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their number to be water trustees, of whom seven shall be members of the Town Council, and five shall be elective members; and the water trustees so appointed shall go out of office at the end of a year from their being so appointed or reappointed." A meeting of the Board of Police was held on 20th Nov. 1866, being the first meeting after the first annual election of elective members, which took place on 13th Nov. At this meeting a list of parties qualified to act as water trustees was proposed by the Provost, and a counter list by Caird, one of the complainers. A vote being taken, the Provost's list was declared carried.
It was averred by the complainers, and substantially admitted, that, immediately after the election, the complainers Ballantyne and Neilson, who were two of the parties thus elected, declined to act, and no other members of the Police Board were then appointed in their stead. It was also averred by the complainers that Neilson intimated his intention to decline before the vote was taken; but this was denied by the respondents, and the extract minute produced bore nothing to that effect. The grounds of suspension were substantially two (1) That the whole proceeding was illegal, because the vote was taken on a list of names put before the meeting as a whole, and not by a separate vote on the appointment of each individual in the list; and (2) that in respect of the declinature by Neilson and Ballantyne, and the failure to elect others in their room at the meeting of 20th Nov., the whole election was void, and no new election could be made till Nov. 1867.
The Lord Ordinary on the Bills (Mure) refused the suspension, and the Court, without hearing respondent's counsel, unanimously adhered.
The Lord President said that he must hold Neilson and Ballantyne to have been elected, because it appeared from their own statement that the Provost declared them elected; and having been elected, they might resign, and their places fell to be supplied, as provided in section 11 of the Act. Therefore, there was no ground for holding their declinature fatal to the election. But further, he thought the thing went deeper than that, and he was very doubtful of the power of two or three Commissioners to paralyse the statutes and render it inoperative. That point, however, was not before the Court. It was sufficient for the decision that there was here a valid election of a sufficient number.
Act-Decanus & Mackenzie. Agents-Murray, Beith, and Murray, W.S.-Alt.-Young and Gifford. Agent-John Ross, S.S.C.
ADAM AND KIRK v. TUNNOCK'S TRUSTEE.-Nov. 20.
A had for some years a cashier, who, on his assuming a partner, continued in the service of the firm. After the cashier's death, his estates were sequestrated, and A, and also the firm of which he was a partner, lodged separate claims on the estate. The grounds of these claims were, that the cashier had embezzled certain sums-in the first claim, when he was cashier to A; and, in the second, when he was cashier for the firm.
The trustee rejected both claims; but on appeal, his deliverance was reversed, and expenses given to both appellants. The case was now before the Court on a question as to these expenses. It was not disputed that the general principle in law was, that where a claimant, whose debt was disputed, succeeded in the litigation, and was found entitled to expenses, he could not have his claim diminished by the expenses of such litigation; but it was maintained that there were here two separate claims, both successful. While the first claim could not be subjected to any part of the expenses of its own litigation, it must, in common with the other creditors, bear its share of the expenses of the litigation with the second claimant, who in his turn must contribute to the expenses of the first. On the other hand, it was maintained, that the two appeals being identical in form and substance, and both having succeeded, there should be no deduction in either case. The Lord Ordinary (Ormidale) gave effect to the former contention; but the Court reversed. This was not a case of a number of creditors, with, it might be, separate and independent interests, uniting in support of some legal principle. Here the question was the same, the interest was the same, and the same inquiry was necessary to elicit the facts of the case. Expenses had been given to both parties in their appeal against the judgment of the trustee. Under these circumstances, they thought that no deduction should be made from either claim in a question with either appellant.
Act.-A. R. Clark & Mackay. Agent A. Howe, W.S.-Alt. Pattison & Watson. Agent Jas. Somerville, S.S.C.
DUKE OF BUCCLEUCH v. COWAN, &c.—Dec 21.
Jury Trial-Bill of Exceptions-Specific directions to Jury-Public and private stream-Nuisance.
This case came before the Court on a bill of exceptions taken by the defenders at the trial, which took place at last July sittings before a special jury. For the circumstances of the case vide 4 Macph. 475. The charge, as condensed by his Lordship, and the directions which the defenders requested, and his Lordship refused to give to the jury, are, as slightly abridged, in these terms:
The Lord Justice-Clerk directed the jury, in point of law, that there was a marked distinction between the rights of proprietors on the banks of a public river and those of proprietors on the banks of a private stream. That the public rivers of this country are vested in the Crown for public purposes, and the uses which the proprietors or inhabitants on their banks may have of the water are entirely subordinate to these public purposes; but that in a private stream the bed of the stream is the property of the owner of the lands on the banks; that he is entitled to the uncontrolled use of the water, subject only to the conditions that he shall suffer it to pass undiminished in quantity, and unimpaired in quality, to his neighbours below; that these conditions, however, are necessarily subject to some modifications, because there is a certain unavoidable consumption of the body of the water, and that it is impossible to prevent running streams from receiving impurities from natural causes, and from causes incidental to the presence of inhabitants on their banks; but that an upper proprietor is not entitled to throw impurities, especially artificial impurities, into the stream
so as to pollute the water; that the lower proprietor is entitled to complain of such pollution as renders the water unfit for primary purposes; but that it will be a good defence that the stream has been from time immemorial devoted to secondary purposes, so as to supersede and abrogate the primary purposes. That it is not indispensable for each of the pursuers to prove that any one of the mills would of itself pollute the river; that it is sufficient, to entitle a pursuer to a verdict on any one of the issues, to prove that the river is polluted by the mills belonging to the defenders generally, to the effect of producing a nuisance to him, and that the defenders in that issue materially contribute to the production of the nuisance; but it is indispensable for each pursuer to prove that the river is polluted by the mills of the defenders so as to produce a nuisance to him independently of the production of any nuisance to the other pursuers; and that each defender against whom he asks a verdict materially contributes to the production of such nuisance to him.
The directions asked for were—
1. That the law does not regard trifling inconvenience; that, in determining the question in the issues, time, locality, and all the circumstances should be taken into consideration by the jury; and that in districts where great works have been erected, which are the means of developing the national wealth, persons are not entitled to stand on extreme rights, or complain of every matter of annoyance.
2. That under the terms of the tack of the carpet manufactory, granted by Lord Melville to Henderson & Widnell in 1847, Lord Melville is responsible in this question with the defenders for the use which has been made of the water by his tenants.
3. That under the terms of the tack of the carpet manufactory, granted by Lord Melville to Whytock & Company in 1834, Lord Melville is responsible in this question with the defenders for the use which has been made of the water by his tenants.
4. That none of the pursuers is entitled to a verdict against any one defender unless the jury shall be of opinion, in point of fact, that the matter discharged by such defender into the river pollutes the river within the property of such pursuer to his nuisance.
5. That if the jury are satisfied that the primary uses of the water are destroyed at Melville and at Dalkeith with the consent, or with the acquiescence of the pursuers, by causes arising below St Leonard's Mill, for which none of the defenders are responsible, they must find for the defenders on all the issues as far as regards the Duke of Buccleuch and Lord Melville.
After hearing counsel, Lord Cowan said that the directions given were Bound in law, and, further, that the presiding judge had done rightly in refusing to give the specific directions asked by the defenders. The distinction drawn between public and private streams, and the statement in law as to the use which riparian proprietors were entitled to make of the water, were unexceptionable in themselves, and had received the sanction of many decisions since they were first defined in the Lochrin case (Bell's Cases, p. 338, 3 Pat. App. p. 403). The exception to the second part of the charge rested upon this fallacy, that, because a certain act did not of itself amount to a nuisance, though it materially contributed to its production, the act was therefore a matter of legal right. This proposition was opposed
both to law and common sense, and would be most dangerous in its consequences. The first direction asked, so far as not idle and unnecessary, was unsound in itself and inapplicable to the circumstances of the case. It was not true that a nuisance became legal if such nuisance was a public benefit; and, further, the manufactures in question were not carried on for the public benefit, but for private profit. There was no definition given as to what was meant by "extreme rights," and the only effect of such a vague direction would have been to distract the mind of the jury from the main question. As to the second and third directions, they were not such as to meet the case, which it was the avowed intention of the defenders to lay before the jury; they could only proceed on the assumptions that the carpet manufactories were of themselves a nuisance irrespective of the paper works; and, secondly, that the use made by the tenants of the water was authorised by Lord Melville, so as to make him responsible. There was no evidence that these manufactories were such a nuisance. On the contrary, the whole evidence went to show that the esparto grass was the principal if not the sole cause of nuisance; and it was a monstrous thing to say that one nuisance could not be got rid of because of the existence of another. The fourth direction had already been disposed of in the judge's charge. The fifth direction was objectionable (1) Because no time was specified as to when the primary purpose of the water was destroyed; (2) because the jury had been already told that, if there had been a prescriptive usage of the water for secondary purposes, this would be sufficient to entitle them to find for the defenders-if it meant any more than this, it ought to have been the subject of a special issue; and (3) because the pursuers were entitled to proceed against all the sources of nuisance. The case would have been different if, as in the case of Lochrin burn, the river had been allowed to become a common sewer, so that the removal of another nuisance would have been useless. That was not the case here.
The other judges concurred.
Act.-Advocatus Sol.-Gen., Shand, and Johnstone. Agents-J. and H. G. Gibson, W.S.-Alt. Decanus, Young, Gifford, Clark, A. Moncrieff, and Asher. Agents-White-Millar & Robson, S.S.C.; and Menzies & Coventry, W.S.
LEITH POLICE COMRS. v. CAMPBELL AND OTHERS.
Process-Sheriff-Appeal-Competency-25 & 26 Vict. c. 101 § 197. The Commissioners of Police for Leith, under "The General Police and Improvement (Scotland) Act, 1862," gave notice in terms of that statute that North Junction Street, North Leith, being a private street in the meaning of the Act, and not being properly paved and levelled, it was their intention to have this done at the expense of the owners of the property fronting or abutting on the street; and, after a conference with the proprietors, they issued an order to that effect. Certain of the proprietors appealed to the Sheriff, who held that the street was not a private one, and the order was annulled. Against that judgment the Commissioners appealed, the summons containing both declaratory and reductive conclusions. The grounds of appeal were (1) that the Sheriff pronounced judgment without allowing proof or making due inquiry, and (2) that he did not apply his mind to the matter. By section 197 of the Act, the Sheriff's judgment is
declared to be final, and not revocable in any way or on any ground whatever. The Lord Ordinary dismissed the action as incompetent; and today the Court substantially adhered to that interlocutor. The Sheriff's jurisdiction was in their opinion privative, and not subject to review.
Act.. Sol.-Gen. & W. Ivory. Agents-Baxter & Mitchell, W.S.--Alt. -Advocatus & Pattison, Clark & A. Moncrieff. Agents-J. Lamond, S.S.C., and Scott Moncrieff & Dalgety, W.S.
BONES V. MACLAURIN'S TRUSTEES.-Dec. 21.
Title to sue-Decree dative.
Action by persons designing themselves executrices-dative qua surviving next of kin of Mrs John Maclaurin against the trustees under the will of the deceased John Maclaurin. The conclusions were for count, reckoning, and payment as to half of the goods in communion of Mr and Mrs Maclaurin at her death. At that date the next of kin of Mrs Maclaurin were not the pursuers, but her sister Mrs Bone, the pursuers' mother. Mrs Maclaurin was survived by her husband, who is now dead. The defenders pleaded that the pursuers did not represent Mrs Maclaurin's next of kin at the time of her death, and were not beneficially interested in her succession; and that the pursuers' title as libelled in the summons was contradicted by their averments on record.
The Lord Ordinary sustained these pleas and dismissed the action, holding that the goods in communion vested in the pursuers' mother, and were transmitted to her husband jure mariti, and that the pursuers' title could not avail, as the subject of the claim was no longer in bonis of the defunct.
The Court recalled this interlocutor, holding that the defenders could not get behind the decree-dative by way of exception; that it was competent, especially where there was no opposition, as was the case here, even for those not beneficially interested in a succession to an intestate to be confirmed qua next of kin; that the pursuers were entitled to be confirmed, though not the next of kin at the date of Mrs Maclaurin's death; and that the description of their title must be read to infer this.
Act.-Clark and Watson. Agent-L. M. Macara, W.S.-Alt.Gifford and Paterson. Agents-J. and A. Peddie, W.S.
MACKINTOSH V. ARKLEY.-Dec. 22.
A warrant authorising the confinement of the pursuer in a lunatic asylum was granted by the defender as Sheriff. This action, brought for reduction of that warrant, was dismissed, as incompetently laid against the present defender, who had no right to and no interest in the warrant sought to be reduced. The plea ought to have been stated as against satisfying the production.
Act.-J. C. Smith. Agent J. Somerville, S.S.C.-Alt.-Shand. Agents-Macrae and Flett, W.S.
FELL'S TRUSTEES v. SCOTTISH PROVIDENT INSTITUTION.—Jan. 9.
Dean of Guild Court-Possessory Judgment.
This case originated in the Dean of Guild Court. The Scottish Provi