Scottish Court of Session Decisions

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), section 11 (1), is quoted supra in rubric.

On 7th May 1909 John Stewart, farmer, Fordie, near Crieff, raised in the Sheriff Court at Perth, against Colonel D. R. Williamson of Lawers, the proprietor of his farm, an action with regard to the sheep stock on the farm. The pursuer, whose lease expired at Whitsunday 1909, craved the Court “to ordain defender to appoint an arbiter who shall, along with an arbiter to be named by pursuer, determine the sum to be paid to the pursuer by the defender as the value of the said sheep stock, with power to the arbiters to name an oversman; and in the event of the defender failing, within such period as the Court shall appoint, to concur in entering into such reference, as adjusted if necessary by the Court, to appoint two arbiters for the purpose and with the powers above specified.”

The clause in the pursuer's lease dealing with the sheep stock at the expiry of the lease is given supra in rubric.

The defender pleaded—“The application is incompetent, in respect that the provision in the lease as to arbitration has been superseded by the said Act,” i.e., the Agricultural Holdings (Scotland) Act 1908, “and the application should therefore be dismissed, with expenses to the defender.” A condescendence and answers having been lodged, parties were heard thereon, and thereafter, on 34th May 1909, the Sheriff Substitute ( Sym) found that it was incumbent under the contract of lease for the defender to nominate a person of skill to value, along with a person to be nominated by the pursuer, the sheep stock on the farm, and appointed the defender to intimate his nomination by or before Thursday 27th May 1909, under certification that failing his doing so a nomination would be made by the Court.

Note.—“It is necessary to look at the reality of these matters whatever words may be employed. In this case the words of the contract do not raise so great a difficulty as in some cases, but whatever the words, the substance must be considered. This is a case of a reference to a valuation to avoid disputes. It is not a reference of a judicial kind to a person to act in a judicial way to determine a dispute. The distinction is a well-settled one. Two men of skill are to find the value of a subject which it is agreed is to be transferred.

It is not wonderful that at first sight anyone might think clause 11 of the Agricultural Holdings Act 1908 applies. But the question is, is it an arbitration? It is thought that the answer is negative. But it must be admitted that the Act itself in one section speaks of an ‘arbitration’ which seems to be rather a ‘valuation,’ see section 20.

The Sheriff-Substitute was referred to, and has consulted, the Arbitration Act 1894; the Agricultural Holdings Act 1906; Bell's Pr. s. 391; Kennedy Jan.20, 1819, F.C; Smith, 5 D. 749; Nivison, 11 R. 182; Robertson, 12 R. 419 (at 426); Logan, 15 R. 115; also M'Nair, 17 D. 445; Hopper 1867, 2 Q.B. 367; in re Dawdy, 1885, 15 Q.B.D. 426; in re Cairns Wilson, 18 QBD 7.”

The defender appealed, and argued—An agreement to refer the value of sheep stock to arbitration was an agreement to refer to arbitration within the meaning of the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64). There was no foundation for the Sheriff's distinction between arbiter and valuator. The scheme of the Act was to refer all questions between landlord and tenant to arbitration, sections 6 (1), 11, 20 (5). The provision as to fixtures in the latter section was in pari casu with the valuation of sheep stock. The express use of the word ‘arbiter’ was not necessary. In the Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62), section 68 and following sections, the word used was ‘referee.’ The text writers included these subdivisions under ‘arbiter’—Bell's Prin. 391; Logan v. Leadbetter, December 6, 1887, 15 R. 115, 25 S.L.R. 110. In England the distinction had been drawn, but for other purposes— In re Dawdy, 15 Q.B.D. 426; in re Cairns Wilson and Greene, 18 QBD 7; Common Law Procedure Act 1854 (17 and 18 Vict. cap. 125), section 17. In that country it was impossible to oust the jurisdiction of the Court by arbitration. Hence it was essential to know whether the question was one of arbitration or pure appraisement.

Argued for the pursuer (respondent)—The question was whether the contract between

Page: 919↓

the parties was to be held as superseded by the statute. It was not lightly to be presumed that the Legislature intended to overturn private contracts unless per expressum. Hence the terminology of section 11 must be strictly construed. There was here no material for arbitration in the sense of leading evidence. Both in the text books and in the authorities a distinction had been drawn between arbitration and valuation— Kennedy, January 20, 1819, F.C., per Lord Glenlee; Nivison v. Howat, November 16, 1883, 11 R. 182, 21 S.L.R. 104; Robertson v. Boyd & Winans, January 9, 1885, 12 R. 419, 22 S.L.R. 331, per Lord Young. There was a distinction between the two, both in character and purpose. The intention of the Legislature was only to oust private contract where the question was distinctly called arbitration.— Collins v. Collins, 1858, 26 Bevan 306, per Lord Romilly at p. 311.