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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stirling Maxwell's Trustees and Others v. Police Commissioners of Kirkintilloch [1883] ScotLR 21_1 (16 October 1883)
URL: http://www.bailii.org/scot/cases/ScotCS/1883/21SLR0001.html
Cite as: [1883] ScotLR 21_1, [1883] SLR 21_1

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SCOTTISH_SLR_Court_of_Session

Page: 1

Court of Session Inner House First Division.

Tuesday, October 16. 1883.

[ Lord Fraser, Ordinary.

21 SLR 1

Stirling Maxwell's Trustees and Others

v.

Police Commissioners of Kirkintilloch.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency.
Facts:

A reclaiming-note against an interlocutor which merely approves of the Auditor's report, and decerns for the taxed amount of expenses which have been previously found due, is incompetent.

Headnote:

In an action of declarator and interdict at the instance of Thomas Cartwright and others (Sir William Stirling Maxwell's trustees and executors) against the Commissioners of Police of the Burgh of Kirkintilloch, the defenders, by minute dated 20th July 1882, admitted that “the waters of the river Kelvin and its tributaries the Luggie Water and the Bathlin Burn, condescended on, had been, and were now, seriously polluted by discharges of sewage into them from the drains of the burgh of Kirkintilloch;” they further declared that they were willing to execute a system of drainage works to prevent the pollution of the said streams, and they craved the Lord Ordinary to remit to men of skill to report as to the best method of preventing further pollution, the end which they had in view. The minute further stated that the defenders agreed to pay the expenses of process incurred up to the date of the minute, and to be incurred by the pursuers, and consented to an account thereof being remitted to the Auditor for taxation.

On the 23d May 1883 the Lord Ordinary ( Fraser), in respect the defenders had proposed no definite scheme for abating the nuisance complained of, pronounced this interlocutor—“Finds and declares conform to the first alternative conclusion of the summons, and interdicts, prohibits, and discharges in terms of the conclusion for interdict, and decerns: Further, supersedes extract of this decree till the 17th day of July next: Finds the pursuer entitled to expenses: Allows an account thereof to be given in, and remits the same to the Auditor for taxation and report.”

No objections were lodged to the Auditor's report, and on 19th July 1883 the Lord Ordinary approved of the report, and decerned against the defenders for the sum of £74, 5s. 6d., the taxed amount thereof.

On the 16th August following the defender boxed a reclaiming-note, and on the first sederunt-day moved that the case be sent to the roll.

The pursuers objected to the competency of bringing the various interlocutors in the cause under review in a reclaiming-note against the approval of the Auditor's report, especially when no objection had been taken to the report when its approval was moved.

Authorities referred to— Tennents v. Romanes, June 22, 1881, 8 R. 824; Fleming v. North of Scotland Ranking Co., Oct. 20, 1881, 9 R. 11; Thompson v. King, Jan. 19, 1883, 10 R. 449; 13 and 14 Vict. c. 36 (Court of Session Act 1850), sec. 11; Baird v. Barton, June 22, 1882, 9 R. 970.

Judgment:

At advising—

Lord President—The interlocutor pronounced by the Lord Ordinary upon the 23d of May last may fairly be said to have disposed of the conclusions

Page: 2

of the summons as well as of the whole merits of the cause, and it finds the pursuer entitled to expenses, allows an account thereof to be given in, and remits the same to the Auditor to tax and report, all in common form. In the interlocutor now reclaimed against the Lord Ordinary has done nothing but approve of the Auditor's report on the pursuer's account of expenses, and decern against the defender for the taxed amount; and the question comes to be, whether that is an interlocutor which is subject to review? If the defender had lodged objections to the Auditor's report, and taken a judgment on these objections, the case would have been a very different one; but no such course has been followed nor is it suggested that any such objections could be made good.

In these circumstances I find it impossible to distinguish the present case from those of Tennent and Thompson, to which we were referred. Although, no doubt, the interlocutors in these cases were pronounced in appeals in Sheriff Court causes, yet the principle there involved applies equally to the present case.

Lords Deas, Mure, and Shand concurred.

The Court refused the reclaiming-note as incompetent.

Counsel:

Counsel for Pursuer— Dundas. Agents— Dundas & Wilson, C.S.

Counsel for Defender— M'Kechnie. Agents— Cairns, M'Intosh, & Morton, W.S.

1883


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URL: http://www.bailii.org/scot/cases/ScotCS/1883/21SLR0001.html