Present: De Sampayo J. and Loos A.J.         1919

FERNANDO   v.   DE   MEL et al.

 143-D. C. Colombo, 47,785.

Surveyor appointed arbitrator in action, for definition of boundaries- Payment of half of survey fee by one party before commencing work-Misconduct. 
     
An action for definition of boundaries was referred to a surveyor for arbitration. When referring the matter to the arbitrator, the Court ordered that the costs of arbitration should, in the first instance, be paid by both parties in equal shares. Before he commenced his work, the arbitrator wrote to the proctors on both sides to pay Rs. 75 for survey fees. The plaintiff paid Rs. 37.50. The   defendants   promised   to   pay,   but   did   not   do   so.

Held, that in the circumstances the receiving of the fee from the plaintiff   only   did   not   amount   to   misconduct.

Fernando v. Migel Appu 1 [1 (1913) 16 N. L. R. 157.] considered.

THE facts appear from the judgment.

A. St. V. Jayawardene (with him Cooray), for plaintiff, appellant.

Bawa, K.C., for defendants, respondents.

March 20, 1919.    De Sampayo J.-

The plaintiff and the first defendant (the wife of the sec