that sum, the award was considered sufficient as a finding on all the counts (Dicas v. Jay (1828), 5 Bing. 281; 7 L. J. (O. S.) C. P. 80).

Award on the whole, showing cause decided.

It was sufficient, before the modern rules as to taxing the costs of particular issues, if, looking at the whole award, though there was no express termination of the cause, the Court could see that the cause was determined in favour of either party, so as to make an event on which costs could be taxed (Jackson v. Yabsley (1822), 5 B. & A. 848; Dickins v. Jarvis (1826), 5 B. & C. 528; Doe d. Williams v. Richardson (1819), 8 Taunt. 697).

Each issue should be determined.

When a cause is referred after issue joined, and the costs of the cause are to abide the event of the award, it is incumbent on the arbitrator, whether he has to make an award or only a certificate, either to dispose specifically of each issue, or so to adjudicate that it can be clearly inferred from the award or certificate in which way each of the issues has been determined, so as to enable the officer of the Court to tax the costs for the party in whose favour each issue is found (Hunt v. Hunt (1836), 5 Dowl. 442; Stonehewer v. Farrar (1845), 6 Q. B. 730; 14 L. J. Q. B. 122; Armitage v. Coates (1849), 4 Ex. 641; 19 L. J. Ex. 95; Humphreys v. Pearce (1852), 7 Ex. 696; 22 L. J. Ex. 120). The change in the forms of pleadings effected by the Judicature Acts has not relieved the arbitrator from this duty (Ellis v. Desilva (1881), 6 Q. B. D. 521; Lund v. Campbell (1885), 14 Q. B. D. 821; 54 L. J. Q. B. 281; Hawke v. Brear (1885), 14 Q. B. D. 841; 54 L. J. Q. B. 315), and Order LXV., r. 2, provides that "When issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event," a rule which is in accordance with the previous practice (see Reg. Gen. H. T. 2 Will. IV., r. 74, and Reg. Gen. H. T., 1853, r. 62).

As the issues must be specifically or substantially decided, if any issue is left undetermined, the award is bad (Bourke v. Lloyd (1842), 10 M. & W. 550; 12 L. J. Ex. 4, commenting on Duckworth v. Harrison (1838), 4 M. & W. 432; 8 L. J. (N. S.) Ex. 41, and Dibben v. Marquis of Anglesey (1834), 2 C. & M. 722; 4 L. J. (N. S.) Ex. 278).

Where a declaration contained two counts, one on a promissory note, and the other on an account stated, an award that the plaintiff had good cause of action for a certain sum, being the amount of the promissory note, was held bad, since it did not dispose, in favour of either party, of the issue on the account stated (Gisborne v. Hart (1839), 5 M. & W. 50; 8 L. J. (N. S.) Ex. 197). So, where there was a plea

of non assumpsit to a declaration containing several counts, and the arbitrator found that the defendant was justly indebted to the plaintiff in a certain sum, the award was held defective; since, although it determined that on some one or more of the counts the defendant was liable, it did not necessarily determine the issues raised by the plea on each of the counts (Kilburn v. Kilburn (1845), 13 M. & W. 671; 14 L. J. Ex. 160).

Substantial decision sufficient.

But a finding by the arbitrator leading by necessary inference to the decision of the issues in the cause is sufficient (Avelett v. Goddard (1842), 11 L. J. C. P. 123; Wilcox v. Wilcox (1850), 4 Ex. 500; 19 L. J. Ex. 27). Thus, an award that a certain sum was due from the defendant to the plaintiff "in respect of all the matters referred," was treated by Wightman, J., as a finding on all of several counts in indebitatus assumpsit in the plaintiff's favour (Baker v. Cotterill (1849), 7 D. & L. 20; 18 L. J. Q. B. 345). So, an award that the plaintiff had good cause of action, "as stated in the declaration," was held to mean on the whole declaration (Phillips v. Higgins (1851), 20 L. J. Q. B. 357).

When to a declaration containing several of the ordinary indebitatus counts the defendant pleaded, first non assumpsit, and also three other pleas, and the arbitrator found, "as to the issues, firstly, thirdly, and lastly joined," that the verdict should stand for the plaintiff, and on the second issue for the defendant, it was held sufficient (Adam v. Rowe (1846), 15 L. J. Q. B. 223; 3 D. & L. 331).

Where an arbitrator found that the plaintiff had good cause of action in respect of a count to which several pleas were pleaded, each of which, if true, was a sufficient answer to the count, as, for example, in trover, where the defendant pleaded not guilty and not possessed, it was held that such a finding amounted in fact to a distinct finding in plaintiff's favour on each issue (Hobson v. Stewart (1847), 16 L. J. Q. B. 145; 4 D. & L. 589; Williamson v. Lock (1845), 2 D. & L. 782; 14 L. J. Q. B. 93).

In an action on the usual money counts, with pleas of never indebted, Statute of Limitations, payment, set-off, and accord and satisfaction, an award that the defendant was not at the time of action indebted to the plaintiff, and finding a verdict for the defendant, was held sufficient (Holland v. Judd (1858), 3 C. B. (N. S.) 826).

Ejectment.

In ejectment, if there were several demises, the arbitrator was bound to find on which demise the plaintiff was entitled to recover, and to award for the defendant on the other demises; since the defendant was entitled to the costs of the issues on the demises found in his favour (Doe d. Madkins v. Horner (1838), 8 A. & E. 235; 7 L. J. (N. S.)

Q. B. 164; Doe d. Starling v. Hillen (1843), 2 Dowl. (N. S.) 694; 12 L. J. Q. B. 166; Doe d. Bowman v. Lewis (1844), 13 M. & W. 241; 2 D. & L. 667; Doe d. Oxenden v. Cropper (1839), 10 A. & E. 197; 8 L. J. (N. S.) Q. B. 241). But an award "in favour of the lessors of the plaintiff" was decided in the Court of Common Pleas to be a sufficient decision of both of two demises in ejectment for the plaintiff (Mays v. Cannell (1854), 24 L. J. C. P. 41; Law v. Blackburrow (1853), 14 C. B. 77; 23 L. J. C. P. 28).

Finding on specific claims in a general count.

Though an award deciding every issue was strictly sufficient, yet as a single count in assumpsit or debt under the old forms often contained a number of independent claims, it was advisable for the arbitrator, if he found for the plaintiff on one or two only of these demands, to specify which they were, and to find against him as to the rest: for, if he did not thus limit the finding, the Master would be obliged to allow the plaintiff his costs applicable to every one of the separate claims included in the count, however unfounded the majority of them might be (Gore v. Baker (1854), 4 E. & B. 470; 24 L. J. Q. B. 94).

On one defence where several defences pleaded.

With reference to the distribution of costs on a statement of defence containing many defences, the arbitrator may often with propriety find one defence proved and the others not proved (Reynolds v. Harris (1858), 3 C. B. (N. S.) 267; 28 L. J. C. P. 26).

Clause in order of reference providing for general award.

In order to avoid the difficulties which arose as to whether the arbitrator had decided on each issue, a clause was often inserted in orders of reference that it should be sufficient for the arbitrator to award in favour of the plaintiff or defendant generally, unless either party requested him to find on some particular issue or issues.

No finding on issues necessary when arbitrator to tax costs.

On a reference of a cause and all matters in difference, if the costs are to abide the event and to be taxed by the arbitrator, he need not decide the issues separately, or the cause separately, from the other matters in difference, or state the amount of the costs separately. In such a case, directing one party to pay the other a specified sum is a sufficient decision of all matters (Bradley v. Phelps (1851), 6 Ex. 897; 21 L. J. Ex. 310).

Duty of arbitrator when costs of cause do not abide event.

Where on the reference of a cause the costs of the cause do not abide the event of the award, but only the costs of the reference and

award abide that event, it is not necessary for the arbitrator to find on each specific issue, unless specially called upon to do so by the order of reference, for the costs of the reference and award are determined by the general event of the action (Duckworth v. Harrison (1838), 4 M. & W. 432; 8 L. J. (N. S.) Ex. 41; Bourke v. Lloyd (1842), 10 M. & W. 550; 12 L. J. Ex. 4).

8. Directing judgment to be entered.

Order XXXVI., r. 50, provides, inter alia, that, "subject to any such order as last aforesaid, i.e. any order to be made by the Court or judge ordering the reference, the referee shall have . . . the same power to direct that judgment be entered for any or either party as a judge of the High Court."

Order XL., r. 2, provides that "every referee to whom a cause or matter shall be referred for trial shall direct how judgment shall be entered, and such judgment shall be entered accordingly by a Master or registrar as the case may be."

And by Order XL., r. 6A, the provisions of Order XL., r. 2, are made applicable to a reference to any officer of the Court or special referee or arbitrator under an order of the Court.

For form of order directing judgment, see Appendix of Forms.

S. 9 of the Judicature Act, 1884, gave power to an official referee to direct in what manner the judgment of the Court should be entered. This power has not been repeated in s. 14 of the Arbitration Act, although s. 9 of the Judicature Act, 1884, has been repealed. Kay, J., on this subject said: "But although s. 9 of the Judicature Act, 1884, gave the official referee power . . . to enter up judgment, yet such lastmentioned power was not derived by him from that Act, but from Order XXXVI., r. 50. That rule was not abolished" (Bannister v. M'Donald (1890), W. N. 50).

Omission to direct judgment.

If a referee, officer of the Court, or arbitrator should omit to direct judgment to be entered upon a reference for trial of a cause or matter, it would seem that the proper course would be to apply to him to direct that judgment should be entered. An official referee has the same power to do this as a judge of the High Court, by virtue of Order XXXVI., r. 50, and by r. 55c of the same order this power is also given to an officer of the Court, a special referee, or an arbitrator.

Entering judgment pursuant to direction.

Order XL., rr. 2 and 6A, provide that a judgment directed by a referee, officer of the Court, or arbitrator on the reference of a cause or matter for trial under an order of the Court" shall be entered accordingly by a Master or registrar as the case may be."

The Table of Official Requirements (Judgments) Annual Practice, 1918, p. 2508, provides that an office copy of the order directing judgment must be produced, the copy having been previously filed at the Filing Department, and that a copy of the pleadings must then be filed also.

If the order directs that the judgment is to date from the service of a copy of the order directing it, an affidavit of the due service of the order must also be filed.

Effect of judgment of referee.

The judgment entered on the direction of a referee, officer of the Court, or arbitrator on a reference for trial is as much a judgment of the High Court as if it had been given by the judge who referred the matter after the trial of the cause in the usual way (Wynne-Finch v. Chaytor, [1903] 2 Ch. 475).

9. Report when question or issue of fact referred.

Where any question or issue of fact arising in a cause or matter is referred to a referee under s. 14, the result must be embodied in a report which the referee should put into the same state as a jury has to do when it finds a special verdict (per Brett, L.J., in Miller v. Pilling (1882), 9 Q. B. D., at p. 738).

In my opinion the official referee is not bound to set out the steps by which he has arrived at his conclusions; it is unnecessary for him to do so; he has only to find the ultimate issues of fact. If he were bound to state all the circumstances, what would he be bound to do in cases of account. It would do away with the utility of references if it were necessary for the official referee in every case to state his reasons' (per Cotton, L.J., in Miller v. Pilling, supra, at p. 740).

10. Appeals.

Appeals from interlocutory orders of referee.

An appeal from an interlocutory order of a referee, e.g. the decision of a referee fixing a peremptory appointment, or from a refusal by him to postpone the hearing, should be to a judge in chambers.

Illustration.

An official referee refused to postpone the hearing of a reference until the defendant had returned to England. The defendant appealed to a Divisional Court from this decision. Held that the appeal properly lay to a judge in chambers, but in the circumstances the Divisional Court heard the appeal (Richard v. Talbot (1890), 38 W. R. 478, distinguishing Byrne v. Brown (1889), 37 W. R. 592. See also Hayward v. Mutual Reserve Association, [1891] 2 Q. B. 236, and In re Leigh (1876), 4 Ch. D. 661). In Hayward v. Mutual Reserve Association, Denman, J., by way of explaining the nature of the appeal, said: "No doubt in the