Scottish Court of Session Decisions

I cannot draw any distinction between this case and the well-known case of Cathcart v. Board of Agriculture ( 1915 S.C. 166), which was referred to in the argument. There the authority whose opinion was to be asked was the Lord Ordinary instead of the Sheriff, and the ground of judgment was that the jurisdiction which was given was a jurisdiction which began and ended with the opinion of the person whose opinion was to be sought. Here in the same way the arbitrator is entitled to go to the Sheriff for his opinion, and that opinion is to end the matter. Under the Agricultural Holdings Act of 1908 the position would have been the same but for section 11 (3) of that statute, which provides—“If in any arbitration under this Act the arbiter states a case for the opinion of the sheriff on any question of law, the opinion of the sheriff on any question so stated shall be final, unless, within the time and in accordance with the conditions prescribed by Act of Sederunt, either party appeals to either Division of the Court of Session, from whose decision no appeal shall lie.” There is no such provision in the Act of 1917, and I cannot see that by any legitimate inference you can reach the conclusion that not only the provisions of the Second Schedule to the 1908 Act, but also the provisions of section 11 (3) of the statute itself, were to be imported into the Act of 1917. Even on the statute, as Mr Watson pointed out, by section 11 all the provisions are carefully confined to arbitrations under the 1908 Act. If it had been intended that there should be an appeal under the Act of 1917 something like this would require to have been provided—“All the provisions of section 11 of the Act of 1908 shall apply to all arbitrations under this Act in the same way as if they had been under the Act of 1908.” But nothing of the kind is provided, and it seems to me that what is given by section 11 (1) of the Act of 1917 is a right to the arbitrator to apply to the Sheriff for his opinion on a question of law, and that opinion when it is obtained is final upon that particular question of law arising in that arbitration.

I can see many good reasons why there should not be any appeal. It would cause additional delay and expense, and it would be going beyond the intention of the Legislature if we introduced a procedure which would allow the opinion of the Sheriff, given on the application of the arbitrator, to be matter of appeal to this Court.

I am of opinion therefore that the objection to this note of appeal on the ground of incompetency is well founded, and that we should refuse to consider the appeal.

Lord Dundas—I am of the same opinion. Section 11 (1) of the Corn Production Act of 1917 provides that “Arbitrations under this part of this Act shall be before a single arbitrator under and in accordance with the provisions of the Second Schedule to the Agricultural Holdings Act 1908.” That schedule, when one turns to it, will be found to contain nothing about an appeal to the Court of Session. I therefore find it exceedingly difficult to see how section 11 of the Act of 1917 can be held to incorporate into that Act anything more than the provisions of the Second Schedule to the Act of 1908, and in particular to incorporate section 11 of the 1908 Act, by sub-section (3) of which alone an appeal to the Court of Session is authorised. In these matters one must go carefully and strictly to work, and I cannot see how an appeal to the Court of Session can be held to be incorporated in the Act of 1917. I think that, where a new statutory jurisdiction is created, as is done by the Act of 1917, there is not any presumption that because it is “the Sheriff” to whom jurisdiction is given, there is to be an appeal from him to this Court as in the ordinary course when he is sitting in his own Court as sheriff— cf. Lawrence v. Comptroller-General, 1910 S.C. 683. It was recognised rightly in the case of Cathcart, 1915 S.C. 166, that the onus on a person who stands in the position such as that of the appellants in this case to establish his claim to the right of appeal is a heavy one, and here I think the appellants have failed to discharge it. The case of Cathcart is difficult to distinguish in any material respect—there are, of course, differences—from the present case. Accordingly I hold the appeal to be incompetent. I think it not improbable that appeal to the Court of Session was intentionally excluded by Parliament; but whatever the intention may have been, I cannot hold that the appellants have succeeded in showing that a right of appeal has been included.

Lord Salvesen—I am constrained to come to the same conclusion. This case is distinguishable, perhaps, from the case of Cathcart, 1915 S.C. 166, in that the Lord Ordinary in the statute there under consideration replaced the sheriff in the Second Schedule to the Act of 1908, which contains the arbitration code. Section 11 of the 1908 Act expressly gives the right of appeal against the sheriff, but there was no corresponding provision expressly giving a right of appeal from the Lord Ordinary. We have not that difficulty here. At the same time I am unable to hold that the words which your Lordship has read from the Corn Production Act of 1917 incorporated not only the arbitration code in the Second Schedule but also section 11 of the Act of 1908.

If Parliament intended, as I daresay it may have, to make the provisions of the 1908 Act, so far as legal proceedings are concerned, applicable to the 1917 Act, it ought to have expressed it in very clear language. It would have been very easy to say—“In terms of section 11 and the provisions with regard to arbitration contained in the Second Schedule.” It has not said so, and whatever may have been its intention we can only gather the intention of the Legislature from the words actually used. I may say I regret the decision, because it may lead to the law being different in different sheriffdoms, there being no mode by which uniformity can be enforced. Under the 1908 Act uniformity in the decisions of the

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