Scottish Court of Session Decisions

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.