upon which they respectively succeeded. Where there CHAP. XIV. was a reference of an action for a debt and a counterclaim for debt, and the award found a balance of 971. due to the defendant on the counterclaim, the "event" was held to be in favour of the defendant, who was entitled to the general costs of the action, though the plaintiff was entitled to the costs of the issues found in his favour. (Lund v. Campbell, 14 Q. B. D. 821; 54 L. J., Q. B. 281.) Where the costs of the reference are "to abide the event" it means the event with its legal consequence, having regard to the operation of the 116th section of the County Courts Act, 1888 (51 & 52 Vict. c. 43). To what affected by County extent costs Courts Act, 51 & 52 Vict. contract. By that Act it is provided, with respect to any action c. 43, s. 116. brought in the High Court which could have been commenced in a county court, that if the action is founded on Actions on contract, and the plaintiff recovers a less sum than 201., he shall not be entitled to any costs of the action, and if he shall recover a sum of 201. or upwards, but less than 501., he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court; and if, the action being founded on tort, the plaintiff shall recover a sum less on tort. than 10l., he shall not be entitled to any costs of the action; and if he shall recover a sum of 101. or upwards, but less than 201., he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in the county court; unless in any such action, whether on contract or tort, a judge of the High Court certifies that there was sufficient reason for bringing the action in that court, or unless the High Court, or a judge thereof at chambers, shall by order allow costs. Power of In connection with the section is to be read R. S. C. Order LXV., r. 12, which provides that, "In actions founded on contract, in which the plaintiff recovers by the Act to court notwithstanding CHAP. XIV. allow High Court costs. Like power of arbitrator. Act applies to amount recovered under an award. judgment or otherwise a sum (exclusive of costs) not exceeding 501., he shall be entitled to no more costs than he would have been entitled to had he brought his action in a county court, unless the court or a judge otherwise orders." This enables a judge at chambers, where an action of contract has been referred to arbitration, by an order by consent providing that the costs of the action shall abide the event of the award, and the sum awarded does not exceed 501., to order that the costs shall be taxed on the High Court scale. (Hyde v. Beardsley, 18 Q. B. D. 244; 56 L. J., Q. B. 81.) When the whole of an action is referred without any other matters, an arbitrator, subject to any directions in the order of reference, " may exercise the same discretion as to costs as the court or a judge could have exercised." (Order XXXVI., rr. 55b and 55c.) A plaintiff "recovers" within the meaning of the section, as well, when the action is determined by an arbitrator, as when it is determined by trial in the ordinary course. So that when an action is referred upon the terms that the costs shall abide the event, the plaintiff is only entitled to the same costs of the action as if the action had been determined by a verdict for the same amount as that found by the arbitrator. (Cowell v. Amman Colliery Co., 34 L. J., Q. B. 161; 6 B. & S. 333; Fergusson v. Darison, 51 L. J., Q. B. 267; 8 Q. B. D. 470; Smith v. Edge, 33 L. J., Ex. 9; 2 H. & C. 659.) The rule equally applies when there has been a verdict by consent, subject to a reference (Smith v. Edge, supra), and when the reference is after issue but before trial. (Cowell v. Amman Colliery Co., supra; Fergusson v. Darison, supra.) Where an action of contract and a counterclaim were referred, costs of the action to abide the event, and by the award the plaintiffs were awarded less than 201., whilst the defendant was awarded 631. on his counter- CHAP. XIV. claim, it was held that the plaintiffs were not entitled to the costs of the issues on which they had succeeded. (Ahrbecker v. Frost, 17 Q. B. D. 606; 55 L. J., Q. B. 477.) Where an action and other matters in difference were referred, costs of the action to abide the award, and the arbitrator awarded 401. in respect of matters in the action and 14l. in respect of matters outside it, it was held that, having recovered less than 50l. in the action, the plaintiff was only entitled to county court costs. (Emmett v. Heyes, 36 W. R. 237.) 66 recovered" when claim set-off. If the plaintiff's claim is established for a sum suffi- What "sum cient to entitle him to superior court costs, but the defendant prove a set-off which reduces the balance to reduced by less than sufficient to entitle him to such costs, the plaintiff only recovers" the balance within the meaning of the Act, and is not entitled to costs without a certificate. (Ashcroft v. Foulkes, 25 L. J., C. P. 202; 18 C. B. 261; Beard v. Perry, 31 L. J., Q. B. 180; 2 B. & S. 493.) A counterclaim which is in the nature of a cross action is not upon the same footing as a set-off, and therefore where a claim and counterclaim are referred, costs of the action to abide the event, if the plaintiff establishes his claim for an amount sufficient to entitle him to superior court costs, although the balance for which he obtains an award may be reduced to less than that amount by the counterclaim, he is not deprived of his costs. (Stooke v. Taylor, 49 L. J., Q. B. 857; 5 Q. B. D. 579; Cole v. Firth, 4 Ex. D. 301; 40 L. T. 851; Neale v. Clarke, 4 Ex. D. 286; 41 L. T. 438; Potter v. Chambers, 48 L. J., C. P. 274; 4 C. P. D. 457.) The Act and rule do not apply to a defendant so as to deprive him of his costs when he recovers less than the minimum amount on his counterclaim. (Blake v. Appleyard, 47 L. J., Ex. 407; 3 Ex. D. 195; Chatfield When by counterclaim. CHAP. XIV. Action on contract or tort, how determined. County Costs of several causes abiding event as to each. v. Sedgwick, 4 C. P. D. 459; 27 W. R. 790; and see Davidson v. Gray, 40 L. T. 192; 5 Ex. D. 189 n.) 66 To determine whether an action is "founded on contract or founded on tort" the substance of the action on the face of the statement of claim and defence is to be looked at, not the mere form of the pleading. (Bryant v. Herbert, 3 C. P. D. 339; 47 L. J., C. P. 670.) Thus, detinue is an action founded on tort (ib.), while a claim against common carriers for goods damaged through their negligence while in transitu is founded on contract. (Fleming v. Manchester, Sheffield, &c. Rail. Co., 4 Q. B. D. 81; 39 L. T. 555; and see Baylis v. Lintott, 42 L. J., C. P. 119; L. R., 8 C. P. 354.) But if the ground of action is a wrongful act by the carriers after the contract to carry and deliver has been put an end to, the action is in respect of a tort. (Pontifex v. Midland Rail. Co., 3 Q. B. D. 23; 37 L. T. 403.) When an action is referred, "the costs of the cause to abide the event of the award, and the costs of the reference to be in the discretion of the arbitrator," the County Courts Act, 1888, will not affect the arbitrator's right to award the costs of the reference, whatever damages he may give. (Forshaw v. De Wette, L. R., 6 Ex. 200; 40 L. J., Ex. 153; Galatti v. Wakefield, 48 L. J., Ex. 70; 4 Ex. D. 219.) And the plaintiff to whom they are awarded is entitled to have them taxed on the High Court scale whatever the sum awarded in the action. (Street v. Street [1900] 2 Q. B. 57.) Where several actions were referred, "the costs of the several actions and of all matters and things relating thereto to abide the event of the award," that was held to mean that the costs in each action were to abide the event as to that action. (Jones v. Powell, 6 Dow. 483.) But where an action at law and a suit in equity were referred, and the costs were to abide the event, it was held that the event meant the ultimate and general event, and not that the costs of each suit should abide CHAP. XIV. the event as regarded the suit. (Reeves v. Macgregor, 9 A. & E. 576; 1 P. & D. 372.) costs allowed by particular statutes. Generally, as before remarked, a party is entitled under When sucan award in his favour to the same costs as on a verdict cessful party entitled to and judgment to the same effect; but the award does not of itself entitle the party in whose favour it is made to costs allowed by particular statutes on verdict, nonsuit, or other specified modes of termination of the suit unless the arbitrator has and exercises the power of ordering the suit to be terminated in that particular mode. (Holder v. Raith, 4 N. & M. 466.) Therefore it was held that a defendant in replevin was not entitled to double costs under 11 Geo. 2, c. 19, s. 22, on an award in his favour, in pursuance of a reference before issued joined (Gurney v. Buller, 1 B. & A. 670; Barnard v. Moss, 1 H. Bl. 107), and that the court could not award costs under 43 Geo. 3, c. 46, s. 3, to a defendant, where the plaintiff on a reference before issue joined had been awarded an amount less than that for which he had arrested the defendant. (Holder v. Raith, supra.) In Carr v. Dougherty (67 L. J., Q. B. 371; 14 Times L. R. 237), Phillimore, J., held that when an action is referred and the award makes no mention of costs, the successful party is not deprived of them, because even if a judge has no jurisdiction to deal with them, they follow the event by virtue of section 15 (2) of the Arbitration Act, 1889, which makes the award equivalent to the verdict of a jury. Effect of omission of arbitrator to deal with costs of action. costs, how When an arbitrator has power to give a certificate for Certificate for costs, he must do so in his award, for his power of given. certifying, like his other powers, is at an end when his award is made. (Bedwell v. Wood, 46 L. J., Q. B. 725; 2 Q. B. D. 627; Spain v. Cadell, 8 M. & W. 129.) An arbitrator to whom an action is referred, with all the powers of a judge to certify that the action was proper to |