CHAP. XVIII. v. Ives, 1 Atk. 64.) Thus in Wood v. Griffith (1 Swanst. 43), the court enforced specific performance of an award which ordered the sale of an estate under circumstances which greatly depreciated its value. But the rule that the court will not consider the reasonableness of an award cannot be laid down as a universal one. (Parken v. Whitby, T. & R. 366; Nickels v. Hancock, 7 De G., M. & G. 300, 315.) The court will not grant specific performance unless it can give full relief to both parties. (Blackett v. Bates, L. R., 1 Ch. 117; 35 L. J., Ch. 324.) It seems that, even if an award be one of which specific performance might be enforced, a party could not, after having taken ineffectual proceedings to set it aside, enforce specific performance. (Blackett v. Bates, supra.) But in one case it was held no ground for refusing a decree for specific performance, that the Court of King's Bench had granted an attachment against the defendant for non-performance of the award, in refusing to execute an authority to sell an estate, and had discharged the attachment on receiving their officer's report that the defendant had not been guilty of a contempt. (Wood v. Griffith, 1 Swanst. 43.)

Effect of other proceedings.

Illegality and laches.

The specific performance of an award which directs the doing of illegal acts will not be enforced. (Fry, 226; Walters v. Morgan, 2 Cox, 369.) Nor will the court grant specific performance when a long time has elapsed without any attempt to enforce the award. (Eads v. Williams, 24 L. J., Ch. 531.)

CHAPTER XIX.

REFERENCES TO OFFICIAL AND SPECIAL REFEREES.

SECT. 1.-The Position and Powers of Referees Generally.

THE Arbitration Act, 1889, provides for two kinds of CHAP. XIX. references to official and special referees, viz.-(1) References of Reference for inquiry and report (s. 13); (2) Reference two kinds. for trial (s. 14). We will deal with them separately

later. Such references are not references to “arbitration." (Munday v. Norton, 66 L. T. 173; [1892] 1 Q. B. 403.)

Official and special referees perform functions analogous to those of the masters under the C. L. P. Act, 1854, with the addition of such special powers as are conferred on them by statute.

referees.

The official referees are permanent officers attached Official to the Supreme Court, and appointed by the Lord Chancellor.

referee.

A special referee is a person appointed to deal with Special the particular matter referred. When the reference is for inquiry under the Arbitration Act, 1889, s. 13, he is appointed by the judge or the parties. When the reference is for trial under section 14, he must be agreed upon by the parties. (London, &c. Insurance Co. v. British America Assurance Co., 52 L. T. 385.)

All referees powers and

have same

Official and special referees have the same powers and duties, and proceed in the same manner in all respects, and are to be deemed officers of the court. (Arbitration duties. Act, 1889, s. 15 (1).)

The R. S. C. Order XXXVI. r. 7, enables the court or

CHAP. XIX.

Discretionary power to refer

controlled.

a judge at any time to order any cause, matter, or issue to be tried by an official referee or special referee with or without assessors.

The discretion of the judge or a court in ordering or not generally refusing a compulsory reference will not generally be interfered with on appeal (Hoch v. Boor, 49 L. J., C. P. 665; 43 L. T. 425, per Thesiger, L.J.; Ward v. Pilley, 49 L. J., Q. B. 705; 5 Q. B. D. 427, per Baggallay, L.J.; Knight v. Coales, 19 Q. B. D. 296; 56 L. J., Q. B. 486), except where it clearly appears that the discretion has been wrongly exercised and injustice done thereby. (Ormerod v. Todmorden Mill Co., 8 Q. B. D. 664; 51 L. J., Q. B. 348; 30 W. R. 805; Case v. Willis, 8 Times L. R. 610.)

Order of reference should be clear.

Reference

stage of

proceedings.

An order of reference should point out whether the reference is under section 13, for report, or under section 14, for trial. If it is under section 14 it should say whether the whole action or only certain issues are referred, and if only certain issues, which. (See Longman v. East, 38 L. T. 15, per Brett, L.J.) The forms given in the rules should be strictly followed. (Wenlock v. River Dee Co., 19 Q. B. D. 155.)

A reference, either for report or trial, may be directed may be at any at any stage of the proceedings. In Dunkirk Colliery Co. v. Lever (L. R., 9 Ch. D. 20; 39 L. T. 239), there was a claim by the plaintiffs for damages by reason of the nonperformance by the defendants of a contract; at the trial of the action the M. R. held that the plaintiffs were entitled to relief, and ordered that the defendant should pay them their costs of the action, and that it should be referred to a special referee to inquire and report as to damages; and that after he had made his report, such further order should be made by the judge in chambers with respect thereto, and the subsequent costs, as should be just. In Sykes v. Brook (W. N. (1880) 187; 29 W. R. 821), the parties having agreed to refer certain questions

for inquiry, Fry, J., ordered that the agreed matters CHAP. XIX. should be referred, and that the action should stand until the report should be made, with liberty to apply.

Upon an appeal against a compulsory order of refer- Appeal. ence under the C. L. P. Act, 1854, the court varied the order by directing a reference to an official referee. (Martin v. Fyfe, 50 L. T. 72.) And where the reversal by the Court of Appeal of a judgment of the court below necessitated the taking of very difficult accounts, the court directed them to go to the official referee instead of to the Master. (Rochefoucauld v. Boustead [1897] 1 Ch. 196.)

Lord Chan

cellor.

The Lord Chancellor by order 4th February, 1889, Direction of directed that all references of causes other than those involving questions of costs or questions of retainer, and all references to assess damage, except those under writ of inquiry, should in future be made to the official referees.

When in the Chancery Division a cause or matter is of transferred transferred from one judge to another for trial only, the action. judge to whom the cause or matter is transferred may direct that any further proceedings therein, before or after the hearing or trial thereof, shall be taken before an official or special referee. (R. S. C. Order XLIX. r. 2.)

An application for reference is usually made by summons, which may be heard in chambers either before a judge, master (Order LIV. r. 12a), or district registrar, and is generally supported by an affidavit of circumstances rendering the reference desirable.

Application

usually by

summons.

order of reference.

An appeal from a compulsory order of reference made Appeal from by a judge sitting at nisi prius or assizes must be brought direct to the Court of Appeal. (Hoch v. Boor, 49 L. J., C. P. 665; 43 L. T. 425.) An appeal from a like order made by a judge in chambers is to the divisional court. (Ib.)

Business referred to the official referees, not naming Distribution any one of them in particular, is distributed amongst among official

A.

Y

of business

referees.

CHAP. XIX. them in rotation by the clerk to the senior official referee. (R. S. C. Order XXXVI. r. 45.) Upon production to the rota clerk to the official referees, Room 191, Royal Courts of Justice, of the order, or a duplicate of it, he will indorse the name of the official referee to whom that business is referred. (R. 46.)

Reference to particular referee.

Application to proceed with

the reference.

Where referee may hold his sitting.

View.

Referee to sit

The court may refer any business to any one in particular of the referees (Order XXXVI. r. 45), and the parties may agree for a reference to a particular referee. (Arbitration Act, 1889, s. 3.) When the parties are agreed, it is usual to insert the name of the referee in the order. The clerk, in making distribution of the business amongst the official referees, will have regard to such references. (Order XXXVI. r. 47.)

An order of reference being obtained (and in case the reference is to an official referee, the name of the referee in rotation indorsed), the party having the conduct of the reference should apply to the referee to make an appointment for proceeding with the reference.

The appointment, when obtained, must be served upon. the other parties to the reference.

The referee may, subject to the order of the court or a judge, hold the trial at, or adjourn it to, any place which he may deem most convenient, and have any inspection, or view either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. (Order XXXVI. r. 48.) A referee, whether official or special, has power, subject to the control of the court, to give a peremptory appointment for the hearing of the reference, and in default of appearance by either party to proceed in his absence. (Wenlock v. River Dee Co., 53 L. J., Q. B. 208; 49 L. T. 617.)

The referee shall, unless otherwise directed by the de die in diem. court or a judge, proceed with the trial de die in diem in a similar manner as in actions tried with a jury.