||The custom to levy tolls has not been, as Blackstone expresses it, "peaceable and acquiesced in." In
1729, the town had a trial with Sir Henry Liddell about paying of tolls, wherein a verdict was given in
favour of Sir Henry. "It was then customary," says Brand, "for the judges to go to Tynemouth; and in
their return, Mr. Justice Page, who tried the cause, had some hot words with Mr. Reay relating to the trial,
and thereupon the judge threatened to commit the mayor; and the mayor told the judge he would commit
him, being then upon the water, and in his jurisdiction. This squabble was the occasion of discontinuing the
custom of going to Tynemouth."—Vol. ii. page 517.
The corporation had a number of grants of murage, and of pontage, for limited periods, and for things
coming to be sold in the said town; but there exists no grant or charter authorising them to levy a toll
thorough. The toll levied in the reign of Henry I. was paid by burgesses as well as strangers. Brand mentions, on the authority of the common council books, that, "in Oct. 10, 1757, the Great Toll of Newcastle
upon Tyne was let by the corporation of the town to Mr. James Hauxley, for the following year, at £525."
And in a note he states, on the same authority, that it appears to have been let, in 1654, for £230, 10s.;
and in the year 1657, for 21 years, at £200 per annum. In the year 1701, it was let at £555; and he goes
on to state, that it was let at various times, between that time and 1754, at different sums; but he gives no
information, either as to the nature of the toll, or any thing else concerning it.
In the case of the corporation against Lambton, the plaintiffs' evidence was documentary and parol. The
first document was the charter granted to the corporation in the 42d of Elizabeth. The next documents
produced were acts of parliament, of the last reign, respecting the bridge, each of which contains a clause
that "nothing therein contained shall extend to prejudice the right of the corporation to tolls." The next
were the chamberlain's books, containing various entries respecting tolls from the year 1646, and one dated
1561. A lease by way of mortgage from the corporation to Thomas Bonner, dated September 29, 1657, was
put in; by which, in consideration of £2000 paid by Bonner into the town's chest, the tolls were demised to
him for 60 years, with a proviso of redemption. An agreement was also produced, dated 1st March, 1760,
between the corporation and Theodosia Crawley and partners, whereby the former accepted, as a compensation for all toll dues and duties, £6, 13s. 4d. from the latter. In the parol evidence, it was proved by the
town's clerk, that the tolls in question are called "the Great Toll," that the corporation repair the streets,
and that two-thirds of the bridge belong to them. Thomas Gee, the town's surveyor, stated, that the repairs
of the streets cost the corporation £3900 per annum, upon an average of 8 years. A great number of witnesses proved that they had uniformly paid toll on goods brought in and carried out of the town; but George
Robinson, the toll-keeper, admitted that many refused to pay, and that the toll was not uniform.
On this evidence, it was observed that even Judge Bayley admitted that the charter of 42d of Elizabeth
"was silent as to the toll in question." The books, containing the imperfect entries previous to 1600, only
proved that some sort of toll was collected, called the Great Toll. From the books of a subsequent period,
it was inferred that the corporation had originally usurped the power of laying on a small toll, and afterwards
increased it from time to time. The large sum paid by the corporation for paving, it was contended, could
not justify the collection of such tolls, because paving did not become general in England until the 17th
century, and because no grant of pavage was ever made to the town of Newcastle. It was further argued,
that 32 millers in Gateshead paid only a compensation for toll of 5s. a year, though even the toll out, if demanded of one individual, would exceed £4, 4s. per annum, which was a proof of inability to enforce payment.
The same remark was applied to Crawley and Co.'s agreement for tolls, including duties on their goods exported and imported, which, at the time of the bargain, would not have paid the usual demand one week.
Lastly, it was conceived that the variation in the amount of the toll demanded, and acquiescence in refusals
to pay any, were fatal to the legality of the custom. On these grounds it was that the action of the corporation against Mr. Smith was defended.
On this trial, Mr. Scarlett admitted there were no grants of tolls in perpetuity, but contended that the
corporation was entitled to tolls by custom beyond legal memory. Variations in the tolls, and occasional
neglect to enforce them, he considered as proofs of the consciousness of possessing a complete right.
Judge Bayley, in summing up, said, "There are two questions. 1. Is any toll payable? 2. If any is
payable, is it such a toll as the plaintiffs claim? There is a consideration to be presumed before any person
can claim a toll of this nature; and here the plaintiffs repair the streets and bridge. First, is any toll payable? All these tolls originate by a grant from the crown, either before the time of legal memory, or since.
If since, it must be made upon a sufficient consideration. I do not agree with Mr. Brougham, that it is
ncessary that you should presume that there was a grant before the time of legal memory, in which the same
specific tolls are directed to be taken in moneys numbered. It is sufficient that you should presume a grant
that the corporation should take a reasonable toll; for such a toll might fluctuate as the value of money
fluctuates. Upon the subject of reasonableness, if you find the payments have been submitted to for many
years, as in this case nearly 60 years, it is one ground of inference that the toll is not unreasonable. I have
no means of distinguishing the tolls now claimed by the corporation, from the Great Toll for passing through
the town. The mortgage of the tolls in 1657 proved that the town had a Great Toll. Thirty-four witnesses
speak to payments of the same amount. This evidence is of great weight. Why should the parties pay?
The defendants argue, that as there are certain charters which give specific tolls in respect of the bridge,
there could not be any existing right to toll as claimed by the plaintiffs. These charters are all for murage
alone, for pontage alone, or for murage and pontage. They are all temporary; and they are all on articles
brought into the town for sale: but the toll claimed by the plaintiffs is upon goods carried through the town,
or into the town, and were not limited to articles for sale. The grants in aid of the repair of the bridge and
the walls are silent respecting other tolls; but is not this outweighed by the affirmative evidence of the
actual payment of the toll. Evidence is produced to shew a great variation in the amount of the toll; and
such evidence is generally used to create the inference that there can never have been any grant of toll: but
if the original grant was for a reasonable toll, the argument fails. Most of the witnesses of the defendant
agree in stating that they have submitted to some tolls; and this shews that there was a general opinion that
some toll was due. Is any toll payable? and is it this toll in question? If this toll is payable, your verdict
will be for the plaintiffs £1, 15s. 3d."—Verdict accordingly. The town-clerk and other officers of the corporation were disfranchised, to qualify them to give evidence. The toll was estimated at £800 per annum.