Scottish Court of Session Decisions

The Caledonian Railway Company brought a note of suspension and interdict against the Corporation of Glasgow, concluding for interdict against the Corporation laying pipes in Eglinton Street, Glasgow, over the company's line. By a supplementary note they averred that certain pipes had already been laid down, and asked for an order for their removal.

On 27th February 1900 The Lord Ordinary ( Low) pronounced the following interlocutor:— “Sustains head ( d) of the complainers' plea-in-law: Interdicts, prohibits, and discharges the respondents in terms of the prayer of the note of suspension and interdict, and decerns: Further, In regard to the supplementary note for the complainers, in respect that the operations of the respondents complained of have been completed, ordains them to remove the water-pipes and troughs placed by them in or through the structure of the bridge carrying the street or road known as Eglinton Street, Glasgow, over the complainers' line of railway known as the Pollok and Govan Railway, and to restore completely the structure of the said bridge to the condition in which it was before the respondents placed their said pipes and troughs therein, all at their own expense and at the sight and under the direction of Mr Donald Mathieson, civil engineer, Glasgow: Reserves all questions of expenses and continues the cause.”

The Corporation of Glasgow reclaimed.

On the case being called in the Single Bills, the respondent objected to the competency of the reclaiming-note, and argued—This was an interlocutory judgment, and could not be reclaimed against without the leave of the lord ordinary, which had not been asked for—Court of Session Act 1868, sec. 54. It was settled that the words “whole cause,” as used in section 54 of the Court Of Session Act 1868, included expenses, and that an interlocutor was not final runless expenses were disposed of— Baird v. Barton, June 22, 1882, 9 R. 970; Gowans' Trustees v. Gowans, December 14, 1889, 27 S.L.R. 210; Burns v. Waddell & Sons, January 14, 1897, 24 R. 325.

Argued for the reclaimers—This was an exceptional case, where a decree ad factum præstandum was granted. In such cases the interlocutor granting the decree disposed of the whole matter of the cause, though the case might be continued to secure that the decree was carried out— Kirkwood v. Park, July 14, 1874, 1 R. 1190. In such an interlocutor it was impossible to deal with the whole expenses of the cause, because some expense would be incurred in carrying out the decree, and therefore the fact that in Kirkwood expenses “to this date” were found due did not distinguish it in principle from the present case. There was no direct statutory provision that expenses must be disposed of before an interlocutor could be reclaimed against; it was merely an inference from the provision in section 53 that an interlocutor might be final although expenses had not been taxed.