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By the C. L. P. Act, 1854, s. 3, a judge may, when the matters in dispute are wholly or in part matters of mere account, refer the matter wholly or in part to an arbitrator appointed by the parties, or an officer of the court, upon such terms as to costs, or otherwise, as he shall think reasonable. This power is still in force, and is not affected by Rules, 1883, O. xxxvi. (see r. 10), nor by the further powers given by the J. Acts to order inquiries and trials before referees, as to which vide infra; Cruikshank v. Floating Swimming Baths Co., 1 C. P. D. 260; Lloyd v. Lewis, 2 Ex. D. 7, C. A. ; and as any judge or commissioner sitting at Nisi Prius constitutes a court of the High Court (J. Act, 1873, ss. 29, 30), the objection that the power could not be exercised at Nisi Prius (see Robson v. Lees, 6 H. & N. 258; 30 L. J., Ex. 235; Morgan v. Ainslie, 28 L. T., N. S. 120, H. T., 1873, B. C.) no longer applies. It has been recently decided that under this provision, if part only of the matter in dispute is matter of account, that part alone can be compulsorily referred. Clow v. Harper, 3 Ex. D. 198, C. A. But the practice was previously the other way. See Brown v. Emerson, 17 C. B. 361; 25 L. J., C. P. 104; see also Ward v. Pilley, 5 Q. B. D. 427, 429, per Bramwell, L.J. Sect. 6 gives similar power to a judge trying an action alone to refer matters of account, and to proceed to try, and dispose of, the other matters in question as if no reference had been made.

By the J. Act, 1873, s. 56, subject to any rules of court and the right existing to have particular cases tried by jury, "any question arising in any cause or matter" before the court may be referred by the judge before whom the matter" may be pending, for inquiry and report, to any official or special referee." By sect. 57, in any cause or matter before the "court in which all parties interested who are under no disability consent thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the court or a judge, conveniently be made before a jury or conducted by the court through its other ordinary officers, the court or a judge may at any time, on such terms as may be thought proper, order any question or issue of fact, or any question of account arising therein, to be tried either before an official referee," "or before a special referee to be agreed on between the parties; and any such special referee so agreed on shall have the same powers and duties and proceed in the same manner as an official referee. All such trials before referees shall be conducted in such manner as may be prescribed by rules of court, and, subject thereto, in such manner as the court or judge ordering the same shall direct." By Rules, 1883, O. xxxvi. rr. 46, 47, official referees take references in rotation, unless (r. 47), the court or a judge direct a reference to a particular official referee. As to procedure on trial under this Act before a referee, vide post, p. 261.

By Rules, 1883, O. xxxiii. r. 2, "the court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.'

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By J. Act, 1873, s. 66, a judge may order any accounts to be taken or inquiries made in the office of a district registrar for report to the court.

The distinction formerly existing between a reference under the C. L. P. 1854, and the J. Act, was that in the former case the arbitrator was constituted the sole judge of law and fact, and his award was final; under the J. Act, however, the report of the referee is made equivalent only to the verdict of a jury; all questions of law are therefore left open to either party to be taken before the court. See Cruikshank v. Floating Swimming Baths Co., and Lloyd v. Lewis, supra.

Trial before a Referee.

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This distinction is now modified by Rules, 1883, O. lix. r. 3, which provide that "where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. Such appeal shall be to a divisional court who shall have power to set aside the award or certificate, or to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate or all or any of the matters in dispute that may be just."

The effect of J. Act, 1873, ss. 56, 57, ante, p. 260, was much considered in Longman v. East, Pontifex v. Severn, and Mellin v. Monico, 3 C. P. D. 142, C. A. Those sections do not give the court power to refer the whole cause of action to a referee. S. CC. But, where in an action any of the issues are proper to be sent to be tried by an official referee, as involving matters of account, all the issues in the action may be sent for trial by him. Ward v. Pilley, 5 Q. B. D. 427, C. A.; Hoch v. Boor, 49 L. J., Q. B. 665, C. A. See further as to the construction of sect. 57, Ormerod v. Todmorden Mill Co., 8 Q. B. D. 674, 677, per Brett, L. J. The judge may, under sects. 56, 57, refer any scientific question in issue to an expert agreed on by the parties, for experiment and report to him. Badische Anilin, &c., Fabrik v. Levinstein, 24 Ch. D. 156.

Trial before a referee.] The J. Act, 1873, s. 57, ante, p. 260, enables a judge to order any question of fact or of account to be tried and heard before an official or special referee, or (sect. 56) to remit any matter to such referee for inquiry and report. By sect. 58, "in all cases of any reference to or trial by referees under this Act, the referees shall be deemed to be officers of the court, and shall have such authority for the purpose of such reference or trial as shall be prescribed by rules of court or (subject to such rules) by the court or judge ordering such reference or trial; and the report of any referee upon any question of fact on any such trial shall (unless set aside by the court) be equivalent to the verdict of a jury." Sect. 59 gives the court the same power over referees and their reports that the court had over arbitrators and their awards under the C. L. P. Act, 1854.

The rules in relation to such reference are as follows: By O. xxxvi., r. 48, "where any cause or matter, or any question in any cause or matter, is referred to a referee, he 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. He shall, unless otherwise directed by the court or a judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury." R. 49: "Subject to any order to be made by the court or judge ordering the same, evidence shall be taken at any trial. before a referee, and the attendance of witnesses may be enforced by sub pœna; and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge." R. 50: "Subject to any such order as last aforesaid, the referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge of the High Court," (r. 51) except the power to commit or enforce any order. R. 52: "The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the deci

sion of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct; and the court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee; or, the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court may direct." A referee has power to fix a peremptory appointment for the hearing. Wenlock v. R. Dee Co., 49 L. T. 617, MS. 1883. C.A. The power to direct judgment to be entered is new. See Pontifex v. Severn, 3 C. P. D. 142.

Power to compromise.] At common law the parties were bound by the "conduct" of the suit in court by their counsel or attorney: thus, in an action of trespass counsel might, in the absence of the parties, consent to the amount of damages, per Pollock, C. B., Thomas v. Harris, 27 L. J., Ex. 353; or to the withdrawal of a juror; Strauss v. Francis, L. R., 1 Q. B. 379. So, where the party was present and did not dissent from a compromise, he was bound thereby. Chambers v. Mason, 5 C. B., N. S. 59; 28 L. J., C. P. 10; Rumsey v. King, 33 L. T., N. S. 728, Q. B., H. S., 1876. And generally, an attorney acting bona fide, reasonably, and skilfully, and not having express instructions not to compromise, was justified in doing so. Per Campbell, C. J., Fray v. Voules, 1 Ê. & E. 839; 28 L. J., Q. B. 232; Chown v. Parrott, 14 C. B., N. S. 74; 32 L. J., C. P. 197; Prestwich v. Poley, 18 C. B., N. S. 806; 34 L. J., C. P. 189. Where the plaintiff's attorney, in an action to recover the price of a piano, agreed to settle the action by the return of the piano and payment of costs, the court upheld the compromise. S. C. The power of counsel or attorney to compromise was much discussed on rules for attachment in the case of Swinfen v. Swinfen, 18 C. B. 485; 25 L. J., C. P. 303; 1 C. B., N. S. 364; 26 L. J., C. P. 97. In S. C. in Equity, it was held that neither counsel nor attorney could compromise the suit at Nisi Prius; 24 Beav. 549; 2 De G. & J. 381; 27 L. J., Ch. 35, 491; though the L. JJ. in so deciding declined to lay down any general principle on the subject. See also Green v. Crockett, 34 L. J., Ch. 606. And it seems that in equity, where a party has inadvertently consented to an order, he may withdraw his consent before the order is drawn up. Holt v. Jesse, 3 Ch. D. 177. And now see J. Act, 1873, s. 25 (11), post, p. 282.

As to what liability a counsel or solicitor incurs to his client by settling an action contrary to the client's wishes, see Swinfen v. Chelmsford, Ld., 5 H. & N. 890; 29 L. J., Ex. 382; Fray v. Voules, and Chown v. Parrott, supra.

Who is to begin.] It is often a subject of inquiry whether the plaintiff or the defendant is to open the facts and evidence to the jury. This may be an advantage, and is then claimed as a right; as where evidence is anticipated on the opposite side which will give a right to reply generally on the whole case; or it may be a burden; as where a party relies on the witnesses of his opponent, or on the difficulty of the proofs incumbent on him.

The right or obligation to begin, generally depends on the nature of the issue, and also on the rules respecting the onus probandi at the commencement of the trial (see ante, pp. 89, et seq.); and the test has been said to be, not on which side the affirmative lies, but which side will be entitled to a verdict if no evidence be given. Leete v. Gresham Insurance Co., 15 Jurist, 1161, Ex. M. T. 1851. Thus, where the plaintiff declared for unworkmanlike execution of a contract, and defendant pleaded that it was executed in a

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workmanlike way, and thereupon issue was joined, it was held that plaintiff was to begin; for it was not to be assumed that the work was bad. Per Alderson, B., Amos v. Hughes, 1 M. & Rob. 464. This test, however, is only another way of stating the common rule that he, on whom the burden of proof lies, must begin: for this must be ascertained before it can be determined which side is entitled to the verdict. As a general rule the proof lies on him who affirms, except in cases where the presumption of law or fact is in favour of the affirmative. It must, however, be borne in mind that regard must be had to the effect and substance of the issue and not to its grammatical form. Soward v. Leygatt, 7 C. & P. 615, per Ld. Abinger; Amos v. Hughes, supra.

It will be seen, by a careful comparison of the cases collected below, that the most general criterion that can be given as to the right to begin is, that "he begins who in the absence of proof on either side would substantially fail in the action." This includes those actions for unliquidated damages noticed below, in which the plaintiff must give some evidence in order to get substantial damages, although he would, if no evidence were given on either side, be entitled to a verdict for a nominal amount, for such a verdict would be a substantial failure. See 45 L. T., pp. 196, 219, on The Right to begin.

Where, in an action by indorser against acceptor, defendant pleaded that the bill was for the drawer's accommodation, and that plaintiff did not give any consideration to the drawer, to which plaintiff replied that it was indorsed to him by the drawer for a good consideration: held, that as a consideration is presumed, the defendant must begin by proving the want of it, or some suspicious circumstances to throw the proof on the plaintiff. Mills v. Barber, 1 M. & W. 425; Accord. Lewis v. Parker, 4 Ad. & E. 838. In a declaration on a policy on a life, the plaintiff averred that the deceased had led a temperate life, which was denied by the plea; held that the onus probandi, and therefore the right to begin, was with the plaintiff, as he was bound to give some evidence that the life was insurable; though it was contended that intemperance was not to be presumed. Huckman v. Fernie, 3 M. & W. 505; Accord. Rawlins v. Desborough, 2 M. & Rob. 70. And the same point was ruled in two other cases in which the issue raised on the plea was respecting the health of the insured; Geech v. Ingall, 14 M. & W. 95; Ashby v. Bates, 15 M. & W. 589; although the plea, alleging a specific complaint, ended with a verification in the last Where an issue on the sanity of a person was directed by chancery, the court presumed that the person ordered to be plaintiff was to begin. Frank v. Frank, 2 M. & Rob. 314.

case.

So, in general, if the affirmative of the issue lies on the defendant, and the plaintiff does not seek to recover unascertained damages within the rule on that subject presently noticed, the defendant's counsel begins (after the pleadings have been opened by the plaintiff), and has the general reply. Cotton v. James, M. & M. 275; Jackson v. Hesketh, 2 Stark. 518. So, where lib. ten. was pleaded, and no general issue. Pearson v. Coles, 1 M. & Rob. 206. So, where the defendant, a constable, being sued in trespass pleaded a justification without the general issue, it was held that his counsel, admitting a demand of a copy and perusal of the warrant (24 Geo. 2, c. 44) and the damages claimed, was entitled to begin. Burrell v. Nicholson, Id. 305. To trespass q. c. f. the defendant pleaded a right to a watercourse and entry to remove obstructions, the plaintiff traversed the right: held, that the judge might properly allow the defendant to begin, unless the plaintiff undertook to prove substantial damage. Chapman v. Rawson, 8 Q. B. 673. So, where a defendant in replevin pleads property in a third person, A., and not in the plaintiff, to which the plaintiff replies

that the property is not in A. but in the plaintiff, the defendant is entitled to begin. Colstone v. Hiscolbs, 1 M. & Rob. 301. And where, to an action of covenant for repayment of money, the defendant pleaded that the deed was given to secure money lost by gambling, it was ruled that the defendant was entitled to begin. Hill v. Fox, 1 F. & F. 136.

But, where by order of court the defendant is under an obligation to admit the plaintiff's case, this does not necessarily deprive the plaintiff of his right to begin. Thwaites v. Sainsbury, 5 C. & P. 69. Nor, does the admission by the defendant's counsel of all the facts, the proof of which are on the plaintiff, give the defendant the right to begin, where the admission of these facts might have been made in pleading. Pontifex v. Jolly, 9 C. & P. 202; Price v. Seaward, Car. & M. 23.

In many cases where damages and not the decision of a mere right, have been the object of an action, defendants used so to plead as to take an affirmative issue on themselves, and thereby attempt to exclude the plaintiff's right to a general reply. The judges, however, came to a resolution that "In actions for libel, slander, and injuries to the person, "the plaintiff shall begin, although the affirmative issue is on the defendant." Mercer v. Whall, per Ld. Denman, C. J., 5 Q. B. 447, 462. The resolution, however, is not to be taken as confined to those actions, or introducing a new practice, but as a declaratory of a principle applicable to other actions. See Ib. 456, 463. The general rule, therefore, as laid down in this case, is, that wherever the record shows that something, even damages only, is to be proved by the plaintiff, he ought to begin, whether the action be in contract or tort. Where the damages are of ascertained amount, or must be nominal, then it seems that the defendant may begin, if the pleading will admit of it. See Ib. 455, 465. See further as to this resolution Cannam v. Farmer, infra, and cases cited in Mercer v. Whall, supra. Thus, in covenant for dismissing a clerk, the defendant pleaded misconduct, and plaintiff replied de injuria, &c.; held that plaintiff ought to begin. S. C. So, in an action on a promissory note to which defendant pleads, inter alia, payment into court, and issue is joined as to damages ultra, the plaintiff is to begin, though other issues lie on the defendant. Booth v. Millns, 15 M. & W. 669. On a note by the defendant, to which she pleads coverture when she made it, on which issue is joined, the defendant is to begin, although the plaintiff seeks to recover interest, not mentioned on the note. Cannam v. Farmer, 3 Exch. 698. In replevin, and avowry for rent, plaintiff pleaded discontinuance of receipt for 20 years, and no distress within 20 years after the right accrued: replication, distress within 20 years and issue: held that plaintiff should begin, because he must show when the distress was made. Collier v. Clark, 5 Q. B. 467. In trespass q. c. f., where the defendant pleaded a custom to divert water, which was traversed by the plaintiff, the defendant was allowed to begin; though the plaintiff's counsel asserted his intention of asking for heavy damages. Bastard v. Smith, 2 M. & Rob. 129; and per Tindal, C. J., "The plaintiff might have traversed the custom and new assigned excess, and then would have had a right to begin." Ibid. 132. Under Rules 1883, O. xxiii., r. 6, the plaintiff instead of new assigning would amend his statement of claim or reply specially. In a similar action the defendant was also held entitled to begin, as the plaintiff's counsel would not pledge himself to go in for substantial damage. Chapman v. Rawson, 8 Q. B. 673. In Cann v. Facey, cor. Gurney, B., Exeter Sum. Ass. 1835, in an action of trespass for shooting a dog, where a defendant justified to prevent it from trespassing, the plaintiff was held entitled to begin, though the defendant offered to admit the value of the dog; for per Cur., "the plaintiff may have damages beyond that amount;" and a similar ruling by Ld. Tenterden was cited.

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