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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Montgomerie-Fleming's Trustees v. Kennedy [1912] ScotLR 4 (18 October 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0004.html Cite as: [1912] ScotLR 4, [1912] SLR 4 |
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Page: 4↓
( Single Bills.)
( Ante, July 13, 1912, vol. xlix, p. 925.)
In an action for the enforcement of certain restrictions in the defender's title, in which the pursuers were substantially successful, the defender objected to the Auditor's report on the pursuers' account of expenses, in so far as he (the Auditor) had allowed an item of £9 odd, being the cost of certain photographs which the pursuers had obtained at their own hand, for the purpose of illustrating the subjects in dispute.
The Court repelled the objection.
Observed ( per the Lord President) that it would be pessimi exempli to allow an objection involving a sum of only £9 odd upon a matter about which the Auditor was perfectly able to make up his mind.
[The case is reported ante ut supra.]
The Act of Sederunt, 15th July 1876, Table of Fees, chapter v (Jury Trials and Proofs), sec. 2, enacts—“Plans.—No allowance shall be made for plans lodged in process, or prepared for use of counsel, except such as are either ordered, or subsequently sanctioned, by the Court, prepared by mutual arrangement of parties, or proved and put in at the trial or proof.”
Hugh Tennant, Holland House, West Kilbride, and others, testamentary trustees of the late J. B. Montgomerie-Fleming, of Kelvinside, Glasgow, pursuers, brought an action of declarator and interdict against Alexander Kennedy, cabinetmaker and upholsterer, Byres Road, Glasgow, defender, in order to enforce certain restrictions in the title of his (the defender's) house.
On 13th July the First Division recalled the interlocutor of the Lord Ordinary ( Skerrington), who had dismissed the action, and found that the defender as proprietor of the subjects in question was not entitled to occupy them otherwise than as a self-contained lodging, and granted interdict against their being converted into a cabinetmaking or upholstery business.
The Auditor having lodged his report on the pursuers' account of expenses, the defender objected thereto in so far as he (the Auditor) had allowed an item of £9 odd, being the cost of certain photographs which the pursuers had obtained for the purpose of showing the alterations which the defender proposed to make.
Argued for defender—The cost of the photographs in question was an unnecessary expense, as the case had never gone to proof .Moreover, they had been obtained
Page: 5↓
on the pursuers' instructions alone, and their preparation had neither been sanctioned by the Court nor agreed to between the parties. The item, therefore, must be disallowed—A.S., 15th July 1876, Table of Fees, chap. v., sec. 2; City of Aberdeen v. School Board of Aberdeen, 15th November 1897, 5 S.L.T. 182. Counsel for pursuers were not called on.
The Court repelled the objection.
Counsel for Pursuers— D. P. Fleming. Agents— H. B. & F. J. Dewar, W.S.
Counsel for Defender— D. M. Wilson. Agents— Patrick & James, S.S.C.
