1842.

officers of the company to obtain a declaration of BALFOUR right in any case will be at an end.

v.

MALCOLM,

et e contra.

[Lord Campbell:-Perhaps it may have been the intention of the Legislature that there should not be any action of declarator allowed to the company.]

Such an intention would then have been expressly declared. The Court of Session, which is the supreme Court of Scotland, cannot have its jurisdiction taken away unless there are strong words used for that express purpose. Buchanan v. Towart (d).-[Lord Brougham:-Can there be a declarator that A. B. is liable to pay a fine, where you admit that you do not seek to get the fine itself? If so, your argument would go to show that everything might be taken into the superior Court, provided only it was taken in the form of an action of declarator.]-Wherever rights depend on the construction of a statute, an action of declarator is the proper form in which to seek to have them established. In the case of Buchanan v. Towart, words which gave the magistrates jurisdiction "finally to determine," and in Russell v. The Glasgow Road Trustees (e), words which made their decision "final and conclusive," were held not to take away the jurisdiction of the Court of Session. Anderson v. The Magistrates of Renfrew (f), Lord Prestongrange v. The Magistrates of Haddington (g), and Guthrie v. Cowan (h), are all to the same effect. And in Patallo v. Maxwell (i), where a jurisdiction was conferred which seemed intended to exclude the review of any other Court, the Court of Session held that its inherent and constitutional powers could not

1842.

BALFOUR

บ.

MALCOLM,

be excluded except by direct, positive, and express terms of exclusion. The special remedies given to this court are confined entirely to special matters, such as fines and penalties; but there are no provisions for et e contra. securing the declaration of the general rights of the company; and these can only be ascertained by an appeal to the ancient and constitutional powers of the Court of Session. Questions of right affecting land might arise, and it cannot be contended that such rights could be settled by summary adjudication before a sheriff or a justice of the peace. The 5 Will. 4, c. 33, has already been the subject of consideration in the case of Balfour v. Waugh (k); and the objection now relied on was not then thought worthy of being made the subject of discussion.

[The Lord Chancellor :-My doubt is whether the last Act has not provided for everything so as to render all proceedings by way of declarator unneccessary. It appears to me to have been the intention of the Legislature that the least expensive mode of proceeding should be the one adopted; but the question is whether it can be said that that intention has been fully carried into effect?]

No such intention has been expressed. The interest in discussion may be very large; and if an action like the present is not competent, there is no mode in which the decision of the sheriff can be reviewed. This general power will be exercised by the superior Courts of a country, unless expressly taken away by the Legislature. It was held to be so taken away in Foote v. Stewart (1); but there the excluding expressions were very strong, and the process sued out was not of the sort which the Legislature would have permit

(*) 2 Shaw & Macl. 530.

(1) Morr. 7385.

1842.

BALFOUR

v.

MALCOLM,

et e contra.

ted to be in force under the peculiar circumstances of
the case.
The general principle in such matters is
broadly stated by Erskine (m):-"No encroachment
on the jurisdiction of the established Judges is to be
presumed. It is therefore a never-failing rule, in all
new jurisdictions, that the limitation under which the
jurisdiction is granted is to be most amply interpreted,
so as to import a denial of every branch of jurisdic-
tion beyond those limits." And Lord Stair (n), in
stating the rule in similar terms, makes express refer-
ence to the undoubted authority of the Court of Ses-
sion in all actions of a declaratory nature. The 104th
section of the 59 Geo. 3, and the 80th section of the
7 Geo. 4, do not affect this case.-[The terms of them
were read by the counsel.]-Not only do they not
apply to contracts relating to land, but they do not
apply to any contracts where continuing rights may
come into question. Suppose that Mr. Balfour had
contracted, as the representative of the company, to
supply the plaintiff with water for all the houses on one
side of a street: suppose that in point of fact there were
good grounds to reduce this contract as for fraud, the
company would sue for a reduction of the contract.
That is a sort of action which it clearly is not competent
for the sheriff to entertain, and yet it might be said to
be something "relative to this Act." It is clear there-
fore, on the whole, that the remedy given before the
sheriff is merely cumulative, and that the interlocutor
of the Lord Ordinary, so far as it has been adopted
by the Court of Session, cannot be maintained. The
judgment of the Court must to that extent be re-
versed.

Then as to the lis alibi pendens, with relation to
(2) Bk. 4, t. 3. s. 47.

(m) Bk. 1, tit. 2, s. 7.

1842.

v.

MALCOLM,

et e contra.

which Mr. Malcolm appeals against the judgment of the Court of Session; it is plain that there is nothing BALFOUR in his objection. He can have no right to deprive the company of the means of being declared entitled in general terms to have a remedy for nonpayment of water rates, merely because he has first instituted in an inferior court a process to bring the amount of a particular rate into discussion. On this point, therefore, the cross appeal must be dismissed.

As to the third question, whether this matter is of sufficient value to be entertained in the Court of Session, it is clear upon decided cases, Davidson v. M'Nie (0), and Giffin v. Orr (p), that unless it distinctly appears on the face of the record that the sum sought to be recovered is less than 257., the objection cannot be sustained. Here it did not so appear: it could not, for no sum was demanded, but the declaration of a right was asked, and nothing more. this point also the cross appeal must be dismissed.

On

Mr. Pemberton and Mr. Anderson, for Malcolm : There is nothing asked in this summons of declarator but what the sheriff has authority to declare, and must declare, in any proceeding relating to rates, fines, and penalties. If he had thought fit, he could have declared that the company was entitled to levy this sum of 17. 16s.; and then the declarator would not have been one of a mere general right, but a declarator with respect to this individual sum of money. There are, no doubt, many cases in which the Court in Scotland would make a declarator of a general right; but such a declarator is not sought in this case, and would be utterly useless. Here the party who is now the occupier

(o) 2 Shaw, 76.

(p) 3 Shaw, 301.

1842.

BALFOUR

V.

MALCOLM,

et e contra.

the

of the house may not be so next year, and he does not
represent party who may be its occupier, and who
consequently would not be bound by his act; nor may
he be, nor can he represent, the occupier of any other
house in any other part of the town. The jurisdic-
tion of the sheriff is in fact that which can alone be
resorted to. There is a great distinction between a par-
ticular and a general declarator. In Hall v. Grant (q)
a question was raised with reference to the right of
the sheriff to pronounce a declarator.
That was a

question as to rights arising in certain clauses in a
lease, though the rights claimed were not expressed
in clauses of irritancy. The Lord Ordinary there
held that, though the sheriff could not give a decla-
rator in an action of declarator proper, he might pro-
nounce a declarator on special facts brought before
him; and that that would be the same in substance,
so far as regarded the particular suit. The case was
brought on appeal to the Court of Session, and the
Lords confirmed the holding of the Lord Ordinary.
So far, therefore, as a declarator was necessary in this
case, the sheriff could have pronounced one on the
special facts brought before him; and the argument as
to the absence of any other mode of proceeding except
before the Court of Session consequently falls to the
ground.

The proceeding here is not on the face of it a proceeding in the nature of a declaratory action; it is in substance a demand that Malcolm should pay Balfour a certain sum of money calculated on the police rental. The proper tribunal to decide on such a demand is the sheriff's court, and the proper form of proceeding is a petitory action. This is not an action belonging to

(2) 9 Shaw & Dunl, 612.