Stirling and Dunfermline Rly Company v Edinburgh and Glasgow Rly Company
| Jurisdiction | Scotland |
| Judgment Date | 04 March 1857 |
| Docket Number | No. 135 |
| Year | 1857 |
| Date | 04 March 1857 |
| Court | Court of Session |
Lord Neaves. R.
I. Railway—Lease—Expenditure in excess of statutory powers.—
II. Process—Summons—Interest.—
SEE ante, vol. xiv. p. 747; vol. xv., H. of L. Cases, p. 48; vol. xviii. p. 1230.
I. This case was a branch of the same litigation reported previously between the same parties.
By the decision of March 1852, as affirmed in the House of Lords, it was fixed that the Edinburgh and Glasgow Company were bound to enter into possession of and work, under their Leasing Act, the different portions of the main and branch lines of the Stirling and Dunfermline Company, as they were completed to the satisfaction of Mr Miller, an engineer of the Edinburgh and Glasgow Company, and to pay as rent a per centage on the cost, as fixed by Mr Miller.
In the case decided in July 1856, objections were stated to the cost, as fixed by Mr Miller, of certain portions of the line which had been completed to his satisfaction, on the ground that he had included, as costs, items not properly falling under that denomination; and it was fixed that Mr Miller, being a statutory referee, and not merely a party reporting to the Court, his report could not be examined on the grounds stated. He had in that report fixed expenditure amounting to L.371,818, 17s. 2 1/4 d. Farther portions of the line having been completed, he reported, on 17th May 1856, that he had fixed the expenditure on them at L.106,692, 19s. 5d., and L.75,698, 7s. 9d. respectively. The defenders stated the same objections to this report as to the former one, as well as the following additional ones:—
‘5. The defenders further object to the report of Mr Miller, upon the ground that they are not liable in payment of the annual fixed rent of four per cent, upon a larger amount of expenditure by the pursuers than the sum of L.390,000, being the amount of the capital authorised by the said Act to be raised for the formation of the said main line of railway and relative branches. The whole expenditure reported on by Mr Miller, by the present and prior reports, amounts to L.554,210, 4s. 4 1/4 d., and exceeds the said sum of L.390,000, by the sum of L.164,210, 4s. 4 1/4 d. The defenders submit, that on the amount of expenditure now reported on, to the extent of the said sum of L.164,210, 4s. 4 1/4 d., they are not liable in payment of rent.
‘5. In any view, the defenders object to the report, upon the ground that they are not liable in payment of an annual fixed rent of four per cent upon a larger amount of expenditure by the pursuers than the authorised capital of the Company, and the money borrowed by the pursuers, under the authority of the said Act of Parliament, and expended by them in obtaining their Acts of Parliament, and in completing their said railway and relative branches. The borrowing power was limited by the said Act to L.130,000, and supposing the whole of this sum to have been borrowed and applied by the pursuers for the purposes aforesaid, the whole amount of expenditure reported on would exceed the authorised capital and borrowed money by the sum of L.34,210, 4s. 4 1/4 d. On this sum, under any circumstances, the defenders are not liable in payment of rent, but a considerable portion of the money borrowed by the pursuers, under the said Act, was not expended for the above purposes, and is, therefore, not expenditure on which rent is payable by the defenders.’
The Lord Ordinary pronounced the following interlocutor:—‘Finds that the report or certificate of Mr John Miller, engineer, being the person named in the statute for the purpose of determining the amount which shall have been expended in obtaining the said Act, and completing the works therein mentioned, cannot be objected to or inquired into on the grounds of the objections stated in this process: Therefore repels the objections, and finds and declares that the sums of L.106,692,19s. 5d., and L.75,698, 7s. 9d. sterling, being the amounts ascertained and fixed by the said John Miller to have been expended by the pursuers in completing the branch railways, and portion of the main line of railway libelled respectively, conform to report No. 21 of process, are the amounts on which the defenders are bound to pay to the pursuers the annual fixed rent or consideration of four per cent libelled, in respect of the said branch railways and portion of main line of railway; reserving to the pursuers to have the amount expended in the construction of the remaining parts of the Stirling and Dunfermline Railway libelled, as authorised to be constructed by the several Acts of Parliament libelled, ascertained and fixed by the said John Miller; whom failing, by the engineer of the Edinburgh and Glasgow Railway Company, for the time being, and decerns: Finds that the said annual fixed rent or consideration corresponding to the said sum of L.106,692,19s. 5d., amounts to the sum of L.4267, 14s. 4 ½ d. sterling, and that the said annual fixed rent or consideration corresponding to the said sum of L.75,698, 7s. 9d., amounts to the sum of L.3027, 18s. 8 ½ d. sterling, making together the sum of L.7295, 13s. 1d. sterling per annum, which ought to be payable by equal moieties on the 4th of June and the 4th of December in each year: Finds that the said branch railways libelled having been duly completed on 21st June 1852, and become then leased to the defenders under the said Acts of Parliament, and that the portion of the said main line of railway libelled having been duly completed on 29th October 1852, and become then leased to the defenders under the said Acts, the proportion of the said fixed rent or consideration applicable to the said branch railways, due as on the 4th day of December 1852, calculated as from the said 21st day of June 1852 (when the said branch railways were leased to the defenders) until that date, amounted to the sum of L.1952, 12s. 6 ½ d. sterling, and the proportion of the said fixed rent or consideration applicable to the said portion of main line of railway, due as on the said 4th day of December 1852, calculated as from the said 29th day of October 1852 (when the said portion of main line of railway was leased to the defenders) until that date, amounts to the sum of L.306, 18s. 9 ½ d. sterling: Therefore decerns and ordains the defenders to make payment to the pursuers of the said sums of L.1952, 12s. 6 ½ d., and L.306, 18s. 9 ½ d.; and further, decerns and ordains the defenders to make payment to the pursuers of the...
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