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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anstruther v. Pollok, Gilmour & Co., and the Trustees of Port-Glasgow Harbour [1867] ScotLR 5_78 (4 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0078.html Cite as: [1867] ScotLR 5_78, [1867] SLR 5_78 |
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Page: 78↓
A party was called as defender in a supplementary action. He lodged no defences. The original and supplementary actions were conjoined. A record was made up and proof ordered. The party then proposed to lodge defences. The Lord Ordinary refused the motion. On reclaiming note, the Court remitted to receive the defences, and found the party liable in the expenses incurred by the pursuer in consequence of defences not being timeously lodged.
The pursuer is proprietor of subjects in Port-Glasgow, situated on the shore. Under his titles he claims right to form a harbour or basin on the shore opposite his property. The defenders, Pollok, Gilmour, & Co., having obtained a disposition to shore-ground, including the ground over which the pursuer claims a right to form a harbour or basin, recently erected a wall enclosing the shore-ground. The pursuer thereupon, in May 1866, brought an action against Pollok, Gilmour, & Co.—(1) to have it declared that he had the right of making a harbour or basin as above; and (2) to have Pollok, Gilmour, & Co. ordained to remove so much of the wall as is built ex adverso of the pursuer's property. Pollok, Gilmour, & Co. having pleaded inter alia that the Port-Glasgow Harbour Trustees ought to have been called as parties, these trustees were called in a supplementary action. The trustees not having lodged defences, the original action and the supplementary action were conjoined on 4th December 1866. Thereafter, a record was made up between the pursuer and Pollok, Gilmour, & Co., and a proof was ordered to be taken before the Lord Ordinary on the 19th (subsequently postponed till the 26th) November 1867. On the 20th, the Port-Glasgow Harbour Trustees craved the Lord Ordinary for leave to lodge defences, adopting the statements and pleas for Pollok, Gilmour, & Co. The motion was refused.
Page: 79↓
Thereupon the Port-Glasgow Harbour Trustees presented two reclaiming notes, viz.—(1) a reclaiming note against the interlocutor refusing to allow them to lodge defences; and (2) a reponing note against the original interlocutor of conjunction.
Clark and Lee for reclaimers.
Gifford and Black in reply,
The Court (1) remitted to the Lord Ordinary to receive the defences tendered, and to find the Port-Glasgow Harbour Trustees liable to the pursuer in payment of the whole expenses incurved or to be incurred by the pursuer in so far as incurred in consequence of the trustees not having appeared timeously; and (2) refused the reponing note against the interlocutor of conjunction.
Solicitors: Agent for Pursuer— W. H. Muir, S.S.C.
Agents for Defenders and Reclaimers— Hamilton & Kinnear, W.S.
