Stirling Maxwell's Trustees v Kirkintilloch Police Commissioners
| Jurisdiction | Scotland |
| Judgment Date | 16 October 1883 |
| Date | 16 October 1883 |
| Docket Number | No. 1. |
| Court | Court of Session |
Lord Fraser. B., Lord President, Lord Deas, Lord Mure, Lord Shand.
Process—Reclaiming Note—Competency—Expenses.—
Where an interlocutor has been pronounced by a Lord Ordinary disposing of the whole merits of a cause and finding one of the parties liable in expenses, a subsequent interlocutor, which merely approves of the Auditor's report (to which no objections have been lodged), and decerns for the taxed amount of expenses, cannot be reclaimed against.
In an action of declarator and interdict by the trustees and executors of Sir William Stirling Maxwell and others against the Police Commissioners of the burgh of Kirkintilloch, the defenders, by minute, dated 20th July 1882, admitted that the river Kelvin (the alleged pollution of which was the subject of the action), was being seriously polluted by the discharge into it of the Kirkintilloch sewage; and they stated that they were willing to execute a system of drainage works, and craved the Lord Ordinary to remit to Messrs Kyle, Dennison, & Frew, C.E., to examine and report, which he did of the same date. The minute stated further that the defenders ‘agreed to pay the expenses of process incurred, and to be incurred, by the pursuers, and that they forthwith consented to the account of expenses incurred to the present time being remitted to the Auditor for taxation.’
On 23d May 1883 the Lord Ordinary pronounced this interlocutor:—‘In respect the defenders have proposed no definite scheme for abating the nuisance complained of, 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: Farther supersedes extract of this decree till the 17th day of July next: Finds the pursuers entitled to expenses: Allows an account thereof to be given in; and remits the same to the Auditor for taxation and report.’
Thereafter, on 19th July, the Lord Ordinary pronounced this interlocutor:—‘Approves of the Auditor's report on the pursuers' account of expenses, No. 14 of process, and decerns against the defenders for the sum of £74, 5s. 6d., the taxed amount thereof: Quoad ultra reserves for farther consideration the account incurred to Kyle, Dennison, & Frew, under the remit to them in the interlocutor of 20th July last.’
The defenders, who had in the Outer-House lodged no objections to the Auditor's...
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