Scottish Court of Session Decisions

The Glasgow District Subway Company, incorporated by Act 53 and 54 Vict. c. 162, were authorised to make and maintain two subways and relative works in the City of Glasgow, &c. By that Act certain provisions were made for the protection of the Corporation of Glasgow with respect to gas-pipes, drains, roads, &c., which might be interfered with in the execution of the works, and it was provided by sec. 56 that if the company and the Corporation should differ, “Every such difference shall, on the application of the company or of the Corporation, be referred to the determination of an arbitrator, to be mutually agreed upon before the construction of the subways and works thereby authorised is commenced, and failing such agreement, as may be appointed on the requisition of any of the parties named in said section by the Sheriff of the county of Lanark.” No arbitrator was mutually agreed upon before the construction of the works was commenced.

Upon 14th July 1893 the Corporation presented a petition to the Sheriff of Lanarkshire stating that certain differences were on the eve of arising between the Corporation and the company, rendering it necessary that an arbitrator should be appointed, and concluding with the following prayer—“May it therefore please your Lordship, upon considering this application, to appoint an arbitrator in terms of the said Act, for the purpose of determining all and any differences which may arise between the Corporation and the company under the same.”

The Sheriff ( Berry) on 8th August 1893 pronounced the following interlocutor:—“Having heard the agents for the Corporation of Glasgow and the Glasgow District Subway Company, and considered the foregoing petition—Appoints Professor Archibald Barr, of the University, Glasgow, as arbitrator, in terms of the Act referred to in the petition.”

Against this interlocutor the company appealed to the First Division of the Court of Session.

Counsel for the Corporation argued that the appeal was incompetent. This was not a judicial proceeding in the Sheriff Court of Lanarkshire—no record had been made up—but an application to the Sheriff in an administrative capacity. His deliverance so pronounced was not capable of being extracted, and could not be reviewed by way of appeal—cf. Strain v. Strain, June 26, 1886, 13 R. 1029. The Sheriff of Lanarkshire in naming an arbitrator had acted as any other individual, e.g., the chairman of the Chamber of Commerce, nominated for that duty, would have done. The judgment could not, under the former system, have been brought here by advocation, and accordingly appeal was incompetent. If the deliverance was ultra vires of the Sheriff, redress should have been sought by reduction, or by suspension and interdict.

Argued for the Company—The Legislature had nominated not an individual but the Sheriff of Lanarkshire. The interlocutor was a judgment by a Sheriff. They were prepared to show he had gone beyond the jurisdiction and powers conferred upon him by the statute in pronouncing this judgment when he did, and they were entitled to do so by appeal from the Sheriff Court in ordinary form.

At advising—