Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Balfour and Another, v. Petitioners [1909] ScotLR 294 (06 January 1909)
URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0294.html
Cite as: [1909] SLR 294, [1909] ScotLR 294
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 294↓
Court of Session Inner House First Division.
[Lord Ordinary in Exchequer Causes.
v.
Statute — Construction — Petition to Uplift Parliamentary Deposit — Public Act Providing for Petition to Inner House — Private Act for Petition to Court of Exchequer — Application to Lord Ordinary in Exchequer — Competency — Parliamentary Deposits and Bonds Act 1892 (55 and 56 Vict. c. 27), sec. 1, sub-secs. (1) and (3), and sec. 3.
Facts:
The Court of Exchequer (Scotland) Act 1856, which transfers the jurisdiction of the Court of Exchequer in Scotland to the Court of Session, and provides for the appointment of a Lord Ordinary in Exchequer Causes, enacts, sec. 2, that, “unless where otherwise expressly provided by this Act, all proceedings in Exchequer Causes under this Act shall be brought in the first instance before such Lord Ordinary.”
Held that section 2 was not limited to the class of causes initiated by that Act, but applied to all cases which would, but for the Act, have been brought in the Court of Exchequer, and that accordingly a petition to uplift part of a Parliamentary deposit effeiring to a portion of an undertaking which had not been completed was competently presented to the Lord Ordinary in Exchequer.
The Parliamentary Deposits and Bonds Act 1892, sec. 1, sub-secs. (1) and (3), provides that where moneys have been deposited to secure the completion of any undertaking authorised by Parliament, and the undertaking has not been completed, “the High Court” may order that the deposit fund or any part thereof be paid or transferred to the depositors.
Sec. 3 enacts—“In the application of this Act to Scotland.… ‘High Court’ shall mean the Court of Session in either Division thereof.”
A private Act (subsequent in date to the foregoing statute) provided that if the undertaking were not completed within the statutory limit of time, the deposit fund should be applied in payment of compensation “in such manner and in such proportions as to the Court of Exchequer in Scotland “might seem fit, and that if no such compensation were payable it should (subject to claims of creditors) be repaid to the depositors.
Held that as the provision in the Public Act as to the Court on whose order repayment was to be made was permissive in its terms, it was not inconsistent with that contained in the later private Act, and that accordingly a petition to uplift part of a Parliamentary deposit, effeiring to a portion of the undertaking which had not been completed within the time limit, had been competently presented to the Lord Ordinary in Exchequer Causes.
The Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. c. 56), sec. 2, enacts—[ The material portion of the section is quoted supra, in rubric.]
The Parliamentary Deposits and Bonds Act 1892 (55 and 56 Vict. c. 27), sec. 1, enacts—“Power to release deposits—(1) Where in pursuance of any general or special Act of Parliament, or of any rules made thereunder, moneys or securities have been deposited with, or are standing in the name of, the Paymaster-General [in Scotland the King's and Lord Treasurer's Remembrancer]—“to secure the completion by any company of any undertaking authorised by Parliament, and the undertaking has not been completed within the time limited in that behalf, the High Court may” … (after providing for compensation, &c.). … “(3) … order that the deposit fund or any part thereof be paid or transferred to the depositors. …”
Sec. 3—[ The section so far as material is quoted supra, in rubric.]
The Dundee, BroughtyFerry, and District Tramways Order Confirmation Act 1904 (4 Edw. VII, cap. clxx), enacts, sec. 86—“If the company do not previously to the expiration of the period limited for the completion of the tramways, complete the same … then and in every such case the tramways deposit fund, or so much thereof as shall not have been paid to the depositors … shall be applied towards compensating any landowners or other persons whose property has been interfered with, … and shall be distributed in satisfaction of such compensation, as aforesaid, in such manner and in such proportions as to the Court of Exchequer in Scotland may seem fit, and if no such compensation is payable, … then the tramways deposit fund … shall be repaid or retransferred to the depositors.…“[ cf. General Orders under Private Legislation Procedure (Scotland) Act 1899 (62 and 63 Vict. c. 47), Order 107.]
On 15th October 1908 George Balfour, engineer, Cannon Street, London, and
Page: 295↓
another presented a petition to the Lord Ordinary in Exchequer Causes ( Johnston) for authority to uplift part of the fund deposited with the King's and Lord Treasurer's Remembrancer in connection with the construction of the Dundee, Broughty Ferry, and District Tramways. At the date of the application most of the fund had already been uplifted. The remaining portions—(being the sums now sought to be uplifted)—consisted of (1) a sum of £88, 17s. 7d. effeiring to the last portion of the tramways constructed, and (2) a sum of £99, 4s. 3d. effeiring to a portion of the line which, owing to the expiry of the time limited by the Order for the completion of the tramways, could not be constructed under the existing powers.
On 6th January 1908 the Lord Ordinary in Exchequer Causes ( Johnston) reported the petition to the First Division. In doing so his Lordship stated that he was doubtful, looking to the terms of section 2 of the Court of Exchequer (Scotland) Act 1856, and the terms of sections 1 and 3 of the Parliamentary Deposits and Bonds Act of 1892, whether he had power to grat the prayer of the petition so far as regarded the sum of £99, 4s. 3d. His Lordship referred to the case of Perth Quarter Sessions, December 18, 1861, 24 D. 221.
Argued for petitioners—The petition was competently brought before the Lord Ordinary in Exchequer Causes, for section 86 of this Provisional Order impliedly provided that the deposit fund should be paid over on the Order of the Court of Exchequer in Scotland, and that meant in the first instance the Lord Ordinary in Exchequer Causes. That being so, the case of Perth Quarter Sessions, December 18, 1861, 24 D. 221, cited by the Lord Ordinary in reporting the petition, was inapplicable. In the case of Mason, May 24, 1899, 7 S.L.T. 25, a similar petition was held to be competently presented to the Lord Ordinary in Exchequer Causes.
The difficulty which has arisen is that the application to uplift the deposit was made to the Lord Ordinary in Exchequer, and the first question reported is whether any such application could be made in view of the terms of section 2 of the Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. c. 56). By section 1 that Act transferred the jurisdiction of the Court of Exchequer to the Court of Session. By section 2 it provides for the appointment of a Lord Ordinary in Exchequer Causes, and enacts that, “unless where otherwise expressly provided by this Act, all proceedings in Exchequer Causes under this Act shall be brought in the first instance before such Lord Ordinary.” The Act proceeds to deal with other matters, and initiates certain Exchequer procedure, and it might be possible to read the clause I have quoted so as to limit the provisions as to procedure to the class of causes initiated by that Act. I do not think that that is the just reading of the clause. Its true meaning is, I think, this, that, unless where otherwise expressly provided, all proceedings in causes which would have been brought in the Court of Exchequer, but are by this Act transferred to the Court of Session, must be brought in the first instance before the Lord Ordinary in Exchequer Causes. That is in accordance with long practice, and I think disposes of the first point that has been brought before us.
The other difficulty arises in this way. The Parliamentary Deposits Act of 1892 (55 and 56 Vict. c. 27), which deals with the case of money deposited or standing in the name of a Government official, after providing for the case of parties injured claiming compensation, and for the insolvency of the company, proceeds as follows:—“Subject to such application as aforesaid the High Court may, after such public notice as to the Court seems reasonable, order that the deposit fund, or any part thereof, be paid or transferred to the depositors;“and in the definition clause “High Court” is defined to be “the Court of Session in either Division thereof.” That Act—which I may say, in passing, does not seem to be confined to deposits before its date—appears to limit the exercise of the powers conferred by it to the Court of Session in either Division to the exclusion of the Outer House. But the Provisional Order which we are dealing with here is later in date than the Act of 1892, and under section 86 of that Order it is provided that the deposit fund shall be distributed in satisfaction of any compensation that may be due “in such manner and in such proportions as to the Court of Exchequer in Scotland may seem fit,” i.e., the Court of Session; and then, after providing for payment to the liquidator in case of insolvency, it proceeds—“Subject to such application” the deposit fund “shall be repaid or retransferred to the depositors.” The section does not say by whom the deposit fund is to be repaid, but there can be no doubt that it is the Court of Exchequer. Now, We would not readily hold that a public Act was repealed by implication in a private Act, but here there seems to me to be no repeal at all, for the Act of 1892 is permissive, and does not say that the same thing may not be done by Parliament
Page: 296↓
The Court remitted to the Lord Ordinary in Exchequer Causes to grant the prayer of the petition.
Counsel for the Petitioners— Lyon Mackenzie. Agents— Guild & Shepherd, W.S.