JAMES MITCHELL v JOHN MORRISON & Ors (Court of Session)

In April 1821, Mitchell became tacksman of the toll-duties leviable at the Kerse toll-bar in the county of Stirling, for the yearending at Whitsunday 1822, at the rent of L.351. The tolls were let by public roup. The lease entered into between Mitchell and the Road Trustees described the subjects let as ‘the whole tolls, and duties and penalties for evading the same, to be levied at Kerse bar under the said acts, as specified in the articles of roup and printed tables signed by the treasurer.’

On 31st May 1825, the present advocation of the original application was brought ob contingentiam of the second. On 7th March 1828 the Lord Ordinary, after having ordered cases, advocated the cause, and sustained the title of the pursuer. His Lordship added the following note:

Note .—‘The Lord Ordinary has advised this cause, and thinks that it is attended with difficulty. He sees, that at one time he entertained an opinion different from what is expressed in the interlocutor, against which a reclaiming note was offered; and how he came to alter that opinion he does not recollect, as the judgment was pronounced after hearing parties at the bar, and he has preserved no note of the reasons of it.

On the whole, the Lord Ordinary returns to the opinion he entertained, and which is expressed in page 32. of this case, when he advised the other branch of this claim on papers.’

Morrison and others pleaded , that the advocator, as lessee of the toll-bar, has no title to prosecute for penalties, either at common law or under the statutes founded on.