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Scottish Court of Session Decisions >>
Robert Hamilton v Inhabitants of Kirkcaldy. [1750] Mor 13159 (24 July 1750)
URL: http://www.bailii.org/scot/cases/ScotCS/1750/Mor3113159-005.html
Inhabitants of a royal burgh are not exempted from working on the highways.
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A complaint having been insisted in before the Justices of Peace of the shire of Fife, at the instance of Robert Hamilton their overseer of the highways, against certain of the Inhabitants of Kirkcaldy, for not repairing the same; the Justices fined them; of which they offered suspension, and the Lord Ordinary, on advice, 21st July, “Passed the bill as to those sailors who went upon foreign voyages, or voyages coast-ways; but not as to fishers, or those who were boatmen or sailors in the passage-boats; and refused the bill as to the rest of the suspenders.
Pleaded in a reclaiming bill, By act 16th Sess. 1. Parl. 2. Car. II. the persons bound to work at the roads, are tenants, cottars, and their servants, who are to bring their horses, carts, instruments, &c. but not inhabitants of royal burghs; and by the act 5to Geo. I. whereby the laws of Scotland for that purpose are confirmed, it is the tenants, cottars, or labouring men, that are in the country; for it is only upon the landed interest that the assessment by that act is allowed to be laid, in case the labour of the inhabitants shall not be sufficient; neither are the Magistrates of burghs empowered to meet with the Justices, nor have any concern in directing the mending of roads.
Many of the petitioners are in no sense labouring men; they are merchants, vintners, &c. and the rest tradesmen, but not used to work with the spade and shovel.
When the cause came in first, the Justices declared they were not to litigate the point, but to submit to the judgment of the Court, having done what they thought right.
Observed, That inhabitants of royal burghs were not excepted; and the only question was, Whether the petitioners were of characters that would exempt them, if they lived in the country; and that a country; man would not be exempted, though he sold trifles, and called himself merchant?
Observed also, The suspension was of a decree of a petty session, without appealing to the quarter-sessions, for which the bill ought to be refused; and it was proposed to refuse, reserving to the petitioners to apply to the quarter-sessions; but on the question,
The Lords simply refused.
Pet. Lockhart.
Fol. Dic. v. 4. p. 200. D. Falconer, v. 2. No 153. p. 177.
