PART II. CH. VII. S. 2. Costs following balance. Costs divided. Costs not distributive. So where the costs of the action were to abide the event of the action, and the costs of the reference and award to abide the event of the award, and the arbitrator found for the plaintiff in the action for 807., and for the defendant as to the matters in difference beyond the action for 67., and ordered the defendant to pay the balance to the plaintiff, each party had to bear their own costs of the reference (t). Where there were several accounts between two merchants, and they agreed that the whole accounts should be referred to an arbitrator, the costs to abide the result of the award, and the arbitrator found the balance upon some of the accounts in favour of one party, and upon others in favour of the other, but the final balance of the whole amount in favour of one of the two, the result on which the right to costs depended was the final determination of the whole matters in dispute, and the costs followed the balance and this it seems was the case, although an action had been commenced in respect of some of the matters in account, and the cause and all matters in difference were referred, the costs of the cause, reference, and award, to abide the result of the award, and the arbitrator had determined that in the action the plaintiff was entitled to recover a certain amount, but that on the balance of all the accounts, taking into consideration the sum found due in the action, the plaintiff was indebted to the defendant (u). On a like reference the award found 377. due on the money counts from defendant to plaintiff, a like sum and 27. 10s. due from plaintiff to defendant on a set-off, on a count for trover 407. damages against the defendant. The court held the plaintiff entitled to the costs of the action, the defendant to the costs of proving the set-off, but neither party to the costs of the reference or award (x). On a claim by a contractor for making seven separate portions of a railway under seven distinct contracts, the action and all matters being referred, the costs of the cause and reference to abide the event, it was held that the arbitrator need not award separately as to each portion, (t) Gribble v. Buchanan, 26 L. J. C. P. 24; S. C. 18 C. B. Rep. 691. (u) Hemsworth v. Brian, 1 C. B. 131; Dunhill v. Ford, 37 L. J. the costs not being distributive according to the result of each (y). PART II. CH. VII. S. 2. event, whether arbidecide cause. trator need action to cease. Where an action of trover for corn was referred, the costs When costs to abide the event of the award, and the arbitrator awarded follow general to the plaintiff a right of entering into the defendant's barn, but did not decide the action, it was held that as the event was substantially in the plaintiff's favour, the plaintiff was entitled to his costs, and the court noticed the distinction that the costs were to abide the event "of the award," and not "of the action" (≈). When the costs of the suit, reference, and award, were to Awarding abide the event of the award, and, independently of the cause, the award was partly in favour of the plaintiff, and partly of the defendant, as the event of the award as to costs was already determined by this finding to be, that each party should pay his own, it was not incumbent on the arbitrator to make a legal termination of the cause in favour of either party. On this ground, where an action for the price of some flints sold and delivered, and also for the use and occupation of a gravel pit, was referred, with all matters in difference, the costs of the suit, reference, and award, being to abide the event of the award, the court supported the award, which directed the defendant to deliver a certain quantity of flints to the plaintiff, and the plaintiff to pay the defendant a specified sum, upon payment of which the award ordered that all proceedings in the action should cease, and that each party should give the other a general release, the arbitrator expressing no opinion respecting the merits of the action (a). of cause. But although it may not be absolutely necessary, it is Costs of cause advisable in all cases, if possible, to decide on the merits of abiding event the cause separately, for in some cases where the costs of the cause, and of the reference and award, were to abide the event of the award, the court have construed the submission to mean that the costs of the cause were to depend on the event of the award as to the cause (b), and in one instance, (y) Crawshaw v. The York and North Midland Rail. Co., 21 L. J. Q. B. 274. See the preceding division of this section as to the advantage and effect of distributive findings, p. 392. (z) Anon., 1 Smith, 426. (a) Yates v. Knight, 2 Bing. N. C. 277. (b) Eardley v. Steer, 2 C. M. & R. 327. 396 PART II. CH. VII. S. 2. Costs of causes abiding event of each. Costs of cause and suit abiding general event. Costs of reference to when the cause was decided for the defendant, and the general event of the reference was for the plaintiff, directed the master to tax the defendant his costs of suit, and give the plaintiff the costs of the reference (c). From the peculiar terms of the submission, and the nature of the subject-matter, the direction that costs are to abide the event of the award has been in particular cases construed to mean that the costs of each matter are to abide the decision on that matter. An action of replevin, and two actions of ejectment were referred, together with the subjectmatters thereof, in one submission, and it was also agreed "that the costs of the said several actions, and of all matters and things relating thereto, shall abide the event of the award, and be borne and paid by the parties at such time and in such manner as the same shall be thereby ordered to be paid, and that the costs and charges of the submission, reference and award, shall be in the discretion of the arbitrators." The arbitrators found two actions in favour of one party, and one in favour of the other, and then directed the costs of each action severally to be paid by the losing party in each on a particular day. It was objected that the arbitrators had no power over the costs, as the event of the award was not wholly one way; but the court held the arbitrators right in their direction, as in substance several actions, and nothing more, being referred, the agreement that the costs of the actions should abide the event of the award, meant the event of the award as to each action distributively (d). But where an action and a suit to restrain the plaintiff at law from proceeding with the action were referred, the costs of the action and suit to abide the event of the award, the court held that the event which the costs were to abide meant the ultimate and general event, and not that of each particular part (e). By the agreement of reference between M. and W. referinclude costs ring all matters in difference, it was provided that an action by M. against W. should be discontinued, and that the costs of the reference and award, including the costs of the action, of action. (c) Chittenden v. Walker, 3 A. & E. 691. (d) Jones v. Powell, 6 Dowl. 483. (e) Reeves v. Macgregor, 9 A. & E. 576. should abide the event of the arbitration. The arbitrator found that W. was not guilty of the charges alleged in the action, but owed M. a certain sum. The Court of Queen's Bench held neither party entitled to costs (f). And it was subsequently decided by the Court of Exchequer, that the one party who had paid the umpire's charges in order to take up the award was entitled to recover half the amount by action from the other (g). Where a verdict was taken subject to a reference to an arbitrator to find the facts and state a case, the costs of the reference and arbitration, and special case, to be costs in the cause, and to abide the event thereof, and the court below gave judgment for the plaintiff, but that was reversed in the Exchequer Chamber; the court held that the event meant, not the ultimate event, but the event as if there had been a trial at law and no reference at all (h). PART II. CH. VII. S. 2. Costs of reference to cause. effect as a IV. Effect of the award when costs abide the event.]-When Award same the costs of the cause are to abide the event of the award, verdict. the costs which are allowed are generally those costs only which would have followed the legal event had the conclusion arrived at by the award been obtained in the ordinary course of law. trial. Thus, on a reference taking place after a verdict for the Costs of first plaintiff and a rule for a new trial, the costs of the cause to abide the event, the arbitrator found for the defendant on all the issues; it was held that as, if there had been a second trial, neither party would have been entitled to the costs of the first trial, the finding of the arbitrator gave the defendant no claim to those costs (i). So where the costs of a cause Costs of referred at Nisi Prius were to abide the event, and the arbi- plaintiffs. trator awarded that there was not anything due to the plaintiffs, it was held that as the plaintiffs were suing as executors, they were not liable to pay costs to the defendant, as they would not have been liable had the cause been so decided by the verdict of a jury (k). So also where on a (ƒ) Marsack v. Webber, 29 L. J. Q. B. 109. (g) Marsack v. Webber, 6 H. & N. 1. (h) Whaley v. Laing, 5 H. & N. 480; S. C. 29 L. J. Ex. 313. (i) Thomas v. Hawkes, 1 Dowl. N. S. 346; Summers v. Formby, 1 B. & C. 100. (k) Highnam v. Hassell, cited in Swinglehurst v. Altham, 3 T. R. 138. executors PART II. CH. VII. S. 2. Damages under 40s. Reference finding for plaintiff on one of several matters in the cause. similar reference the arbitrator awarded that the plaintiff's demand was thirty-seven shillings only, a sum under forty shillings, the court made absolute a rule referring it to the master to tax the defendant his costs of the action, since if a jury had arrived at a like result, they would have permitted a suggestion to have been entered to entitle the defendant to costs (). In an action for breach of covenant in a farming lease, the declaration complained that the defendant had not paid for certain expenses, had not farmed his land in a proper manner, had not left proper fallows, and had carried off straw from the farm. After plea, the cause was by judge's order referred to arbitration, "the costs of the reference to abide the event." An award found for the plaintiff for sixteen shillings on the breach charging the defendant with removing straw; and that the plaintiff had sustained no damage by reason of any of the other alleged breaches. The Court of Exchequer held that the plaintiff was not entitled to the costs of the reference, and drew a distinction between a reference before issue joined, and one where a verdict has been taken subject to the reference; and Pollock, C. B., said, "In the latter case the plaintiff gets his costs on the issues on which he succeeds, and the defendant his on the issues on which he succeeds; and when on the whole, by gaining on the issues in the cause, the plaintiff succeeds, he gets the general costs of the cause. But when there is a reference of an action before issue joined, with an agreement, as here, that the costs are to abide the event, and the plaintiff succeeds as to a very small part of the claim for which he brings his action against the defendant, and fails as to the greater part of his claim, is he to be entitled to the costs of the reference against the defendant? I think not. If I am asked who has succeeded in the present case, I say the defendant" (m). The attention of the court was there called to the case of Wigens v. Cook (n), which was a reference at Nisi Prius, the record being withdrawn, and the plaintiff, who had had awarded to him a farthing damages on one of many counts, (7) Butler v. Grubb, cited in Swinglehurst v. Altham, 3 T. R. 138. (m) Kelcey v. Stupples, 32 L. J. Ex. 6; S. C. 1 H. & C. 576. See P. III. ch. 8, s. 2, as to taxation of costs. (n) Wigens v. Cook, 6 C. B. N. S. 784; S. C. 28 L. J. C. P. 312. |