Scottish Court of Session Decisions

Lord President—An action of declarator is one, peculiar indeed to our law, but which has been universally admired. It would, however, become a source of danger if it were not confined to its proper office. Its object is to declare by judgment what are the rights of parties when they come into competition. It never can be used to declare a bare fact. This disposes of the first three conclusions. They are more announcements of facts—“That a certain ditch is not a march fence,” &c. The fourth conclusion is very peculiar, and, in my opinion, liable to many objections. If it could be sustained at all, it must be based on an averment that there are march ditches which require to be cleaned out; but if we look at the record the only allegation is that there are no march ditches. It has been suggested that the conclusion might be taken as alternative, “in case the ditches before mentioned are found to be march ditches.” Even then it is liable to objection. It is not confined to the ditches mentioned before, but seeks to declare a proposition of law applicable to any march ditch between the parties. The proposition is said to mean that the defender is not entitled to clean out a march ditch at the pursuer's expense without his consent or judicial authority. But as it stands, the proposition is one which no lawyer could affirm. The fifth conclusion is liable to the same objection as the first three. I am of opinion that the action should be dismissed.

The other judges concurred, Lord Kinloch observing that he was not prepared to adopt the exact words of the Lord Ordinary's judgment, as he was of opinion that much was involved which might be the subject of a declaratory action if properly laid.