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genuineness of pictures. (Leigh v. Brooks, 5 Ch. D. 592; CHAP. XIX. and see Ormerod v. Todmorden Mill Co., supra.)

Mining disputes are not cases which necessarily involve Local investilocal investigation. (Case v. Willis, 8 Times L. R. 677.)

gation.

The expression "matters of account" will receive a "Matters of liberal construction. (Rowcliffe v. Leigh, 3 Ch. D. 292; account." 24 W. R. 782.) The questions of account intended to be dealt with are those which could formerly be referred to a master under section 3 of the C. L. P. Act, 1854. An action on a builder's bill, consisting of many items, each of which it appeared probable from the pleadings would be separately disputed, was held to involve matters of account which could be referred. (Ward v. Pilley, 5 Q. B. D. 427; 49 L. J., Q. B. 705.) An action for money had and received, to which there was a plea of an existing partnership, was held to give jurisdiction to refer. (Goodwin v. Budden, 42 L. T. 536.) In an earlier case, a claim in an administration suit consisting of twenty-four items, in many or perhaps all of which it appeared questions as to price and warranty, &c., might arise, was referred. (Rowcliffe v. Leigh, 3 Ch. D. 292; 24 W. R. 782.)

When there is a question of account which can be referred compulsorily under section 14 of the Arbitration Act, 1899, the court has power therewith to order the whole action to be referred (Hurlbatt v. Barnett [1893] 1 Q. B. 77; 62 L. J., Q. B. 1; and see Knight v. Coales, 19 Q. B. D. 296; 56 L. J., Q. B. 486; Ward v. Pilley, 49 L. J., Q. B. 705; 5 Q. B. D. 427; Martin v. Fyfe, 50 L. T. 72), even when those issues involve questions of fraud affecting the character and reputation of the parties (Hoch v. Boor, 49 L. J., C. P. 665; 43 L. T. 425; Sacker v. Ragozine, 44 L. T. 308); though, as a general rule, a man is entitled to have a charge of fraud tried in open court, and such issues ought not to be referred, unless so mixed up with matters of account as to be incapable of being tried.

Jurisdiction
to refer some,
involves right.
to refer all

issues.

CHAP. XIX. separately. (Leigh v. Brooks, 5 Ch. D. 592; 46 L. J., Ch. 344; Hoch v. Boor, supra; Russell v. Harris, 65 L. T. 752; Dimmock v. Randall, 5 Times L. R. 358.)

Reference though preliminary question as to liability.

Power of referee over costs.

Issues to be found separately.

Directing judgment.

Effect of referee's report.

Where any part of the dispute in a cause or matter relates to a matter of account the cause or matter may be compulsorily referred, although in certain events it may become unnecessary to determine the matter of account. (Hurlbatt v. Barnett [1893] 1 Q. B. 77; 62 L. J., Q. B. 1.) But in such a case the court in the exercise of its discretion ought to see that the dispute as to matter of account is a substantial part of the dispute between the parties. (Ib.; Knight v. Coales, 19 Q. B. D.

296; 56 L. J., Q. B. 486.)

An order of reference may be made on such terms as to costs as the authority making the order thinks just. (Arbitration Act, 1889, s. 20.) In the absence of any provision in the order of reference the referee has the same power over costs as a judge. (Order XXXVI. r. 55b.)

Where more issues than one are referred for trial, and the costs abide the event, the referee ought to find the issues separately, to enable the taxation of costs to follow the event. (Ellis v. De Silva, 50 L. J., Q. B. 328; 6 Q. B. D. 521; Myers v. Defries, 49 L. J., Ex. 266; 5 Ex. D. 180; Stooke v. Taylor, 5 Q. B. D. 569.) The court ordering judgment to be entered in accordance with the report of a referee is not bound to give any direction to the taxing master as to the costs. (Rowcliffe v. Leigh, 26 W. R. 729.)

By the R. S. C. Order XXXVI. r. 50, it is provided that, subject to any order to be made by the court or a judge, a 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. rr. 2 and 6A, make it compulsory upon him after trial of the action to direct judgment.

The report of an official or special referee under a reference for trial (see Sykes v. Brook, 29 W. R. 821),

shall, unless set aside by the court, be equivalent to the CHAP. XIX. verdict of a jury. (Arbitration Act, 1889, s. 15 (2).) This means it may be enforced by execution in the same way as a verdict. No appeal lies from his order, as to costs except by his leave. (Minister v. Apperly [1902] 1 K. B. 643.) And if the report is silent as to the costs they follow the event, as in the case of a verdict. (Carr v. Dougherty, 67 L. J., Q. B. 371.)

In signing judgment upon the award of a special Judgment referee the original award directing judgment must be pro- upon the

duced. When the trial is before an official referee an office copy of his report directing judgment must be produced, the original being previously filed at the filing department. A copy of the pleadings must also be filed, and if the time for judgment dates from service of a copy of the report, an affidavit of such service is also required to be filed. (Annual Practice [1903] 1038, 28A.)

report.

a report to a referee.

The court may remit a cause or matter referred, or Sending back any part thereof, for re-trial or further consideration, to the same or any other referee. (Order XXXVI. r. 52.) And the proper way to question a report before judgment Mode of has been entered, is for the unsuccessful party to move the application. court, on notice of motion, to set aside the report and remit the action to the referee. (Dyke v. Cannell, 11 Q. B. D. 180; 31 W. R. 747.) This may be done before judgment is entered, but not after. (Serle v. Fardell, 44

Ch. D. 299; 62 L. T. 359.)

The notice of motion to remit a case to an official Time for referee must be given within the time limited for notices application. of motion for a new trial. (R. S. C. Order XXXIX. rr. 3 and 4; Forrest v. Todd, 76 L. T. 500; Gower v. Tobitt, 39 W. R. 193.)

court.

The application in the King's Bench Division is to To what the divisional court. (Cooke v. Newcastle, &c. Water Co., 10 Q. B. D. 332; 52 L. J., Q. B. 337; Wenlock v. River Dee Co., 19 Q. B. D. 155, 160; Gower v. Tobitt, 39

CHAP. XIX. W. R. 193.) In the Chancery Division the motion should be made to the judge to whom the action is assigned. (Wynne-Finch v. Chaytor, 72 L. J. Ch. 723; 89 L. T. 123; W. N. (1903) 139.) An appeal from the divisional court lies to the Court of Appeal without leave (Munday v. Norton [1892] 1 Q. B. 403; 66 L. T. 173), for references under section 14 of the Arbitration Act, 1889, are not to arbitration, as they contemplate a trial, not an award. (Ib.) And such motions are not appeals within the meaning of section 1, sub-section (5) of the Judicature Act, 1894. (Wynne-Finch v. Chaytor, supra; overruling Daglish v. Barton [1900] 1 Q. B. 284, to the contrary.)

Motion to set aside to be supported by affidavit.

Motion to set aside judgment.

Form of notice.

Although the report of a referee upon a trial is equivalent to the finding of a jury, a motion to set aside the report of a referee must be supported by affidavits, the statement of counsel as to what took place before the referee not being sufficient. (Stubbs v. Boyle, 25 W. R. 184; 2 Q. B. D. 124.)

A copy of the referee's notes may be produced.

"Where at a trial by a referee he has directed that any judgment be entered, any party may move to set aside such judgment, and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong: provided that, in the King's Bench Division, such motion shall be made to a divisional court." (Order XL. r. 6.) In the Chancery Division the application is to be made to the judge to whom the action is assigned. (Wynne-Finch v. Chaytor, supra.)

To prevent any objection to a notice of motion to remit being too late, on the ground that judgment is already entered, the notice should ask to set aside or vary the findings and report, and the judgment directed to be entered thereon. (See Proudfoot v. Hart, 25 Q. B. D. 42; 59 L. J., Q. B. 389.) It may also ask to have judgment entered for the applicant. (Clark v. Sonnenschein, 25 Q. B. D. 464; 59 L. J., Q. B. 561.)

ground of appeal against a report under

s. 14.

With regard to the findings of a referee in an action CHAP. XIX. sent to him for trial under section 14 of the Arbitration Nature and Act, 1889, the appeal against his report is in the same nature as an appeal from the finding of a judge when he tries without a jury (Clark v. Sonnenschein, 25 Q. B. D. 464), that is to say, the court must accept the finding of the referee unless they can set it aside according to the ordinary rules which would be applicable to the finding of a jury or to the finding of a judge trying a cause without a jury. It is open to appeal, therefore, whether improper evidence has been received by the referee, or whether the referee, in considering the facts, has, so to speak, misdirected himself. The court can set aside the finding of the referee, if it considers the finding is a finding against the evidence, in the same way that the court can set aside the finding of a jury when their finding is against the evidence. (Longman v. East, 3 C. P. D. 155, per Brett, L.J.; Miller v. Pilling, 9 Q. B. D. 736; Walker v. Bunkell, 52 L. J., Ch. 596, per Jessel, M.R.; and see The Lancaster, 32 W. R. 608.)

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