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The parties submitted a disputed claim for work done by the pursuer, as a clerk to the defender, to Mr James Lang, W. S. by a minute signed by them, to the effect that they ‘do hereby submit and refer all demands, claims, disputes, questions and differences depending and subsisting between’ them, ‘to the amicable decision of James Lang, Esq. W. S.; and’ they ‘bind and oblige’ themselves ‘to stand by his decision.’
The referee awarded a certain sum, and, in regard to expenses, added this note to his award: ‘The referee is of opinion, that he is not empowered, under the minute of reference, to find expenses due to either party;’ but, upon reconsideration, he found the pursuer entitled to expenses, founding on Berry v. Watson, 26th Jan. 1835.
The defender pleaded—1. That the referee had no power to award expenses. 2. That there was a special exclusion of that power by the parties, before agreeing to the submission.
The Lord Ordinary, before going into the special defence of compact, that the referee should not have power to award expenses, ordered minutes of debate on the general question, whether, under the terms of this reference, there was power in the referee to give expenses.
The Lord Ordinary (21st June 1836) ‘repelled the objection insisted on by the defender as to the incompetency of the award of expenses by the arbiter.’
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