TANNOCH v JAMES REID and DAVID KAY, Commissioners of Police of Kilmarnock (Court of Session)

A petition and complaint was presented to the bailies of the town against Tannoch, in the name of ‘the Commissioners of Police for the town of Kilmarnock,’ in order to compel him to remove an alleged obstruction from the street, in terms of the powers conferred on the commissioners by the statute.

This petition was signed by James Reid, who was a commissioner at the time when it was presented, and by David Kay who was the procurator usually employed by the commissioners; but no instance appeared on the face of the complaint, except that of ‘the Commissioners.’

Tannoch entered appearance, and met the petitioners on the merits of the complaint in the inferior court. He afterwards presented a bill of advocation against some of the interlocutors of the magistrates ordaining him to remove the outer stair, which was the subject of the complaint; and the objection to the want of a proper instance was brought forward for the first time in the reasons of advocation.

The Lord Ordinary pronounced the following interlocutor:—‘Advocates the cause, and repels the objections to the citation, and to the designation, and title of the respondents; and, on the merits, before further answer, allows the respondents a proof, prout de jure , that the stair in question is an encroachment on the street or highway adjoining to the complainer's property; and to the complainer a proof of the contrary; and to both parties a conjunct probation, &c.’

The advocator reclaimed , and pleaded —That no power was conferred by the statute upon the commissioners to sue in their corporate capacity, or by a nomen juris , such as they had assumed in the petition and complaint; and that their title to do so could not be maintained at common law. A similar objection was found to be fatal to the instance, in the case of the Culcreugh Cotton Company, 27th Nov. 1822.