party making the tender" (Lord Cockburn in Bisset v. Anderson, Dec. 11, 1847, 10 D. 233.)

The following is a specimen of a tender to which the Court refused to give effect. There was an offer of £22 in name of reparation, "which sum of £22, to be deducted from the sum due by the pursuer or otherwise accounted for, with payment of the expenses hitherto incurred in the action, and he protested that if this offer should be declined, and the jury should award that or any lesser sum, the pursuer should be liable in expenses" (see Bisset's case, supra). A tender was refused effect which had a condition adjected to it," that the pursuer should relieve the defender of any claim which might be hereafter brought against the pursuer for alleged professional error or negligence in respect of the business charged in the account" (Gunn v. Marquis of Breadalbane, March 17, 1849, 11 D. 1046).

"A tender should always be put into process, because it makes it more clear and explicit when this is done. This is more peculiarly of importance in actions for slander, a description of case in which tenders are frequently made, and where it is important for the pursuer to have the apology implied by it put on record" (per Lord Cockburn in Imrie v. M' Whannel, Jan. 21, 1847, 9 D. 522). But effect will be given to a tender reduced to writing and made at the bar (see Imrie's case, supra).

A tender for the exact sum afterwards obtained by the verdict of the jury entitles the defender to expenses from the date when it should have been accepted (Shaw v. Edinburgh and Glasgow Railway Company, Nov. 28, 1863, 2 Macph. 142). Under the Lands Clauses Consolidation Act (8 Vict. cap. 19) it is provided that in inquiries made before juries for the purpose of ascertaining the amount of compensation due by the promoters of an undertaking to any individual, the promoters must pay all expenses, unless the sum awarded by the jury be the same or less than that already tendered by them, or unless the claimant for compensation fail to appear. In either of these events the claimant is liable in his own and in one half of the promoter's expenses.

Where a new trial is granted.—Where the Court grants a new trial, the question of the expenses already incurred is sometimes reserved until the result of the second trial is known. In the old Jury Court the rule was to grant the new trial without payment of expenses, where the ground for setting aside the verdict was mistake in law. "It appears to me a principle of sound sense that when a judge mistakes the law, or when he states the law and the jury do not find according to the direction, that a new trial ought to be granted without costs, and that they should abide the event of the next trial, as the party must be held to have known that he was retaining a verdict contrary to law" (per Lord C. C. Adam in Scruton v. Catto, May 31, 1822, 3 Murray, 65). On the other hand, in granting a new trial upon the ground that the verdict was con

trary to evidence, or upon any technical objection, payment of the previous expenses was ordered (Robertson v. Barclay, July 7, 1828, 4 Murray, 524; Smith v. Knowles, May 19, 1824, 3 Murray, 424). In a recent case, " payment of expenses of the first trial, so far as not available in the next trial, was made the condition of granting a new trial, and as they were not paid, the order for a new trial was subsequently discharged" (Neville v. Clark, Feb. 6, 1864, 2 Macph. 625). But there is no fixed rule, and the Court will not hold themselves entitled in any case to grant a new trial without insisting upon payment of previous expenses1 (Dargie v. Magistrates of Forfar, June 23, 1857, 19 D. 878; Graham v. Western Bank, March 8, 1865, 3 Macph. 617). The expenses incurred in the discussion for the new trial will be given to the successful party. But where a defender maintained a rule on two grounds, on one of which he was successful and on the other unsuccessful, expenses were given to neither party (Miller v. Hunter, Nov. 24, 1865, 4 Macph. 28).

Where a party is successful upon a second trial, it is not now usual to give him the expenses of the first in which he failed, unless the verdict obtained at the first trial has been set aside upon a bill of exceptions to the judge's directions. At one time a different rule seems to have prevailed (Neilson v. Leighton, Feb. 21, 1844, 6 D. 728). In a recent case Lord Deas remarked, "We have of late held it not imperative to give the expenses of the first trial as a condition of the second; and when the party who loses the first trial gains the second, it is undoubtedly within the discretion of the Court to give him the expenses of both. But at the same time I agree that the party claiming such expenses must make out a special and exceptional case. . . . When a party loses the first trial and gains the second, the presumption rather is that he lost the first trial by some fault or negligence or mispleading of his own.' Lord Colonsay in the same case observed, regarding the award of the expenses of the first trial, " I can conceive cases in which it would be right to do so. For example, if the party gaining the first trial had used a false document, knowing it to be false, or if the verdict on the first trial had been obtained by false means, not merely by the jury misweighing the evidence" (Lindsay v. Shield, Jan. 31, 1863, 1 Macph. 380).2

The rule laid down in this case has been recognised as binding in subsequent decisions. But it has been departed from on more than one occasion. In the case of Lyell v. Gardyne (6 Macph. 42), which was a right of way case, the defender, who won the second trial, obtained the expenses of the first, because the Court were of opinion that the pursuer had, under the circumstances, not litigated

1 In the early cases, payment of previous expenses was the almost invariable practice, the English rule having been adopted.

2 In this case both parties asked for the expenses of the first trial, which were given to neither.

in good faith, having claimed a public in place of a servitude road. In an action for slander, the defenders obtained the expenses of the first trial in the following circumstances. The pursuers had averred malice on the record but had not put it in issues. In the course of the trial they led evidence in proof of malice, it having turned out that the defenders were in a privileged position, which the Court afterwards, upon a bill of exceptions, decided that they were entitled to do. But it was held that as until that time there was no authoritative decision upon the point, the defenders were to be excused in not being prepared to meet a case of malice in the first trial, and having successfully done so in the second, that they were entitled to the expenses of both (M Bride v. Dalzell, May 22, 1869, 7 Macph. 790).1 The most recent case upon this point is that of Stewart v. The Caledonian Railway Company (Feb. 4, 1870, 8 Macph. 486). The pursuer having only obtained nominal damages for serious personal injury, the verdict was set aside as self-contradictory and inconsistent with the evidence, and upon a new trial substantial damages were awarded. The Court by a majority held that he was not entitled to the expenses of the first trial. This case may be held as having decided that if the fault lies entirely with the jury the expenses will never be awarded, although the Court may be of opinion that the verdict was a most unjust one.

The exceptions to the general rule, which have been already stated in dealing with ordinary actions, of course apply to Jury trials. Lord Deas, in the case of Stewart, observed, " This question of expenses is always a question of equity. There is nothing so much left in the hands of the Court to be dealt with according to equitable principles; and although there were certain rules recognised at the first introduction of Jury Trial into this country, upon the footing of shewing respect for every verdict of a jury, the Court gradually found that these rules could not with justice be adhered to, and in modern practice they have not been so."

W. G. S. M.

OUTLINE OF THE SUPREME COURT OF JUDICATURE ACT 1873-Concluded.

PART IV.-TRIAL AND PROCEDURE.

THIS is one of the most important parts of the Act, introducing as it does a new system of pleading, and providing for the establishment of district registries, through which all causes may be prepared for trial in the country, except where the direction of the Court is needed before trial.

See

1 There were other circumstances which influenced the Court in this case. opinion of the Lord President in the case of Stewart v. The Caledonian Railway Company.

In Scotland we hear a good deal of the expense and abuse of arbitration in all departments of commercial law, not to speak of the Railway and Public Works arbitrations, which are mere contrivances for filling the pockets of lawyers, engineers, and witnesses, at the expense of shareholders, but which need not be considered here. In England, however, the abuse in question, and the exactions of professional arbitrators and their train, has been carried much further than here; and it was to be expected that an Act intended to facilitate and cheapen litigation should make some change in this matter. Hitherto the judges have had power to refer causes to the Masters of their Courts, but the numerous duties of these officials have prevented this power from being so useful as it might have been. It is now provided that "there shall be attached to the Supreme Court permanent officers, to be called Official Referees, for the trial of such questions as shall under the provisions of the Act be directed to be tried by such referees. The number and the qualifications of the persons to be so appointed from time to time, and the tenure of their offices, shall be determined by the Lord Chancellor, with the concurrence of the presidents of the divisions of the High Court of Justice, or a majority of them (of which majority the Lord Chief Justice of England shall be one), and with the sanction of the Treasury" (sec. 83). They are to perform their duties at the places appointed by the High Court or Court of Appeal.

Subject to any rules of Court, and to such right as may now exist to have particular cases submitted to the verdict of a jury, any question arising in any cause or matter (other than a criminal proceeding by the Crown) may be referred for inquiry and report to any Official or Special Referee, whose report may be adopted wholly or partially by the Court, and may (if so adopted) be enforced as a judgment by the Court (sec. 56). The limited power to refer is enlarged by the following section (sec. 57), in reference to certain matters. It gives power to refer any question of fact or of account by consent of the parties, and enacts that in any cause requiring any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot conveniently be made before a jury, or conducted by the Court through its other ordinary officers, the Court may, at any time, and without the consent of the parties, order any question or issue of fact to be tried either before an Official Referee or before a Special Referee, with equal powers, to be agreed on between the parties. Trials before referees are to be conducted as prescribed by rules of Court. The mode of trial is partly provided for by the rules (34 and 35) in the Schedule attached to the Act, one provision of which is that the referee shall proceed with the trial in open Court, de die in diem, as in actions tried by a jury. These provisions give the Courts the power to enforce references in causes which can only be satisfactorily settled in that way, and will pro

bably be found advantageous in instituting Arbitration Courts sitting continuously. Those who know the proceedings in arbitrations, both in England and Scotland, tell us that frequent and unnecessary adjournments now take place for the convenience, not of the parties, or as a rule of their attorneys, but of the arbitrator and counsel concerned.

The power of reference given to the Courts by the two sections (secs. 56 and 57) relates to distinct matters. The former section gives power to the Court to refer a cause for the purpose of inquiry and report by the referee, but not for final decision; for instance, if in the course of any cause a question arises as to the condition of any place or thing, the Court may refer the question to a referee, whose report will guide the Court in its decision; a ship may be damaged in collision, and it may be important to ascertain in what direction the blow was struck by an inspection of the ship itself; this would be a proper question to be decided by the report of an official referee. Again, after the issue of fact has been decided, the amount of damages may often be better ascertained by a referee than a jury. Section 57 provides for cases where it is expedient that the whole question should be decided by arbitration, in which the sole question at issue between the parties is one of amount, or involves questions as to the construction of machinery, the boundaries of property, or such like matters.

The report of a referee on any question of fact, such report being made on a reference of either the whole or a portion of the cause, will be equivalent, unless set aside by the Court, to the verdict of a jury (sec. 58). Instead therefore of the arbitrator's award being final, if in regular form, the report of the referee will be subject to revision by the Court, and if any palpable mistakes have arisen they may be corrected. This system of reference has long been in existence in the High Court of Admiralty, where questions of amount are not decided by the Court itself, but are referred to the registrar of the Court, assisted by merchants, an appeal lying to the Court by way of objection to the registrar's report. The powers and rules relating to arbitration and proceedings before arbitrators. under the Common Law Procedure Act 1854 remain as before. The Act does not take away the power of referring any cause to the final arbitration of any person selected by the parties, and protects the rights of parties so referring matters in difference out of Court. Awards may still be made rules of Court, and be enforced. Under the system of official referees, who will in reporting to the Court show their reasons for their decisions, any person desiring to have his cause finally settled by an arbitrator may still do so by referring it so that the arbitrator's award shall be final, and not capable of review by the Court.

To the mass of the legal profession the most interesting part of the Act is that which provides for the establishment of District Registries. It proceeds on the preamble (sec. 60) that " it is expedi