CHARLES, EARL OF TRAQUAIR, & Ors, v Mrs WILLIAMSON and CHARLES B SCOTT, W S (Williamson's Executors) (Court of Session)

The pursuers, proprietors in the lower district of Peeblesshire, and acting trustees upon the county roads, formed, in 1825, the project of making a road up Leithen water to the confines of Mid-Lothian, and of erecting a bridge over the Tweed, near the village of Innerleithen, in connection with the intended road. It was considered that this road might be advantageous to the district generally, and be more immediately beneficial to the properties of the pursuers.

In 1824, the late Dr Charles Williamson succeeded to the property of Cardrona, as heir of entail; but continued to live in England after his succession. The pursuers, in October 1825, obtained from the county trustees authority to erect toll-bars, and procured an obligation from the general trustees to assign to them the proceeds of the tolls, to indemnify them for the advances of money in making the road.

The pursuers had, in the meantime, commenced operations, and the whole work was completed without any further communication or notice to Mr Williamson. The only document Mr Williamson subscribed in regard to the road, was a bond, along with the other heritors, for L. 1025. He died on 6th May 1827, without having signed or expressly undertaken any other obligation relative to it.

Note .—‘This case is certainly doubtful. The first impression is perhaps against the defenders. But, on full consideration, the Lord Ordinary has come to the conviction that the law and justice of the case require a judgment in their favour.

No written obligation to that effect by the deceased was ever delivered to the pursuers, or could be produced by them. His letter to his own agent, whether it was shewn to Mr Allan or not, (and of that disputed fact no evidence has been offered,) and whatever may be its legal import, certainly was not delivered to the pursuers or to Mr Allan. And the bond founded on, whatever may be its effect otherwise, does not either express or imply an obligation to the pursuers , to be equally answerable with them for whatever other debts might be contracted in making the road.