the further consideration of which has not been adjourned, it shall be lawful for any party by an eight days' notice of motion to apply to the court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for rehearing or further consideration to the same or any other referee." PART II. CH. VI. S. 7. Under sect. 56 of the Judicature Act and this rule "the Court. court" alone has power to deal with the report, and it was doubtful if "court" for this purpose included judge (0). It is now expressly provided that the report "may be adopted Court or wholly or partially by the court or a judge." By Order XXXVI. r. 55 c (1889), rules 48 to 55 of Order XXXVI., and rule 55 b, apply where any cause or matter, or any question or issue of fact therein, is referred to an officer of the court or to a special referee or arbitrator. A motion, under Order XL. r. 7, for judgment dismissing the action was held to be rightly made when the referee had reported against the plaintiff (p). In a recent case of a reference to a special referee under sect. 56 of the Judicature Act to report as to amount of damages, the referee was called upon to answer interrogatories by both parties, and to make a second report, in writing, judge. Rules to apply to arbitrator. to the judge. He was further called upon in the Court of Explanation Appeal to give a verbal explanation respecting the grounds by referee. of his findings, and ultimately the matter was remitted to him with directions from the court for a further report (9). If the referee is required to answer any question on his report, it is stated that, as he is in a quasi-judicial position, he need not be sworn (r). When the reference was under sect. 57 of the Judicature Reference for trial. Act, 1873, the referee was not merely to report, but to try and Judicature determine the questions and issues of fact and questions of Acts. account referred to him. He should not have set forth the evidence, nor stated his reasons, but should have found separately on each issue, so that the court might give the proper judgment on the findings (s); and the proper course (0) Cooke v. Newcastle, &c. Co., 10 Q. B. D. 332. (p) Larkin v. Lloyd, W. N. (1891) 71. (2) Rust v. Victoria Graving Dock Co., 36 Ch. D. 113. R. (r) Brodie v. Saillard, W. N. (1876) 116. (s) Miller v. Pilling, 51 L. J. Ch. D. 481, C. A.; Longman v. East, 3 C. P. D. 142. BB PART II. CH. VI. S. 7 Arbitration Report equivalent to ver dict. Not so in respect of appeals. Referee sub tion to court. Parties was for the party interested to move for judgment (t). Under this section it was not intended that mixed questions of fact and law should be decided by the official referee (u). Only questions of fact could be referred compulsorily, and not the whole action (x). Now, however, by sect. 14 of the Arbitration Act, 1889 (y), which is set out p. 87, and substituted practically for sect. 57 of the Judicature Act, 1873, now repealed, the whole cause can be referred whenever the court can compel a reference. The Arbitration Act, 1889, s. 15 (2), dealing with references under an order of court, or of a judge, provides that the report or award of any official or special referee or arbitrator shall be equivalent to the verdict of a jury. This does not mean that an award of an arbitrator appointed voluntarily may be set aside on the same grounds that a verdict may be, but the expression refers rather to the mode of enforcement. The court, therefore, on a motion to set aside the award, will not investigate the evidence afresh to see whether the arbitrator's decision on a voluntary reference is according to law (≈). Moreover, the award of an official referee, though stated to be equivalent to the verdict of a jury, is not so for the purposes of appeal under "Finlay's Act" (52 & 53 Vict. c. 44, s. 5), which provides that appeals in cases tried by a jury shall go to the Court of Appeal (a). If the referee feels a difficulty as to the making his report, mitting ques- Ord. XXXVI. r. 52, enables him to submit any question for the decision of the court. The same rule enables the court, when the report is made, if they feel any difficulty, to require explanations or reasons from the referee. These are as likely to be required when no preliminary questions are raised as when they are. In such a case the court may, on motion by either party, require explanations from the referee, and may remit the matter to the same or any other referee, or may questioning report. (t) Munro v. Rendall, W. N. (1878) 41; Walker v. Bunkell, 22 Ch. D. 722; Cooke v. Newcastle, &c. Co., 10 Q. B. D. 332. (u) Cardinall v. Cardinall, 25 Ch. D. 772. (x) Dawes v. Fountain, 3 T. L. R. 347. (y) 52 & 53 Vict. c. 49. (z) Darlington Wagon, &c. Co. v. Harding, (1891) 1 Q. B. 245, S. C. 7 T. L. R. 20 and 106; S. C. 39 W. R. 167. (a) Glasbrook v. Owen, 7 Times L. R. 62; Gower v. Tobitt, W. N. (1891) 6. decide the question referred on the evidence taken before the referee with or without additional evidence. The latter part of the rule does not deal with a difficulty felt by the referee, but by the court (b). PART II. CH. VI. S. 7 Where the referee or arbitrator has the cause referred to Referee may direct judghim, he may direct judgment to be entered under Ord. ment. XXXVI. r. 50; and he has the same discretion as to costs as the court or judge. (Ord. XXXVI. rr. 55 (b) and (c).) When the referee or arbitrator abstains from directing Motion when judgment, either party may move for judgment. (Ord. XL. abstains. rr. 2 and 6 (a).) arbitrator An appeal from the official referee's report may be made Time for under Ord. XXXVI. r. 52, at any time before judgment (c); official appeal from and on an application under this rule the Divisional Court referee. can set aside a judgment entered for one party by direction Reversing judgment. of the referee, and enter judgment for the other when they differ from the referee on the findings (d). Division. In the Chancery Division an appeal against the findings of Chancery a referee and the judgment entered thereon is to the Court of Appeal, and not to the court of first instance (e). ence. A power of appeal in compulsory references is expressly Appeal provided in Ord. LIX. r. 3, which says that any party to a made on comagainst award compulsory reference may appeal upon any question of law, pulsory refer and that the Divisional Court-to whom the appeal must be made-may set aside the award on any ground on which the court might set aside the verdict of a jury. It is open to appeal, therefore, whether improper evidence has been received by the official referee, or whether, in considering the facts, he has, so to speak, misdirected himself (ƒ). In other words, the decision of an official referee is subject to the same rules as to appeal as the decision of a judge trying a case without a jury (g); and the court can set aside the finding of the official referee if they consider that the finding is against the evidence. (b) Dyke v. Cannell, 11 Q. B. D. 182. (c) Dyke v. Cannell, 11 Q. B. D. 180; discussing Sullivan v. Rivington, 28 W. R. 372; Bedborough . Army and Navy Hotel, 53 L. J. Ch. 658. (d) Clark v. Sonnenschein, 25 Q. B. D. 226 and 464, S. C. 59 L. J. Q. B. D. 561. (e) Serle v. Fardell, 44 Ch. D. 299; Bannister v. Macdonald, W. N. (1890) 50. (f) Longman v. East, 3 C. P. D. 142. (g) Per Lord Esher, M. R., in Clark v. Sonnenschein, 25 Q. B. D. 464. PART II. On a motion to set aside or vary the judgment in a case CH. VI. S. 7. tried by an official referee, on the ground that the decision was against the evidence, it was said, in the Queen's Bench Division, that the counsel for a party could not move on his own statement of what happened, but must produce an affidavit or some other evidence of what took place at the trial (). Motion to set aside judg ment as wrongly entered. Case remitted after judgment. Appeal against order by referee. Referee re fusing to It may be advisable to procure a copy of the referee's notes, if possible. When the referee or arbitrator has directed any judg ment to be entered, any party may move to set it aside on the ground that, upon the findings as entered, the judgment so directed is wrong: Provided that in the Queen's Bench Division such motion shall be made to a Divisional Court. (Ord. XL. rr. 6 and 6 (a) 1883.) A case in which the official referee made a statement as to the basis on which he had assessed damages for failure to repair, which basis was held to be wrong, was treated as coming within this rule, and the Court of Appeal affirmed the order of the Queen's Bench Division, remitting the case to the referee after judgment entered (i). On one occasion an appeal from a decision of an official referee, who was held to have power to add a third party, refusing to allow such third party to put in a defence in the allow defence, action, was heard by the Divisional Court (k). But where a referee had refused to adjourn the hearing, the court intimated that the matter should be dealt with by the judge in chambers (!). Referee refusing to adjourn. (h) Stubbs v. Boyle, 2 Q. B. D. 124, S. C. 46 L. J. Q. B. 136. (i) Proudfoot v. Hart, 25 Q. B. D. 42. (k) Byrne v. Brown, 37 W. R. 592, S. Č. 22 Q. B. D. 657. (1) Richard v. Talbot, 38 W. R. 478. CHAPTER VII. THE DUTY OF THE ARBITRATOR IN AWARDING AS TO COSTS. PART II. CH. VII. As the question of costs necessarily arises on every reference, it has been thought fit to devote a separate chapter to the consideration of the duty of the arbitrator in respect of costs Scope and under the various forms of submissions. The first section points out what power he has over costs, and how he may exercise it, and the effect of awarding payment of the costs of the cause. The second section considers what are the arbitrator's powers and duty, when costs abide the event of the award; and examines what event of the award is meant in respective instances, whether the separate event of the award as to a particular matter, or the general event of the whole award. Section three shows the convenience of giving the arbitrator power to certify for costs, and specifies the proper mode of executing such a power. contents of the seventh chapter. SECTION I OF THE ARBITRATOR'S POWER AND DUTY IN AWARDING COSTS. 1. What are costs of the cause, reference, and award.]— It may be of use to note the distinction between costs of the cause, costs of the reference, and costs of the award. PART II. CH. VII. 8. 1. What costs are costs in And first as to costs of the cause. When an award, and the cause. not merely a certificate, is to be made, the costs of the cause comprise the costs incurred in the cause up to the time of the submission, the costs of the order of reference, and of making it a rule of court, and the costs of ulterior proceedings in the |