is, did the Master in law exercise discretion? In one sense he did,
as did the Vice-Chancellor in In re Martin; Hunt v. Chambers
(1), but the Court of Appeal in that case overruled the Vice-
Chancellor because he took an erroneous view as to the burden
of proof. That, as Lindley LJ. said (2), "affected the whole of
his view." And it is clear that, if a tribunal purporting to exer-
cise a discretion takes into account in arriving at its decision
some consideration which by reason of an erroneous view of the
law or of irrelevancy ought not to have been aHowed to weigh
with it at all, then the whole decision is vitiated, and cannot be
relied on as lawful exercise of discretion: R. v. Adamson (3) and
R. v. Board of Education (4). The Master's written reason,
stating what influenced his mind, seems to me to go outside the
limits of the order of the Court as made by Gordow J. That
order settled the right of the petitioner to costs, on the basis of
the case being reasonably brought in the Supreme Court, and
therefore the cireumstances of another avenue being open, even
if it had been fully open, was foreign to the proper determina-
tion of the question before the Master, and so his decision falls
within the principle of R. v. Adamson (3). The matter then
stands thus: that no one has so far in law exercised discretion as
to whether two counsel should be allowed ; and it is impossible
to decide lawfully against the successful petitioner except by the
exercise of discretion. The shortest and cheapest way now is for
this Court to settle it at once. The principle to be applied is
that stated by Fry J. in Kirkwood v. Webster (5), namely, " that
the case was one in which a reasonable and prudent man, acting
with ordinary prudence, would not have ventured to come into
Court without" two counsel. I am fortified in this view by the
opinion of Gordon J., who tried the cause, and think the order
now suggested by the learned Chief Justice the correct one.