and procedure in connection with a cause or matter in the High Court; and the decision in Long v. Great Northern and City Ry. Co. (1) is to the same effect. There is no question here of practice and procedure in a cause or matter in the High Court. The action is stayed, and it is impossible to look on the arbitration as a proceeding in that action. J. A. Hamilton, K.C. (G. D. Keogh with him), for the appellants. The principle of the two cases cited is not applicable to the present case. In those cases the questions had to do with the practice and procedure in matters pending in inferior Courts, one being a question of prohibition to a county court and the other a matter relating to the proceedings in the sheriff's court. In this case there is an action pending in the High Court, which, though it is at present stayed, is not dead. The Arbitration Act, 1889, s. 19, gives the High Court a special consultative jurisdiction in arbitrations. It is submitted that an application for the exercise of that jurisdiction is a matter in the High Court, the practice and procedure in which comes within the terms of the Supreme Court of Judicature (Procedure) Act, 1894, s. 1, sub-s. 4. In the case of In re Portland Urban District Council and Tilley & Co. (2) a matter analogous to the present was held by a Divisional Court to be a matter of practice and procedure within that Act. In other cases the Court of Appeal has, since the decision in Long v. Great Northern and City Ry. Co. (1), entertained appeals direct to that Court in cases analogous to the present; as, for instance, in Rasch & Co. v. Wulfert (3); but it must be admitted that the preliminary objection was not in those cases called to the attention of the Court. Cur. adv. vult. Dec. 21. The judgment of the Court (Collins M.R. and Stirling L.J.) was delivered by STIRLING L.J. We have considered the cases of Watson v. Petts (4) and Long v. Great Northern and City Ry. Co. (1), and we think that the principle upon which they were decided (1) [1902] 1 K. B. 813. (3) [1904] 1 K. B. 118. C. A. 1904 must apply to the present case; and therefore, in obedience to those decisions, we must give effect to the preliminary objection FRERE AND and dismiss the appeal. STAVELEY TAYLOR & Co. AND NORTH SHORE COMPANY, Appeal dismissed. Solicitor for appellants: James Neal, for Evans, Lockett & Co., Liverpool. Solicitors for respondents: Pritchard, Englefield & Co., for Simpson, North & Co., Liverpool. E. L. C. A. 1905 Jan. 12, 13. [IN THE COURT OF APPEAL.] FRASER v. FRASER. Practice-Appeal-Reference of Action to Master-Consent of Parties-Rules of Supreme Court, Order XIV., r. 7; Order XL., rr. 6, 6 (a); Order LIX., r. 3; Arbitration Act, 1889 (52 & 53 Vict. c. 49), ss. 14, 15. When, under rule 7 of Order XIV., an action is, with the consent of the parties, ordered to be referred to a master, an appeal lies from his decision to a Divisional Court. Decision of the King's Bench Division, [1904] 2 K. B. 245, reversed. APPEAL from the decision of a Divisional Court. (1) The question was whether an appeal lay from the decision of a master to whom the action had been referred by an order by consent under rule 7 of Order XIV. of the Rules of the Supreme Court. The action was brought to recover commission on the sale of shares and for an account. The writ was issued on April 8, 1903. The defendant counter-claimed for money paid by him for the plaintiff. The plaintiff applied for judgment under Order xiv. On the hearing of the application on April 29, 1903, the master refused to give the defendant liberty to defend, and gave the plaintiff liberty to sign final judgment. The defendant appealed to the judge, and on May 5, 1903, (1) [1904] 2 K. B. 245. Phillimore J. discharged the order of the master and gave the defendant liberty to defend the action. And it was by consent further ordered, under Order XIV., r. 7, "that the action be referred to be decided by a master without pleadings.' The action was then tried by the master, and he, by his certificate dated May 26, 1903, found that the plaintiff was entitled to recover the sum of 9251. 1s. 11d., and directed that judgment should be entered accordingly. On May 27, 1903, judgment was entered accordingly. The defendant gave notice of appeal to the Court of Appeal. The Court of Appeal held (1) that in such a case an appeal did not lie direct to the Court of Appeal. But they left the question open whether an appeal lay to a Divisional Court. The defendant then gave notice of appeal to the Divisional Court, asking that the finding and certificate of the master and the judgment might be set aside or varied, and judgment entered for the defendant on the claim and counter-claim, or alternatively that a new trial or reference might be had, or that the action might be remitted to the master for reconsideration, on the ground (inter alia) that the finding was against the weight of evidence. The Divisional Court (Lord Alverstone C.J. and Wills and Kennedy JJ.) held (2) that the decision of the master in a reference under rule 7 of Order XIV. was final. The defendant appealed. (3) (1) [1904] 1 K. B. 56. (3) Order XIV., r. 7: "Upon the hearing of the application (i.e., for judgment), with the consent of the parties, an order may be made referring the action to a master, or the action may be finally disposed of without appeal in a summary manner." Order XL., r. 6: "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 Rule 6 (a): "Rules 2 and 6 of By the Arbitration Act, 1889 "(a) If all the parties interested C. A. 1905 FRASER v. FRASER. C. A. 1905 FRASER v. FRASER. Hume-Williams, K.C., and J. W. McCarthy, for the defendant, repeated the arguments which they had used in the Divisional Court, referring also to Lyon v. Morris (1), Gower v. Tobitt (2), and Wynne-Finch v. Chaytor. (3) They contended that ss. 14 and 15 of the Arbitration Act, 1889, applied to a reference by consent under rule 7 of Order XIV., and that rules 6 and 6 (a) of Order XL. gave a right of appeal to a Divisional Court from the decision of the master. They relied also on the omission from the first branch of rule 7 of the words" without appeal" which occurred in the second branch. W. Frampton, for the plaintiff, adopted the arguments used on the plaintiff's behalf in the Divisional Court. He contended that the reference under rule 7 was an ordinary arbitration by consent, and that the object of the rule was to put an end to litigation at once. If there was to be an appeal on every case from a decision of an officer of the Court, rule 9 of Order XXXV., which provides that "any person affected by any order, finding, or decision of a district registrar may appeal to a judge," would have been unnecessary. It was intended that there should be an appeal in the case of a compulsory arbitration, but not in the case of an arbitration by consent. Rule 3 of Order LIX. gave an express right of appeal to a Divisional Court from the award or certificate of an arbitrator or referee upon a question of law when a compulsory reference to arbitration had been ordered. There was no appeal to a Divisional Court from an order which had the same effect as the finding of a jury; in such a case, if there was any the Court or a judge may at any time By s. 15, "(1.) In all cases of refer- Court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by Rules of Court, and subject thereto as the Court or a judge may direct. "(2.) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the Court or a judge, be equivalent to the verdict of a jury." (1) (1887) 19 Q. B. D. 139. (2) (1891) 39 W. R. 193. (3) [1903] 2 Ch. 475. appeal it was to the Court of Appeal direct. Rule 6 of Order XL. must be read in conjunction with rule 52 of Order xxxvI. Trevor Lloyd, for garnishees of the plaintiff's interest. J. W. McCarthy, in reply, as to the effect of rule 3 of Order LIX. That rule is now practically superseded. It was made before the Arbitration Act, 1889, was passed, and it applied to the Common Law Procedure Acts. of the Common Law Procedure Act, 1854, are repealed by the Arbitration Act, 1889. Sects. 3 to 17 [ROMER L.J. That rule does not appear to be inconsistent with the second part of the Arbitration Act, 1889. It carries out those provisions for compulsory arbitrations.] [Clark v. Sonnenschein (1) and Munday v. Norton (2) were also referred to.] Cur. adv. vult. Jan. 13. VAUGHAN WILLIAMS L.J. read the following judgment:-The question to be decided in this case is that which was left undecided by the Court of Appeal when this case was before them in 1904: see Fraser v. Fraser. (3) The question is whether, in a case in which an order is made under Order XIV., r. 7, referring an action to a master, there is any appeal against his decision. In Fraser v. Fraser (3) there was an attempt to appeal from the decision of the master by a direct appeal to the Court of Appeal, and the Court of Appeal held that an appeal did not lie to the Court of Appeal direct, but left open the question whether an appeal would lie to the Divisional Court. An appeal was then carried to the Divisional Court, and that Court has held that when an action is referred to a master under Order XIV., r. 7, no appeal lies from his decision, and we have now to consider whether that decision of the Divisional Court is right. This seems to depend on the construction to be put upon rule 7 of Order XIV., and in particular upon the words "referring the action to a master." The Divisional Court have held that the words "referring the action" mean referring the action to a master (2) [1892] 1 Q. B. 403. (1) (1890) 25 Q. B. D. 464. (3) [1904] 1 K. B. 56. C. A. 1905 FRASER V. FRASER. |