magistrates being clear by the statute, and the limits defined, the burden could not be laid on them to prove substantively that they had an use and wont of levying the duty for time immemorial at the particular spot in question. But, there being a positive averment by the Defenders of an use and wont for more than forty years, of crossing at that point, and no use and wont by the magistrates of levying the duty from the parties so crossing in that period, the case was brought to trial on an issue, the real meaning of which was, whether the Defenders had had prescriptive possession of immunity . Accordingly, though the magistrates were Pursuers of the action , the Defenders were made Pursuers of the issue , whereby the onus of proving the immunity by prescriptive possession was manifestly laid on them. The issue which was approved of was very awkwardly and obscurely framed, with a view to such a trial; but that this was the nature of it, is plain from the position in which the parties were placed for the trial.

“I speak with great confidence of this, because I was Counsel for the burgh in the case and in the trial. Lord Cockburn was along with me; and Lord Jeffrey was Counsel for the Defenders in the action and the Pursuers of the issue . As Pursuer, accordingly, he adduced a very great deal of evidence, to show a prescriptive use by the tenants of the Duke of Hamilton and others crossing at Jinkabout with carts, horses, &c., extending that possession beyond forty years, and at the same time proving that the duty was not exacted or levied from them. On the other hand, for the burgh, we led a good deal of evidence, with the view of showing that these proceedings had been occasional trespasses, and that on various occasions there had been demands of the duty. But this last evidence was not found to be sufficient, and the evidence for the Pursuers of the issue having been thought so strong, as to establish a prescriptive possession of immunity, the verdict was for the Defenders, Mitchell and others; but it was for them as Pursuers of the issue .

There can be no doubt that this was the real nature and state of the case, and no one who was present at the trial can doubt or does doubt it. And taking it to be so, the case cannot

Page: 701 ↓

Respondents' argument as to the Burgh Customs.

Mr. John Inglis (a) opened, in the absence of Mr.

Footnote

avail the present Defenders; for, in the first place, the very existence of it, and the form of trial adopted, show that there was no doubt whatever of the title of the magistrates by their Act of Parliament; and, on the other, the position which the parties were made to assume in the trial, demonstrates that it was only a case of prescriptive immunity at the particular place that was established by the verdict, and not any immunity against the right of the magistrates generally at any other spot within the limits. At the very best, it was but the verdict of a jury on a special case.

The case in fact then is, that the Railway Company have made a viaduct, by which they carry goods and passengers across the Avon, at a place where no crossing had ever been before. It is said that they have obtained an Act of Parliament authorizing them to do this. But there is nothing in the circumstance of their crossing by a viaduct or bridge which could otherwise exempt them from payment of the duty. If any private party had done the same, having acquired the property on both sides, there can be no doubt that the duty would have been exigible according to its amount by use and wont. And then the question is, whether the Railway Company are exempted from it or not.

( a ) Now Lord Justice-Clerk of Scotland.

Page: 702 ↓

[ Lord Brougham : In the nature of a demurrer.]

[The Lord Chancellor : They must show the exemption.]

The Fleshers' case, so much vaunted, has been discredited by subsequent authorities.

[The Lord Chancellor : I do not see that anything has been done to disturb that case in point of principle.]

We say the Lauder case, the Ayr case, and the Wigtown case are all in conflict with it. When the present case was argued here before (b) , it was not averred that the grant was bad for want of consideration. This doctrine of consideration sounds strange in the ear of a Scotch lawyer. The Lord Justice-Clerk does not understand it. This is not a toll levied on the King's highway. The word toll in ancient Acts

Footnote

( a ) Mr. Anderson was also of Counsel for the Respondents.

( b ) See vol. i. pp. 8, 11.

Page: 703 ↓

Again, it is of no consequence that the goods are not brought in by the roads or thoroughfares of the borough.

(b) ;

Footnote

( a ) Vide suprà Vide suprà , vol i. p. 30.

( b ) De Feudis.

Page: 704 ↓

[ Lord Brougham : It is the same here.]

[The Lord Chancellor : Undoubtedly.]

That the language of Craig will cover transit duties seems very clear. Now, by the practice of the Scottish boroughs, the duties are charged not merely on goods coming into the borough, but on goods going through it. The Assiza de Tolloneis(a) establish this. Lord Moncrieff's opinion

(b) , too, is with us. Such being the import of the word toll, what is the evidence on which we rely in support of the right of boroughs to exact it? There is first the charter of King Robert, giving to the community of Linlithgow the grant of royal borough, the port of Blackness, and the small customs and tolls. The King gives these to the borough precisely as he had had them himself

(d) , reciting that of King Robert, there is a similar grant of the same things. Then there is the ratification by the Act of 1661. The legal effect of ratifications of this description has, indeed, been made the subject of argument on the other side. They have been likened to private instruments; but when all parties are before Parliament the Act is binding on all.

[The Lord Chancellor : A recital in an Act will not bind those who are not within its enacting part.] These ratifications have the effect of demonstrating that the grants which they confirmed were good in law, and we contend that the grant by the Crown, being ratified by Parliament, not only derives efficacy from that ratification, but must be taken to have

Footnote

( a ) Acts of Parl., vol. i. p. 303.

( b ) Vol. i. p. 25.

( c ) suprà suprà , vol. i. p. 1.

( d ) suprà suprà , vol. i. p. 2.

Page: 705 ↓

[The Lord Chancellor : You say it is to be taken in the strongest sense in which, if well pleaded, it would be put.]

Nothing can be more precise or specific than the allegations on this point.

[ Lord Brougham : You plead the table in your summons and in your condescendence.]

We do. Now then as to the authorities. And first as to the much-debated Fleshers' case. If the principle of that case be the law of Scotland, we have misread that law; for according to that case the grant must be supported by a consideration corresponding, and equivalent with it. But in truth the Fleshers' case is of no authority. It arose in a suspension, but suspension is a form of review. The judgment appealed from was by a convention of royal boroughs, and the object was to get rid of a regulation made by that convention. All that the Court of Review did was to refuse the application.

[ Lord Brougham : What are the words of the decree of the convention?]

Page: 706 ↓

The reporter puts the case as if it were a judgment in a declaratory suit, whereas what was done was no more than a mere rejection of the appeal. The jurisdiction of the convention of royal boroughs is peculiar. The decision in this case is singular, not to say mysterious. The doors of the Court were closed. But it is said that the subsequent cases do not, in fact, disagree with the Fleshers'. It is said, for example, that the Lauder case was one of causeway rate or mail, and not one of toll or custom; and therefore the other side maintain that the consideration was matter of necessary implication involving the duty of repair. But royal grants never contained such considerations. The borough was subject to no obligation, except that which arose from its own constitution, which independently of the grant would have bound those boroughs to such repairs. Therefore, the repairs could never have been the consideration of the grant. The next case is that of Oliphant against the Town of Ayr , and then came Wigtown v. Glover . The pleadings in these cases were constantly referred to for the purpose of verifying the reports. Some of these were in manuscript and some in print collected under the title of Session Papers. We request particular attention to the form of the Interlocutor in the Wigtown case, because it will be found to be the model followed by the Lord Wood in the present case. In the other case of Oliphant against The Magistrates of Ayr , we likewise have had access to the pleadings in the Court below, which are to be found in the Arniston Collection, v. 3. preserved in the Advocates' Library at Edinburgh. In that case a proof was gone into, and the final judgment was in favour of the town. The defence of the Magistrates was rested on their charters and immemorial possession and usage. The pleadings and a table of the customs in the Ayr case were delivered in.

Page: 707 ↓

The twenty cases (a) cited are material as showing that in other towns such rates existed; and that the grants of them are in the same terms, or substantially in the same terms, as in the present case.

[The Lord Chancellor : Are the terms of the grants set out?]

They are, and, substantially, they are like those occurring here. If investigation is desired we are ready to enter into it, but in the meantime the case must stand upon averment. Our general position is, that usage is the measure of the right, and the exponent of its exercise. The principle on which we go is this, that wherever goods are found within the limits of the borough, the demand of toll arises. Now, although it may, perhaps, be true that the Crown could not make such a grant as this in the present day, it could in former times; and all the ancient rights of the royal boroughs of Scotland are, by the 21st article of the Treaty of the Union saved to them.

Respondents' argument as to the Bridge Customs.

We now come to the Bridge Customs . By the Act of 1685, the extent of the grant appears. The Magistrates are to keep up the bridge; but after doing so the surplus income is to be devoted to works of public utility. The Jinkabout case (b) settles nothing. It is said these duties cannot be levied. If this objection were well founded, the toll could only be levied where the mode of carriage was the same, as that which existed at the date of the grant. But it is to be observed that the land over which the railway passes is subject to the jurisdiction of the Magistrates. It is burgage property held under the Crown by burgage

Footnote

( a ) suprà suprà vol. i. p. 14. The cases were,—Lauder, Wigtown, Dundee, Ayr, Haddington, Irvine, New Galloway, Sanquhar, Campbelltown, Burntisland, Edinburgh, Stranraer, Annan, Perth, Stirling, Inverkeithing, Dumfries, Dumfermline, Lochmaben, and Musselburgh.

( b ) See suprà suprà , p. 699.

Page: 708 ↓

Such were the arguments addressed to the House in the Session of 1851. The case was ordered to stand over sine die .

1852. July 1 st .

In the following Session, on the 1st of July 1852, Lord Truro (e) (Lord Brougham being present) made the following observations:—

be re-argued by one Counsel on a side, upon the effect of the Act of Parliament on the dues and customs which are in question.

Lord Truro : The attention of the House has been paid to this case, and with more than ordinary labour. It appears to the House to be necessary that the effect of the Railway Act should be more considered by the learned Counsel, than it seems to have been during the former argument. The House are impressed with the idea that the effect of that Act may be important to be considered, and the arguments do not appear to have been addressed so fully to that as, perhaps, the learned Counsel may do on a future occasion. Therefore, we think that the case should

Footnote

( a ) Morr. 1999.

( b ) 25th Feb. 1801.

( c ) 17th July 1711; Suppl. v. p. 74.

( d ) 4 Barn. & Ad. 726.

( e ) Lord Truro had, prior to the delivery of the above remarks, resigned the Great Seal, which was now in the hands of Lord St. Leonards.

Page: 709 ↓

Lord Brougham : I move your Lordships that this case stand over, in order that it may be re-argued by one Counsel on a side.

Nothing, however, was done in the Session of 1852. In the following Session, on the 24th June 1853, it was again ordered that the case should be re-argued by one Counsel of a side, and that the Judges (meaning the English Judges of the Common Law) should attend. But on the 1st June 1853 this order was discharged, on the ground that in a Scotch cause it was not fit that the Judges of England should assist (a) . On the 31st of May 1858 an order was made that the cause should be re-argued, but this order was not acted upon.

1859. July 20 th .

At last, however, on the 20th July 1859, the cause was actually placed in their Lordships' paper for rehearing, and without any restriction as to the number of Counsel to be heard.

The Counsel for the Railway Company on this rehearing were the Attorney-General (b) and Mr. Young . Those for the Magistrates, the Lord Advocate (c) , Sir FitzRoy Kelly , and Mr. Anderson .

The Lord Chancellor (d) directed the attention of the House to the position of the Record, consequent on the remit (e) .

(f) ”

Footnote

( a ) The rule that the English Judges shall not be summoned on a Scotch Appeal or Writ of Error is settled in practice.

( b ) Sir Richard Bethell.

( c ) Mr. Moncreiff.

( d ) Lord Campbell.

( e ) See vol. i. p. 35.

( f ) See the Lords' Minutes of Proceedings, 20th July 1859, and see also the judgment at the close of this Report.

Page: 710 ↓

In the arguments of Counsel the same ground was traversed as on the two former occasions, namely, in 1847(a) and 1851

(b) , with this difference that attention was more specially directed than previously to the words of the Railway Act.

The following opinions were ultimately delivered by the Law Peers.

Lord Chancellor's opinion .

1859. July 28th .

The Lord Chancellor (c) :

My Lords,

in rising to advise your Lordships as to the judgment which I think you ought to pronounce in this very important and long protracted cause, I cannot refrain from expressing the admiration and the pride with which I have perused the opinions given upon the remit by this House to the Court of Session, with directions that “it should be heard in presence before the whole Judges of the Court, including the Lords Ordinary.” Of the thirteen Judges who heard the cause re-argued, only two survive; but the opinions delivered by all of them are on record, and will be a lasting monument of their learning and ability, and of their devoted desire to do their duty (d) .

As to the Burgh Customs.

On the great question so keenly agitated, whether, irrespective of the Railway Acts, the Respondents had or have a right to a transit toll on cattle and goods passing through the burgh or liberties of Linlithgow (e) , I shall not find it necessary to say whether I agree with the majority or the minority of the Scotch Judges. At the same time, I must observe that it ought not to be considered that this is settled in the affirmative, although your Lordships should not reverse that part of the Interlocutors appealed

Footnote

( a ) See suprà suprà , vol. i. p. 1.

( b ) See the argument in the present volume, suprà suprà , p. 693.

( c ) Lord Campbell.

( d ) See these opinions, suprà suprà , vol. i. p. 15 to 30.

( e ) See suprà suprà , vol. i. pp. 1-30.

Page: 711 ↓

It has been argued on behalf of the Respondents that this transit toll is a petty custom ; that the Kings of Scotland, by their prerogative royal, had immemorially a power to tax the lieges without the authority of Parliament, and might, merely for their own benefit, impose such a transit duty within the limits of any royal burgh, they being entitled to make these limits coterminous with a county; that this and all other petty customs were originally imposed with a view to the royal revenue, and were collected by a royal customer; and that they were afterwards granted by the Crown to royal burghs, as they might have been granted to a religious house or to a court favourite wholly unconnected with the locality

Now, my Lords, there is no doubt that the great customs upon merchandise and shipping did originally form part of the royal revenue in Scotland as in other European kingdoms. Thus, in an extract from the Assize of King David, relied on by Lord Medwyn (a) , it is written, “Merchandes alsua outher be land or be se cummand sall geyff the kyng be his ministeris his rechtis fullely as it was stablyet in his faderis dayis.” But there is some reason to think that petty customs generally took their origin from a royal grant to a newly created burgh in consideration of benefit to be expected by the inhabitants of the burgh. For expected benefit, a power to impose reasonable tolls existed in most of the European monarchies. Down to our own times the King of England has been accustomed to make a grant of reasonable tolls to defray the expense of erecting a lighthouse on a dangerous

Footnote

( a ) See suprà suprà , vol. i. p. 15.

Page: 712 ↓

The unlimited taxing power of the kings of Scotland is rather novel. In a passage quoted from “Chalmers's Caledonia,” that learned and paradoxical writer says:

“The commercial laws of North Britain consisted of a system of slavish and barren monopoly, which entailed on Scotland during five centuries poverty and wretchedness.”

But Lord Braxfield (a) , a much higher authority, in the Wigtown case, stated the law of Scotland to be, “That the Crown has no power to impose taxations either in favour of the Crown itself, or in favour of third parties, whether individuals or communities.” I am likewise made to hesitate by the decision of the Court of Session in the Fleshers of Edinburgh against this very town of Linlithgow, in which the legality of this very transit toll came in question, and in which Lord Durie , a great Judge, who concurred in the judgment, and had the reputation of being a very accurate reporter, says:

“The Court held that the town of Linlithgow had no right to uplift such customs, and that such customs and consuetudes ought not to be authorized, seeing all the king's lieges have liberty to drive their goods through the king's public way and streets, without any exaction of that nature, except it had been granted for a public good of the realm, such as bridges or such like common works.”

Footnote

( a ) Macqueen of Braxfield.

Page: 713 ↓

The Lauder case, which is supposed to overturn this decision, may perhaps be explained by the fact that the cart carrying the stones found liable to toll had passed through the paved streets of the town, and that the Court there said that immemorial custom might explain the grant, “with this proviso, that the custom was not contrary to law and the good policy of the kingdom.”

The Ayr case, and likewise the Wigtown case, may possibly be shown to be irreconcilable with the case of the Fleshers of Edinburgh.

But, my Lords, I hope I may have said enough to excuse myself for observing that this general question respecting the common law of Scotland should still be considered open for discussion as before the present litigation began.

I now proceed to show that if the transit toll could have been lawfully demanded when the statute of 1 & 2 Vict. c. 58. passed, in my opinion it was the intention of the Legislature that the Appellants should not be liable to any such toll for carrying goods by their railway from Edinburgh to Glasgow through the liberties of Linlithgow. For this purpose I do not think that any reliance can be placed on the 81st section of the Act referred to by the Attorney-General ; for this applies only to the rights of persons who have sold land or other property to the Company; and although the land purchased by the Company is held of the burgh by burgage tenure, I do not think the Corporation of the burgh can be considered as having conveyed it to the Company as vendors. But when we consider what the nature of this new transit by railway is, I do not think that there could be any intention that it should be liable to a toll. The railway does not traverse any street of Linlithgow repaired by the Magistrates, and it is

Page: 714 ↓

Page: 715 ↓

Under these circumstances, I am of opinion that section 177 of this Special Act clearly indicates that no transit toll shall be demandable, having enacted “That all persons shall have free liberty to pass along and upon, and to use and employ the said railway, with carriages and engines properly constructed, as by this Act directed, upon payment only of such rates and tolls as shall be demanded by the said Company, not exceeding the respective rates or tolls by this Act authorized, and subject to the provisions of this Act and to the rules and regulations which shall from time to time be made by the said Company or by the said Directors, by virtue of the powers to them respectively by this Act granted.”

Further, by the Railways Clauses Act, 8 & 9 Vict. c. 33. s. 15, it is universally enacted, “that upon payment of the tolls from time to time demandable, all companies and persons shall be entitled to use the railway with engines and carriages properly constructed.” When railways first began, the contemplation was that carriers and private persons might run carriages upon them, merely paying a toll to the Railway Company for the use of the railway. If an individual had engaged in an adventure to carry goods and passengers with great celerity from Edinburgh to Glasgow, without stopping at any intermediate station, was it the

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The English case of Rowe v. Shilson (a) was relied upon by the Respondents. But the ratio decidendi there expressly stated by Lord Denman , and the other Judges of the Court of Queen s Bench, clearly distinguishes it from the present. There “the plaintiffs had a vested right to tolls for the use of their land, and their land being used by others as before, the right to toll for the use of it was intended to continue.” Mr.

Justice Parke (my Lord Wensleydale ) pointedly says:

“This does not enable persons to cross the road of another company without paying the rates before claimable by them.”

But the decision of the Court of Queen's Bench in The Newmarket Railway Company v. Foster (b) is much more in point, and the only distinction attempted by Sir FitzRoy Kelly between that case and the present was that the toll there must be considered a payment in consideration of the use of the road; whereas, as he contends, what is called toll here is a tax imposed

Footnote

( a ) 4 Barn. & Ad. 726.

( b ) 2 C. L. Rep. 1617.

Page: 717 ↓

That the Legislature had no intention that any transit toll, if any existed before the construction of the railway, should be afterwards payable by the Railway Company, seems to me to be further clearly shown by section 237, which expressly saves to the town of Linlithgow the bridge toll claimed for passing the river Avon. If the transit toll was to continue, why was there not a similar saving to preserve it; Expressio unius est exclusio alterius . Indeed, the transit toll was much more likely to be questioned if demanded, and the omission can only be reasonably accounted for by the supposition that the demand being so unreasonable there was no apprehension that it could ever be made.

As to the Bridge Customs.

I now come to what has been called the “bridge toll” (a) ; and to dispose of this I shall only have briefly to refer again to the 237th section of the Act of Parliament. This right, in the extent to which it is claimed, seems more strange than any right that I remember to have seen judicially claimed, viz., a right to levy toll or customs upon any cattle, carriages, goods, or any other thing whatsoever, passing, led, driven, or carried over any part of the river Avon, between its mouth and a place more than twelve miles higher up. This toll would be leviable where the alveus of the river and both banks belong to the same proprietor, if in times of flood he should make his cattle swim over from one bank to another, or in

Footnote

( a ) See suprà suprà , vol. i. pp. 30, 31, 32, 33, 34.

Page: 718 ↓

But it is unnecessary to decide upon the legality of this toll; for, esto that it is legal, this action is not maintainable in respect of it. A viaduct has been made by the Railway Company across the Avon, between the specified termini; but the construction of this viaduct is expressly authorized by the Act:

“and if anything shall be done by virtue of this Act whereby such customs shall be diminished, or such tiling when done shall have the effect to diminish the same, then the Magistrates and Town Council shall and may receive such indemnification from the said Company as shall be agreed upon between them, and in case they cannot agree, as shall be settled by a jury in the manner in which satisfaction is directed to be made by this Act for lands taken and used under the powers thereof”

Then follows a proviso reserving to all persons interested “the validity and discussion in the competent Courts of law of rights, jurisdictions, and powers enjoyed or claimed, with all defences which any person or persons can or may plead against the same.”

This clause is most strangely framed, and a literal meaning cannot be given to all its contradictory language. But taking the whole together I think that the Legislature certainly did not intend that anything so impracticable should be attempted as actually to levy the tolls as the train passed the viaduct; but that preserving whatever right the Magistrates before had to the toll claimed, then, by agreement, or by the verdict of a jury, they should receive an indemnification from the Company equivalent to the amount of the tolls which they would have been entitled to levy. The tolls were not to be levied in specie, but a pecuniary commutation was to be received for them.

Page: 719 ↓

It was argued on behalf of the Respondents (I should think rather jocularly) that they are entitled to levy the amount of the tolls on every train as it passes the viaduct, and therefore they are not damnified; but the enactment seems to me clearly to indicate that the tolls should not be taken, and that having established their right, the Magistrates should receive an indemnity; for if the tolls were actually to be levied as claimed, the Magistrates could not be damnified, but must be lucrated by the erection of the viaduct.

For these reasons, my Lords, I am of opinion that the Interlocutors appealed against should be reversed, and that the Defenders should be assoilzied from the conclusions of the libel.

We all very deeply regret the delay that has taken place in finally disposing of this Appeal. I may truly say that it has chiefly arisen from an anxiety to decide properly. Without the remit, we thought that we could not safely adjudicate upon questions of such general importance. On the second argument, after we were favoured with the opinions of the Judges, delays arose from the illness and death of Lord Truro , who had prepared a judgment, I have reason to believe, in the same sense as that which I have now delivered. Unfortunately, a proposal of my noble and learned friend, Lord Brougham , which I should have warmly supported had I been able to attend, that the opinion of the English Judges should be taken on the construction of the Acts of Parliament, was objected to on the ground that this would be importing English law into Scotland.

Upon the whole I would recommend that there should be no award of costs, incurred either in this House or in the Court below.

Page: 720 ↓

Lord Brougham :

My Lords,

upon this very important and long litigated case I have anxiously considered the opinions of the learned Judges in the Court below, and I have come to the same conclusion with that of my noble and learned friend.

When this case was last before your Lordships, and when Lord Truro and myself in some respects differed, it was suggested that there was an additional reason for its being reheard, namely, that the Railway Act had not been sufficiently considered. There was at least that reason alleged for postponing the decision till a future opportunity.

My Lords,

we have now had the opinions of the learned Judges (a) ; and I must agree with my noble and learned friend in expressing my admiration of the learning and the ability which those thirteen opinions manifest; and it is a lamentable consideration that of those thirteen learned Judges only two now survive.

From the view which I take in common with my noble and learned friend, it becomes unnecessary to decide the first and general question. I will, however, state, as he has done, that considerable doubt exists upon that question. Nevertheless, I so far differ with my noble and learned friend that the inclination of my opinion is with the great majority of the learned Judges below. I think nine (for Lord Mackenzie upon that point agrees with the others) out of the thirteen are clearly of that opinion. There is no doubt that the case of the Fleshers of Edinburgh (subject to the observations which arise upon the incorrectness of that report), and the Lauder case (subject also to a doubt), followed by the Ayr case ( Oliphant v. Ayr ) and the

Footnote

( a ) See suprà suprà , vol. i. p. 15.

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Lord Cranworth's opinion .

As to the Burgh Customs.

Lord Cranworth :

My Lords,

my noble and learned friend on the woolsack has gone so fully into this case, that, perhaps, it is unnecessary for me to add a single word, concurring as I do with him in the result at which he arrives. Like him, I give no decided opinion upon the great and important point, which applies to other burghs in Scotland as well as to this, as to the legality or illegality of the claim set up (c) . At the same time, as my noble and learned friend on the woolsack has intimated a leaning, I may say, towards the opinion of the minority of the Judges upon this point,

Footnote

( a ) See suprà suprà , vol. i. p. 24.

( b ) Ib . p. 15.

( c ) See suprà suprà , vol. i. pp. 1-30.

Page: 722 ↓

Now, that the Act of Parliament meant to put an end to this toll in respect of goods transported by railway, if otherwise it would have existed, appears to me to be clear beyond doubt. In the first place,

Page: 723 ↓

Then seeing that there is no right to toll reserved, and moreover, that no machinery is given whereby it would be possible to enforce the toll, these considerations appear to me irresistibly to lead to the inference that the toll was not to continue at all. The toll could only be levied by the customer, the officer of customs coming upon the railway, the train being compelled to stop. But no provision is made for that purpose. Any man coming upon the railway would be a trespasser; he would have no right to come upon the railway, except as a passenger; and the absence of any such provision seems to me to be conclusive that it was not intended that such a toll should be levied; and I feel the more confidence in that view of the case from the circumstance that in one, at least, of the cases that are stated in the condescendence (I mean the case of Dundee), upon looking at the Local Act I find that express provision was there made with regard to that state of circumstances, because there the right of the burgh to all toll was preserved, and then in the amending Act, which is referred to, the 11 & 12 Vict. c. 52, there is a provision made that whereas they have been in the custom of levying this toll before the creation of the railway, and as the levying of it upon the railway after the Railway Act was passed, would become difficult or impossible, therefore it is provided that the Company itself shall levy the toll, and keep an account of it for the burgh—an extremely reasonable provision, the absence of which in the present Act appears to me, if further argument is wanted, to afford an irresistible

Page: 724 ↓

My Lords,

this subject has been so entirely exhausted by my noble and learned friend on the woolsack, that upon that part of the case I shall say no more.

Then we come to the bridge toll (a) . Now, as to that I see no doubt, except from the right which is reserved in the Act of Parliament to levy toll at any viaduct or bridge erected by the Company. The 237th clause reserves all rights (which is not done as to the transit toll) existing at the time of the passing of the Act. But then the Legislature, foreseeing that the establishing of a viaduct might prejudice the town by abstracting much of the traffic across the river, after saving the rights of the town, further provides a compensation in case the construction of a viaduct should diminish their tolls on the bridge, or other places of passage across the river.

The difficulty arises from the reservation of the rights claimed to levy customs on cattle, goods, and other things passing the water of Avon, by any viaduct or other bridge built across the water by the Company. It must be owned that these words are very difficult to deal with, but still I cannot believe that they were intended to reserve a right to take toll on goods, &c. passing in the ordinary way along the railway. If that had been intended, some provision would surely have been made enabling the Magistrates and Town Council claiming the toll, or their officer, to come on the railway, and obliging the Company to take care that facilities were given for enabling the persons levying the toll to ascertain and enforce their rights. Further, the provision enabling the Magistrates and

Footnote

( a ) See suprà suprà , vol. i. pp. 30, 31, 32, 33, 34.

Page: 725 ↓

For these reasons, I am of opinion, both as to the bridge toll and as to the transit toll, that if either or both of them did exist, the right to them has been put an end to by the Railway Act, so far as relates to goods carried by the railway, or on the viaduct or bridge across the Avon.

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Lord Chelmsford :

My Lords,

I agree with all my noble and learned friends who have addressed your Lordships that this case may be disposed of without the necessity of expressing any opinion on the important and general questions which have been raised in the course of the discussion, and which have received so much attention and drawn forth so much admirable learning from the learned Judges of the Court of Session. That the Kings of Scotland from the earliest period were entitled to receive, by virtue of their prerogative, certain dues under the names of magnæ et parvæ custumæ magnæ et parvæ custumæ is matter of historical certainty; and also that it was their practice to make grants of these customs to burghs, to religious houses, and to individuals. Whether within the parvæ custumæ parvæ custumæ was included a tax or toll for entering into or for passing over a royal burgh, or whether the Crown possessed and exercised the right of exacting such a toll, or could create it by royal charter in favour of a burgh or of an individual, without limit and without imposing some duty or obligation as a consideration for it, are questions which I am glad to be relieved from deciding upon the materials before me. Various instances are brought forward by the Magistrates of Linlithgow of royal charters granted in general terms and followed by the perception of tolls or customs for passing through the burgh. But whether the right to take this toll was comprehended within the terms of the grant, or whether the usage originated in the power which the burghs might possess of stopping persons at the town gates and exacting a toll, which might afterwards be extended beyond the town proper, and being acquiesced in might have become established within the entire limits of the burgh, it is probably impossible at the

Page: 727 ↓

First, the title of the burgh to town custom depends upon charters conferred by Act of Parliament, and followed by usage (a) . The words of the charters upon which reliance is placed are “ parvis custumis et tholoneis. ” Some stress was laid in the Court of Session upon the word “ tholonea ” as importing something different from “ parvæ custumæ parvæ custumæ ,” and as more directly applicable to the toll in question. But before your Lordships it has been argued that the terms are synonymous, and that nothing is given by the word “ tholonea ” which was not previously comprehended within the words “ parvæ custumaæ parvæ custumaæ .” The object of reducing the word “ tholonea ” to this state of insignificance is obvious. At your Lordships' bar it was contended that the toll was not demandable for the passage through the burgh, but was a tax imposed for coming into the town, and it seemed to be considered that the undefined term “petty customs” was more applicable to such an arbitrary imposition than the word “toll,” which usually means a payment in respect of some liberty or privilege, or for something which is to be obtained as an equivalent for the imposition. The Magistrates have, however, always treated this as a passage toll, although I do not understand that they have admitted the necessity of proving a consideration for it. In their revised condescendence they say, “By the law of Scotland the royal charters and ratification thereof by Parliament are in themselves valid and binding, and confer ample right and power on the Pursuers to levy the dues

Footnote

( a ) See suprà suprà , vol. i. pp. 1–30.

Page: 728 ↓

But their difficulty upon the charters begins a little earlier, as it is necessary for them to show that the term “ parvæ custumæ parvæ custumæ ” comprehends or may comprehend such a toll as a passage toll within its meaning. Now, we have waited in vain for some definition of the term “ parvæ custumæ parvæ custumæ ” and at the close of the argument it has remained as uncertain and indefinite as at the first. The utmost that can be said for it is, that it may comprehend such an imposition as the one in question, and that it is one of those varying and flexible terms which is susceptible of explanation from usage. The usage, of course, will not be permitted to extend the charters, nor, however long it has prevailed, will it create a right, but it must be strictly limited to the office of explanation.

What, then, is the proof of usage upon which the Magistrates rely? for the extent of the usage must be the limit of the right. Now, there is no evidence of any right enjoyed under the charter but what is contained in the custom table of the burgh promulgated in the year 1699. With respect to the particular toll in question, it is shown to be literally and

Page: 729 ↓

These considerations are useful in enabling your Lordships to decide whether the town customs can be exacted from the Railway Company. If they arise from an obligation to repair, and are a compensation for the use of the streets and ways; if they cannot be taken from persons who do not pass through the town, or over any of the ways belonging to it (which appears from the custom table to be the case), then the question upon this toll or custom seems to be capable of an easy solution in favour of the Railway Company, as they use a way of their own over their own property, and derive no benefit at all from the use of any ways belonging to the burgh. As the custom table

Page: 730 ↓

I think that this may well account for the silence of the Legislature in not expressly exempting the Railway Company from the payment of these tolls. Their description and character, and the grounds upon which they depend, are so entirely inapplicable to the new state of things arising out of the creation of a railway, that it would have been almost an idle precaution to provide against the demand by an express exemption; and even supposing that the possibility of exacting a passage toll was not so entirely out of the question as it appears to be, and that the toll therefore might have been left to attach upon the goods carried by trains running through the burgh without stopping, yet I think that even under this supposition the 237th section of the Railway Act would afford a very strong argument against its being intended to be continued; as the rights of the Magistrates are saved as to the bridge toll, but as to the bridge toll only; and therefore not only does this saving draw to it the rule Expressio unius est exclusio alterius , but it furnishes also an additional reason for thinking that the Legislature never supposed that the Railway Company could be liable to the town custom, and consequently did not consider it necessary to make any provision with respect to it. I think, therefore, that the burgh cannot claim the town custom from the Railway Company.

As to the Bridge Customs.

The bridge toll stands upon a different footing; that was given to the burgh by the Act of Parliament of 1685 expressly upon the consideration of

Page: 731 ↓

These observations may perhaps assist your Lordships in construing the 237th section of the Railway Act, on which the right to the bridge toll (a) mainly

Footnote

( a ) See supra , vol. i. pp. 30, 31, 32, 33, 34.

Page: 732 ↓

Page: 733 ↓

Page: 734 ↓

I do not pretend to say that the explanation which I have attempted has removed all the difficulties of this obscurely worded clause, nor that, if the intention of the Legislature was what I have supposed, it might not have been expressed in a clearer and more intelligible manner. One thing, however, is plain to my mind through all the obscurity, that it never was intended to leave the bridge custom to be received in kind at the Company's viaduct; but that it was meant to give to the Magistrates merely an indemnification for the diminution of their tolls likely to be occasioned or actually produced by the viaduct of the Company to be built or erected across the water of Avon.

I think, therefore, that the Magistrates have no right to take the bridge toll for goods passing over the viaduct.

Remarks on the form of the Judgment.

Sir FitzRoy Kelly : Will your Lordships permit me to suggest, that in order to give effect to your Lord ships' judgment, the decree reversing the Interlocutor must be slightly modified? Your Lordships will perceive by the record, that the declaration claimed is a declaration that the burgh are entitled to levy the dues described as burgh customs on all goods transported along or brought by the railway within the burgh, whether for sale, use, or consumption within the burgh, or carried out or through the same. No doubt, as to all that are carried through the burgh, your Lordships' judgment will effect a complete reversal of

Page: 735 ↓

The Lord Chancellor : It seems to me that it is quite unnecessary to make any declaration upon the subject. The ratio decidendi of the House will be perfectly well understood. There is no controversy with respect to the toll upon cattle and goods coming into the town or going through the town, and it is quite unnecessary to make any declaration upon that subject. It is not contested by the condescendence on the other side, and I think it is quite sufficient if your Lordships are of that opinion to say that the Interlocutor appealed against be reversed, and that the Defenders be assoilzied from the conclusions of the libel.

Sir FitzRoy Kelly : I am sure your Lordships will pardon me for suggesting that when we look at the record, we find that, whatever may now be admitted at the bar, the whole claim is completely denied in terms.

The Lord Chancellor : There is nothing in the decision of this House denying any part of your claim except upon the construction of the Act of Parliament.

Sir FitzRoy Kelly : I hope your Lordships will hear my learned friend, Mr. Anderson , upon this point of form.

The Lord Chancellor : I do not think it is at all advisable that such discussions should be gone into.

Lord Cranworth : We have decided upon the general effect of the Act of Parliament. If it can be

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The Lord Chancellor : No doubt can possibly arise from what the House has now decided. It is not desirable that we should have these discussions. There is no danger of any practical inconvenience.

Mr. Attorney-General : None whatever.

The Lord Chancellor : There is no occasion for any declaration.

Mr. Anderson : The summons seeks a declaration of our right. All that we ask is that the Defenders should not be assoilzied from that part of our claim which they do not deny. The words of your Lordships' judgment, if you assoilzie the Defenders from the conclusions of the libel, will absolve them from the payment not only of the transit toll, but also of the toll on goods brought in for sale.

Mr. Attorney-General : It is the Railway Company that are assoilzied, and not other persons.

Lord Cranworth : I quite admit that these discussions are generally very much to be deprecated, but I certainly am impressed with this, that the summons asks for something, amongst other things, to which the Pursuers are entitled, and if we absolve the Defenders generally it might at a future time have an effect that was not intended.

The Lord Chancellor : The record must be examined, and it will be seen upon the record that that was never denied or disputed or doubted. Therefore there is no occasion for a declaration.

Sir FitzRoy Kelly : It is denied upon the record, though it has been admitted to a great extent in the argument.

Lord Brougham : If we absolve the Defenders generally, it may be urged that the consequence of that

Page: 737 ↓

Mr. Attorney-General : Your Lordships' judgment absolves the Railway Company upon the ground of the Act of Parliament; they are absolved from paying any dues as a Railway Company.

Lord Brougham : The Act of Parliament is the ground of the absolvitor, but that does not appear upon the record.

Sir FitzRoy Kelly : The grounds of your Lordships' judgment will not appear upon this record or upon the decree. We would not waste your Lordships' time by attempting to controvert anything that has been urged, but I am sure that as a point of justice your Lordships will consider whether your decree will not have an effect which you do not intend it to have, and which would be against the admissions which have been made at the bar and the judgment which has been actually pronounced.

The Lord Chancellor : If it should appear upon examination that there is a denial of the right to toll upon goods brought in or carried out of the town, it will be very proper that that should be attended to, and it is never too late to do justice. But during the whole course of the argument it has been understood that that never was contested. The learned Counsel for the Appellants began by saying that he fully admitted it, and I should have thought that, under these circumstances, no declaration would be required or could be of the slightest use; but if there is a possibility of any question arising upon it, that can be guarded against.

Mr. Attorney-General : Will your Lordships allow me to put the fact beyond the possibility of doubt. If my learned friend will look at the 7th article of the revised statement of the Railway Company, in

Page: 738 ↓

Lord Chelmsford : Surely, Sir FitzRoy , that will do.

Sir FitzRoy Kelly : My Lord, that is the very reason of the application we now make to your Lordships. This condescendence states certain matters which your Lordships, assoilzieing the Defenders altogether, will utterly nullify; and as to which it will put upon record, as a judgment by this House, that the burgh is not entitled even to those dues which are thus admitted to be payable. I am content to adopt that which fell from the Lord Chancellor this moment, that the matter should in any way that is fair be considered, so that your Lordships' judgment should not have an operation which you really do not intend it should have. And the prayer of our libel being for a declarator as to goods brought for consumption into the town, as well as goods carried through the town, we consider that as your Lordships have disaffirmed the latter claim, but the latter claim only, the decree should be made conformable to the judgment which your Lordships have pronounced. My Lords, I speak with diffidence upon this subject, but my learned friend, Mr. Anderson ,

Page: 739 ↓

Lord Cranworth : The judgment, as proposed by my noble and learned friend on the woolsack, is quite right,—I thought not, at first. It is quite right that we should always consider these things very minutely, and see what may be the effect hereafter. But it appears that upon this record there is no dispute upon this point, and it is quite right that the Defendants should be absolved from the whole, because the Defenders are not the persons liable for the toll upon the goods brought into the market.

The Lord Chancellor : If, on looking at the record, and seeing what was the issue actually joined between the parties, it should be found that the absolvitor goes too far, that can be rectified.

Sir FitzRoy Kelly : I am quite content, my Lord.

Lord Brougham : Now, my Lords, with a view to various other cases which may arise quite unconnected with any Railway Act, I hope it will be quite understood in Scotland that upon the general question which applies to the cases of these burghs, the House has given no opinion whatever. My noble and learned friend on the woolsack only expressed an inclination of opinion one way, and my noble and learned friend opposite and myself expressed an inclination of opinion the other way, carefully guarding ourselves from being supposed to give any decided opinion.

Mr. Attorney-General : There are about eighteen or nineteen other cases, which are not to be prejudiced, and which will come in due time to this House.

Lord Brougham : I wish, before this case is parted with, to state, in support of what my noble and learned friend on the woolsack said, that the great

Page: 740 ↓

Judgment .

Judgment of the house.

of an Interlocutor of the Lord Ordinary in Scotland, of the 21st of December 1844; and also of an Interlocutor of the Lords of Session there, of the First Division, of the 17th of July 1845; and praying, that the same might be reversed, varied, or altered, or that the Appellants might have such relief in the premises as to this House, in their Lordships' great wisdom, should seem meet; as also upon the Answer of the Provost, Magistrates, and Town Council of Linlithgow, put in to the said Appeal: And whereas on Friday the 4th day of August 1848 it was ordered by this House, that the said cause be remitted back to the First Division of the Court of Session in Scotland, with directions that the same be heard in presence before the whole Judges of the Court of Session, including the Lords Ordinary, with liberty to the Court, either before or after the said hearing, to open up the record, and to allow the parties respectively to amend the summons and defences, if they should think fit, both parties having consented by their Counsel at the bar that such liberty should be included in the remit (this House not thinking fit to pronounce any judgment upon the said Appeal until the whole of the said Judges should have given their opinions in the Cause; and this House reserved all questions of costs in respect of this Appeal): And whereas the opinions of the Judges of the Court of Session upon the matter so referred to them have been delivered to this House pursuant to the said Order of Remit: And whereas by an Order of this House of the 4th day of March 1851 it was ordered that the said cause be heard by Counsel at the bar on the remit on the following Monday: And whereas Counsel were accordingly heard on the remit, as well on Monday the 10th as Tuesday the 11th, Monday the 17th, Tuesday the 18th, and Monday the 24th days of March 1851, when the further consideration of the Cause was put off sine die : And whereas, by an Order of this House of the 24th day of June 1853, it was ordered, that one Counsel of a side be heard in the said cause on Monday the 4th of July 1853, upon the construction of the Edinburgh and Glasgow Railway Act with reference to the customs or tolls claimed by the Respondents; and that the Learned Judges do then attend; which said Order was discharged on the 30th of June following: And whereas, by a further Order of this House of the 31st day of May 1858, it was, in pursuance of an Application from the Respondents in the said Cause, ordered that the Cause be fully re-argued by Counsel at the bar, and that both parties be allowed to print and lodge a supplemental case, if advised that the same is necessary: And whereas, in pursuance of the last-mentioned Order, it was ordered, that the cause be re-heard by Counsel at the bar on Wednesday the 20th day of this instant July: And whereas on Wednesday the said 20th day of this instant July Counsel were accordingly called in; and Counsel on both sides having consented that the Cause should be argued and disposed of on the footing that the Interlocutors appealed against were pronounced upon the Record, as amended, Counsel were heard, as well on the said Wednesday the 20th day of this instant July, as Thursday, Friday, Monday, and Tuesday last; and due consideration being had this day of what had been offered on either side in this Cause:

Whereas Counsel were heard, as well on Thursday the 25th, Monday the 29th, and Tuesday the 30th days of March, as Monday the 19th day of April 1847, upon the Petition and Appeal of the Edinburgh and Glasgow Railway Company; complaining

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It is Ordered and Adjudged , by the Lords Spiritual and Temporal, in Parliament assembled, That the said Interlocutors, complained of in the said Appeal, be, and the same are hereby reversed; and that the Appellants (Defenders) be assoilzied from the conclusions of the libel, without costs to either party in the Court of Session: And it is also further Ordered , that the said cause be remitted back to the Court of Session in Scotland, to do therein as shall be just, and consistent with this Judgment.

Note .

The preceding Judgment, though really pronounced by the House on the 28th of July 1859, was not drawn up till August 1860. The delay was caused by the disputes of parties as to the real meaning and intention of the House.