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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bathgate Heritor v. Russell [1908] ScotLR 714 (12 December 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/46SLR0714.html
Cite as: [1908] SLR 714, [1908] ScotLR 714
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SCOTTISH_SLR_Court_of_Session
Page: 714↓
Court of Session Inner House Outer House.
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v.
Facts:
A note of suspension and interdict was presented by the heritors of a parish, and A B, “clerk to and as representing said heritors.” Held ( per Lord Mackenzie), on an objection to the complainers' title to sue, that the instance was good.
The Heritors of the Parish of Bathgate, and John Wright, clerk to and as representing them, presented a note of suspension and interdict against William Russell and the Bathgate Corn Exchange Company, of which he was the only known partner. The complainers sought to prevent certain proposed encroachments on the churchyard of which they were proprietors, consequent on a scheme for alteration and improvement of the respondent's property which abutted thereon.
The case having come into the Court of Session on a passed note from the Bill Chamber, the respondents maintained their first plea, viz., no title to sue.
At the discussion in the Procedure Roll the following authorities were referred to:— Kirk Session of North Berwick v. Sime, November 14, 1839, 2 D. 23; Magistrates of Edinburgh, July 18, 1881, 8 R. 982, 18 S.L.R. 706; Mackay's Manual, p. 156; Lyall v. Commissioners of Supply for Lanark, July 5, 1859, 21 D. 1136; Boswell v. Duke of Portland, December 9, 1834, 13 S. 148; Heritors of Kinghorn v. Magistrates of Kinghorn, March 12, 1897, 24 R. 704, 34 S.L.R. 518; Corporation of Glasgow v. M'Ewen, November 23, 1899, 2 F. (H.L.) 25, 37 S.L.R. 620; Smith v. Heritors of Prestonpans, January 27, 1903, 5 F. 333, 40 S.L.R. 303; Duncan's Parochial Ecclesiastical Law (Johnston's ed.), pp. 518 and 534.
Heritors in regard to such a matter as the present are to be regarded as a quasi corporation. The plea to title will therefore be repelled.
On the merits of the case there must be a proof.”
The Lord Ordinary repelled the first plea-in-law for the respondents, and before answer allowed a proof.
The case was subsequently settled.
Counsel for the Complainers— Sandeman. Agents— Skene, Edwards, & Garson, W.S.
Counsel for the Respondents— Macphail. Agents— Hamilton, Kinnear, & Beatson, W.S.