was held entitled by the Court of Common Pleas to the costs of the cause which were to abide the event of the award.

PART II.

CH. VII. S. 2.

Costs, amount recovered by

before verdict.

Where, however, "all matters in difference in the cause in an action on the case to try a right to a watercourse were, verdict. after issue joined, referred by a judge's order, the costs of the cause to abide the event of the award, but no power was given to the arbitrator to certify under the repealed statute 3 & 4 Vict. c. 24, s. 2, and the arbitrator found for the plaintiff on all the issues, with sixpence damages, Coleridge, J., remarking Reference that the above-mentioned statute did not apply in terms, as the plaintiff did not recover his damages by the verdict of a jury, held the plaintiff entitled to full costs, construing the submission to mean that the payment of costs should follow the event of the award, namely, that he in whose favour the decision was, should be paid by the other party the costs of the suit (o). That decision has been followed in a case where the record was withdrawn, and the arbitrator, who had all the powers as to certifying as a judge at Nisi Prius, had on one count out of many awarded a farthing damages, but had not certified (p). So where a cause was referred before trial, the costs of the cause to abide the event, and the arbitrator awarded in the plaintiff's favour 37., the court held that the plaintiff was entitled to the costs of the cause, and was not barred by the County Courts Act, 13 & 14 Vict. c. 61, s. 11 (q). So in an action of slander referred after issue joined, where the arbitrator found for the plaintiff on one of three counts and gave twenty shillings damages, the court held the plaintiff entitled to costs, the reference being before verdict (r). But, in more recent instances, where a verdict has Reference been taken subject to the reference, an award for the plaintiff after verdict. of less than forty shillings damages has been held to bar his right to costs, as amounting to a recovery by verdict of a jury within the above-mentioned statute, and Griffiths v. Thomas (s) was distinguished as being the case of a reference before

(0) Griffiths v. Thomas, 15 L. J. Q. B. 336; S. C. 4 D. & L. 109. (p) Wigens v. Cook, 28 L. J. C. P. 312; S. C. 6 C. B. N. S. 784.

(q) Jones v. Jones, 29 L. J. C. P. 151; S. C. 7 C. B. N. S. 832.

(r) Fream v. Sargent, 32 L. J. Ex. 281; S. C. 2 H. & C. 293. See also Owens v. Vanhomrigh, 14 Irish C. L. R. Q. B. 362.

(8) 15 L. J. Q. B. 336; S. C. 4 D. & L. 109.

PART II.

CH. VII. 8. 2.

Of cause and all matters. Compulsory reference.

Verdict held immaterial.

Act.

verdict (f). Though the cause and all matters be referred on a verdict taken subject to the reference, the same rule applies that the costs of the cause follow as on a verdict (u).

On a compulsory reference to the master, "costs to abide the event," where the master certified for the plaintiff for 31. 78. 6d., it being shown that the matter arose within the jurisdiction of the Sheriff's Court of London, it was held that the costs followed the legal event, and that the plaintiff was deprived of his costs by the London Small Debts Act, 15 & 16 Vict. c. lxxvii.; and the court distinguished the cases of Wigens v. Cook (x), and Jones v. Jones (y), as being references by consent before trial (). It does not seem probable that any distinction will be made on this point between references by consent and compulsory references (a).

The old rule, depending on whether the reference was before or after taking verdict, has been abandoned by the Court of Queen's Bench as unsound, and the true rule stated to be, that whenever the plaintiff is entitled to judgment in the action and gets damages in the action, and the case is such, that if there had been no reference the plaintiff would, by virtue of the County Courts County Courts Act, have lost his costs in the cause, so does he equally lose them, when there is a reference which fixes the amount, unless he gets the necessary certificate (b) for costs on the High Court scale. This certificate could be given by the court, notwithstanding that the cause was referred by consent, with judgment to be entered for the amount awarded (c). It would seem that when the whole cause is referred, the arbitrator, under Order XXXVI. r. 55 (b), has the power of allowing higher costs (d).

When defen

A determination of a cause by an arbitrator, where a dant arrested verdict has been taken subject to the reference, has often been held equivalent to a trial, so as to entitle the defendant

for too large

sum.

(t) Cooper v. Pegg, 24 L. J. C. P. 167; Reid v. Ashby, 13 C. B. 897.

(u) Smith v. Edge, 33 L. J. Ex. 9; S. C. 2 H. & C. 659.

(x) 6 C. B. N. S. 784; S. C. 28 L. J. C. P. 312.

(y) 7 C. B. N. S. 832; S. C. 29 L. J. C. P. 151.

(z) Robertson v. Sterne, 31 L. J. C. P. 362.

(a) Smith v. Edge, 33 L. J. Ex. 9, per Bramwell, B. See Webb v. Sanderson, in notis, 2 H. & C. 984; Cowell v. Amman Aberdare Colliery Co., 12 L. T. N. S. 150. (b) Cowell v. Amman Aberdare Colliery Co., 12 L. T. N. S. 150. (c) Hyde v. Beardsley, 18 Q. B. D. 244.

(d) See ante, p. 378, where the rule is set out.

to costs under the 43 G. III. c. 46, s. 3, where the plaintiff does not recover the sum for which the defendant was arrested, and the arrest was made without reasonable and probable cause (e). A similar decision has been arrived at with regard to applications under the statute 12 & 13 Vict. c. 106, s. 86, where the plaintiff makes an affidavit as to the amount of the debt, without reasonable or probable grounds (ƒ). Nor is he precluded from applying on the ground of other matters in difference being referred by the same submission, if the arbitrator have made a separate adjudication as to the cause (g). But where a cause was referred before trial, the costs to abide the event, and there was no award of a verdict, the defendant was held not entitled to costs under the 43 G. III. c. 46, s. 3, on the ground that the sum awarded the plaintiff was not money recovered in the action within the meaning of the statute (h), even when, by the submission, the costs were to abide the event in like manner as on a verdict (i).

PART II.

CH. VII. S. 2.

Where in an action for 3567. the defendant A., after paying Plaintiff 319. to the plaintiff, pleaded the nonjoinder of B. and C. as less than 207. recovering co-contractors, and the plaintiff thereupon added them as defendants, and the cause was referred at the trial, costs of the cause to abide the event of the award, and the arbitrator directed the verdict to stand for 37., and refused to certify for costs; it was held that the plaintiff, having in his action against the three defendants recovered less than 207., was not entitled to the costs of the cause even as against A. (k).

Where a cause and all matters in difference were referred, the costs of the cause to abide the event of the award, and the arbitrator found that at the commencement of the suit there was due from the defendant to the plaintiff 457., and that the plaintiff had no reasonable or probable cause for arresting the defendant (as he had done) for 1797., and that

(e) Summers v. Grosvenor, 2 C. & M. 341; Summers v. Formby, 1 B. & C. 100; Silversides v. Bowley, 1 Moore, 92; Rowe v. Rhodes, 2 C. & M. 379; Reynolds v. Flower, 3 M. & Sc. 801; Payne v. Acton, 1 B. & B. 278; Watkins v. O'Gorman Mahon, 5 Dowl. 178.

(f) Deere v. Kirkhouse, 20 L. J. Q. B. 195; Hill v. Merritt, 26 L.

R.

PART II.

CH. VII. S. 2.

Double costs in replevin.

Costs in

action for not setting out tithes.

Case within

Court of Requests Act.

Costs of compensation inquiry.

the defendant, by means thereof, was entitled to compensation to the amount of 207.; the court, in the exercise of their discretion, refused to allow the defendant costs under the 43 G. III. c. 46, inasmuch as by the terms of the submission the costs were to abide the event of the award, and that was in favour of the plaintiff (i).

Where a replevin suit not at issue was referred, the costs to abide the event, and the arbitrator awarded in favour of the defendant, it was held that the defendant was not entitled to double costs under the statute 11 G. II. c. 19, s. 22, as that act gave double costs against a plaintiff in replevin only in three cases, namely, when he was nonsuited, discontinued his action, or had judgment given against him; though had the arbitrator awarded a discontinuance it would perhaps have been different (). An action to recover the treble value of tithes not set out under 2 & 3 E. VI. c. 13, having been referred after demurrer, and the arbitrator having awarded the single value to be less than 67. 13s. 4d., the plaintiff was held not entitled to costs on the counts for the penalty under the statute 8 & 9 W. III. c. 11, s. 5, the value not having been found by the jury (7); but full costs were given when there was a verdict taken subject to the reference, and the arbitrator directed a verdict to be entered for the treble value, 17. 10s. (m). An award of less than 5l., on the reference of a cause within the jurisdiction of the London Court of Requests, deprived the plaintiff of his right to costs (n), although there was no verdict (o).

Where a party claiming compensation under a Railway Act agreed to refer his claim to arbitration, instead of taking the verdict of a jury under the provisions of the act, and the deed of reference and the award were silent about costs, the party was not held entitled, on account of an award in his favour, to claim the costs of the reference from the company, although, had a jury given him by their verdict a similar

(i) Thompson v. Atkinson, 6 B. &C. 193. See also Turner v. Prince, 2 M. & P. 305; Higginson v. Broadhurst, 1 D. & L. 490.

(k) Gurney v. Buller, 1 B. & A. 670.

(7) Barnard v. Moss, 1 H. Bl.

(m) Pedley v. Frampton, 2 Chitt. 155.

(n) 39 & 40 Geo. 3, c. 104, s. 12, Local Act.

(0) Day v. Mearns, 2 Chitt. 157. See Holden v. Newman, 13 East, 160.

amount of compensation, he would, according to the statute, have been entitled to the costs of summoning the jury, the expenses of a bond which the party was bound to execute, and the expenses of witnesses (p).

PART II.

CH. VII. S. 2.

Small Debts

For the purposes of costs under the Small Debts Act, Costs under an award in a cause referred after issue joined, giving the Act. plaintiff less than 207., seems to have stood on the same

footing as a verdict (9).

counterclaim.

In an action in which a claim for debt and damages Claim and exceeded 1007., and the counterclaim for debt and damages also exceeded 100/., the award found that the plaintiff was entitled to 107., and 257. damages, and that the defendant. was entitled to 207. damages. It was held that the plaintiff was entitled to the costs on his claim, and the defendant to the costs on his counterclaim (→).

to defendant.

Where the award on a compulsory reference found the County Court plaintiff entitled to 167., but that the defendant was entitled Act not apply on his counterclaim to 237., so that the defendant was entitled to 77. balance, the defendant was held entitled to his costs, and that the County Courts Acts did not apply to deprive defendants of their costs (s).

Where the costs of the cause and counterclaim were to follow the event, and the arbitrator found the plaintiff entitled to 3717., and the defendant entitled on his counterclaim to 3757., and that the plaintiff should pay the defendant the balance of 47., the plaintiff had the costs of proving his claim from the defendant, and the defendant the costs of proving his counterclaim from the plaintiff (†).

low verdict.

Where the parties agreed in an action that the arbitrator Agreement. was to award a lump sum if he found for the plaintiff, and Costs to folthat the costs of the action, arbitration and award were to follow the event of the verdict, and the arbitrator found for the plaintiff, but only gave one-fifth of the plaintiff's claim, it was held that the plaintiff was entitled to all costs (u).