Scottish Court of Session Decisions

Peter Johnston and James Gordon, trustees of the late Mr Hannay, sold a quantity of growing wood by private bargain to James Robertson, wood-merchant in Dumfries. One of the conditions of the sale was expressed in these terms:—“The said Peter Johnston and James Gordon, as trustees foresaid, on the one part, and the said James Robertson, and the said Robert M'Kay and Adam Dickson, his cautioners, on the other part, do hereby submit and refer the import and meaning of the present contract, as well as the boundaries of the said woods, and all other disputes which may arise regarding the said sale in any manner, to the determination and final decision of William Mure, Esq. of Whitehill, who is hereby appointed sole arbiter, and whose award, whether verbal or in writing, shall be final and binding on all concerned.” Robertson cut down the wood, and paid the price. He afterwards raised an action of repetition of £380 from the trustees, alleging that the wood had been sold to him, as extending to 150 acres, whereas it only extended to 129. Besides defences on the merits, the trustees produced a letter from William Mure, the arbiter, accepting of the reference contained in the clause above quoted, and stated as a preliminary defence, that this was one of the cases expressly provided to be submitted to Mure's arbitration, and therefore an action in Court was excluded. Robertson answered that a dispute of this nature did not fall within the true meaning of the obligation to submit. The Lord Ordinary, “in respect of the letter from Mr Mure, the referee under the articles of roup, agreeing to accept the reference, dismissed the action, and decerned, and found the pursuer liable in expenses.”

Robertson reclaimed.