This rule, therefore, must be absolute.-Order veyed and valued for the purpose of making rates for quashed. SITTINGS IN BANC AFTER HILARY TERM. REG. v. WILLIAM CLAYTON.-Feb. 24. the relief of the poor of Whaplode Drove. Since the appointment of a district auditor, under the provisions of stat. 7 & 8 Vict. c. 101, that officer had refused to allow the payments theretofore made of the balance which, at the end of the year, was found to be due The District of W. D., which had been anciently Parcel either from the churchwardens and overseers of Whap. of the Parish of W., was well defined as to Boundary, lode Drove to the churchwardens and overseers of and had its own Chapel. The Chapel, before Stat. 43 Whaplode, or vice versâ. The rate appealed against, Eliz. c. 2, had all Parochial Rights, and its own Sacra- being after the rate of 1s. in the pound, was made on ments, Churchwardens, and Burial-ground. The In- the 20th April, A. D. 1846, and was assessed upon ratehabitants of the District had never contributed to the able property situate in Whaplode Drove only, and was Repair of the Church of W., and the Vicar of W. of no greater amount in the pound than was necessarily had never appointed the Minister of the Chapel, but the required, if Whaplode Drove ought, by law, to have titheable Lands of W. had always paid Tithes to the been separately rated for the relief of its own poor, Vicar of W. The District had always had separate though it was higher than would have been necessary Surveyors of Highways and a separate Highway-rate, if there had been one uniform rate over the whole of and had always had a Constable. The earliest Ap- Whaplode and Whaplode Drove for the relief of the pointment of an Overseer for the District was in 1738; poor of both places conjointly; and at the time of the the Practice so continued till 1785, from which Time making of the said rate the appellant was an inhabitant there had been always Two. Separate Poor-rates had of Whaplode Drove, and occupier there of the house been constantly made for the Parish and the District, and lands for which he was rated in and by the said and the Poor in each had been maintained separate- rate. At the time of making the said rate, an assessly, so far as Out-door Relief had been given. The ment was made by the churchwardens and overseers of Amount in the Pound had always been the same in the poor of Whaplode, and duly allowed and published both, the Overseers of the District taking that Amount according to law, for the relief of the poor of the pawhich had been already fixed by the Overseers of the rish of Whaplode, after the rate of 8d. in the pound, Parish when they made a Rate subsequent to the Pa- and such rate was assessed upon rateable property rish, or consulting the Overseers of the Parish as to within Whaplode only, and was not assessed upon any the Amount which they were about to fix when they made rateable property situated within Whaplode Drove, a Rate prior to the Parish. There was no Workhouse which said rate of 8d. in the pound was not so much in the District, but the Poor of the District who re- as would be necessarily required to make the rating quired In-door Relief were always sent to the Work- equal to the said rate of 1s. in the pound upon the ashouse of the Parish, and there maintained by the Over- sessment of Whaplode Drove. By an order of the seers of the Parish out of the Rate levied by them. At Poor-law Commissioners, dated 23rd November, 1835, the End of the Year the Overseers of the Parish and several parishes or places, including Whaplode Drove of the District compared their respective Accounts, and and Whaplode, were formed into a union, under stat. whichever had Money in Hand beyond their own Ex- 4 & 5 Will. 4, c. 76, by the name of "The Holbeach penditure, handed such Money or Balance to the others. Union;" and, in compliance with that order, three The Accounts of the Overseers of the District, after guardians of the said union had ever since been being allowed by their own Vestry, were submitted to the elected out of the inhabitants of Whaplode for Vestry of the Parish, and allowed by them previous to Whaplode, and one guardian out of the inhabittheir being exhibited before the Justices, but not the ants of Whaplode Drove for Whaplode Drove. By Accounts of the Parish Overseers vice versa. orders of the Poor-law Commissioners, in 1836 and The Court, having Power to draw such Inferences as a 1837, the old workhouse, situated in Whaplode, togeJury might, considered that the Fund for the Main-ther with other parish property situated in Whaplode, tenance of the Poor in the Parish and in the District was sold, and the net produce of such sale was applied had always been a joint Fund, and therefore held, that in part payment of the proportion due from Whaplode the District was not within Sect. 21 of Stat. 13 & 14 of the sum lent to the guardians of the union by the Car. 2, c. 12, and that the Parish and District could Exchequer Loan Commissioners, and charged upon the have the Benefit of Stat. 43 Eliz. c. 2. rates of the several parishes thereof. In pursuance of Held, also, that though the Ecclesiastical Separation be- subsequent orders of the Poor-law Commissioners, tween the Parish and the District was complete, with Whaplode and Whaplode Drove had contributed to the the Exception of Tithes, the District was not, before common fund of the said union in the proportions and at the Time of the passing of Stat. 43 Eliz. c. 2, a fixed thereby, and had also maintained their own reParish, or reputed Parish. spective poor, both in and out of the union work house, Orders of the Poor-law Commissioners, made in pursu- separately and distinctly from each other. On the ance of Stats. 4 & 5 Will. 4, c. 76, and 6 & 7 Will. 4, part of the respondents it was alleged, that the disc. 96, respectively, treating the Parish and District as trict, called Whaplode Drove, was, at the time of the separate, do not tend to make them so. passing of stat. 43 Eliz. c. 2, either actually or by reputation a parish, and was, therefore, entitled to have overseers of the poor appointed for it, and to maintain its own poor separately and distinctly from the parish of Whaplode; and that overseers had accordingly been so appointed and the poor so managed and maintained in and for the district ever since; or, that since stat. 13 & 14 Car. 2, c. 12, overseers had been appointed for the village of Whaplode Drove and the lands adjoining thereto, comprising the district aforesaid, under and by virtue of the authority given to justices of the peace in that behalf, by the 21st section of that statute. On the part of the appellant it was alleged, that Whaplode and Whaplode Drove formed one and the same parish, and that, instead of an assessment for the relief of the poor of each separately, there should have been Upon appeal against a rate for the relief of the poor of the parish of Whaplode Drove, in the county of Lincoln, the sessions confirmed the rate, subject to the opinion of this Court upon a case, the substance of which is stated in the judgment of the Court. It appeared, that, after the coming into operation of stat. 6 & 7 Will. 4, c. 96, "to regulate parochial assessments," the rateable property in Whaplode was, by and under an order of the Poor-law Commissioners, dated the 25th August, 1837, made in pursuance of the provisions of that statute, surveyed and valued for the purpose of making rates for the relief of the poor of Whaplode; and by and under another like order of the Poor-law Commissioners, dated the 9th October, 1837, the rateable property in Whaplode Drove was sur one assessment for both. The question for the opinion of the Court was, whether the district of Whaplode Drove, upon the grounds above mentioned, or any of them, is entitled to have overseers appointed for it, and to maintain and manage its own poor, and to have rates and assessments made and levied thereon for that purpose, separately and distinctly from the parish of Whaplode; and the Court was to have the same power of drawing inferences and conclusions from the facts stated in the case as a jury upon the trial of an action would have. If the Court should be of opinion that the district of Whaplode Drove is so entitled, then the rate is to be confirmed; if the Court shall be of a contrary opinion, then the rate is to be quashed. In Hilary Term*, Whitehurst and Tomlinson shewed cause against the rule for quashing the rate.-[They cited 1 Black. Com. 112, and 1 Burn's Eccl. Law, "Parish," as to the term "parish" The Attorney-General v. Brereton, (2 Ves. sen. 425); Hilton v. Pawle, (Cro. Car. 92); Nichols v. Walker, (Id. 394); Holt, C. J., in The Inhabitants of the Forest of Dean and the Parish of Linton, (2 Salk. 487); Rudd v. Foster, (4 Mod. 157; S. C., nom. Rudd v, Morton, 2 Salk. 501, recognised by Littledale, J., in Reg. v. The Justices of Worcestershire, 12 Adol. & Ell. 28, 34; 4 Jur. 1009); Reg. v. Marriott, (12 Adol. & Ell. 35, n.); Price v. Quarrell, (Id. 785).] Pashley and Worlledge, contra, cited Weeden v. Walker, (2 Roll. 160); Nichols v. Walker, (Cro. Car. 394; S. C., Sir W. Jones, 355); Rex v. Newell, (4 T. R. 266); Bastock v. Ridgway, (6 B. & C. 496); The Attorney-General v. Brereton, (2 Ves. sen. 425, 427); Craven v. Sanderson, (7 Adol. & Ell. 880). Cur. adv. vult. WIGHTMAN, J., now delivered the judgment of the Court. This was a case stated by the Court of Quarter Sessions for the opinion of this Court, on the question, "whether the district of Whaplode Drove is entitled to have overseers appointed for it, and to maintain and manage its own poor, and to have rates and assessments made and levied thereon for that purpose, separately and distinctly from the parish of Whaplode." It appears that the district of Whaplode Drove is well defined as to boundary; that, before the dissolution of the monasteries, the abbot and convent of Crowland were lords of the manor of Whaplode, patrons of the church, and owners of the tithes; that there was then a chapel in the district of Whaplode Drove, with a chauntry and endowment of lands. This chapel and the lands were granted by the Crown, in the 31 Eliz., to certain persons, from whom they have been continued in trustees, in trust to pay the rents and profits to the ministers of the chapel; and the trustees have, on a vacancy, always nominated a person to minister, who has been licensed by the bishop. The vicar of Whaplode, the advowson of which vicarage belongs to the Crown, has never appointed or in any way interfered with the minister of the chapel. The chapel, before the passing of the 43 Eliz. c. 2, always had all parochial rights and sacraments of its own, church wardens, two in number, separate from Whaplode, and its own separate burial-ground. The inhabitants of the district have never contributed, and do not contribute, to the repair of the church of Whaplode. There have been always separate surveyors of highways, and a separate rate for the district, which has not contributed to the other highways in the parish; and it has always had a constable. The titheable lands of the district have always paid tithes to the vicar of Whaplode; but a considerable part of the district is tithe free, having been abbey land. The minister is supported by the profits of the lands with * Jan. 20 and 24, before Patteson and Wightman, JJ. Lord Denman, C. J., and Coleridge, J., were in the Court of Criminal Appeal. which the chapel is endowed, but does not appear to have any tithes. It is admitted in the case, that anciently the district was parcel of the parish. With respect to the maintenance of the poor, the earliest appointment of an overseer was in the year 1738, when one of the inhabitants of the district was appointed overseer for the district; and the practice so continued till 1785, when two were appointed, and from that time there have been always two. Separate poorrates have constantly been made for the parish and the district, and the poor in each have been maintained separately, so far as out-door relief has been given; the amount in the pound has always been the same in both, the overseers of the district taking that amount which had been already fixed by the overseers of the parish when they made a rate subsequent to the parish, or consulting the overseers of the parish as to the amount which they were about to fix when they made a rate prior to the parish. There was no workhouse in the district; but the poor of the district who required indoor relief were always sent to the workhouse of the parish, and there maintained by the overseers of the parish out of the rate levied by them. At the end of the year the overseers of the parish and of the district seem to have compared their respective accounts, and whichever had money in hand beyond their own expenditure handed such money or balance to the others. The accounts of the overseers of the district, after being allowed by their own vestry, were submitted to the vestry of the parish, and allowed by them, previous to their being exhibited before the justices, but not the accounts of the parish overseers vice versa. Under all these circumstances we cannot but see that the fund for the maintenance of the poor has always been, in substance and reality, a joint fund, notwithstanding the mode in which the parts of it have been assessed and collected, and even applied, during the year. The having only one workhouse, the accounting at the end of the year, and the submitting the district accounts to the vestry of the parish, are conclusive facts, and bring this case within the principle of many decided cases, especially Rex v. Newell, (4 T. R. 266); Bastock v. Ridgway, (6 B. & C. 496); Malkin v. Vickerstaff, (3 B. & Ald. 89); Rex v. The Justices of Salop, (3 B. & Adol. 910); Reg. v. The Justices of Worcestershire, (12 Adol. & Ell. 28; 4 Jur. 1009); Reg. v. Marriott, (12 Adol. & Ell. 35, n.); Price v. Quarrell, (Id. 784). Therefore the statute 13 & 14 Car. 2, c. 12, does not apply to this case. Whaplode and Whaplode Drove, notwithstanding the largeness of its extent, might have had, and have had, the benefit of the stat. 43 Eliz. c. 2. But it is said that Whaplode Drove was, before and at the time of the passing of the stat. 43 Eliz. c. 2, a parish, or reputed parish, and, therefore, entitled to be separate from Whaplode in regard to the maintenance of the poor. To establish this point, reliance was placed on the cases of The Attorney-General v. Brereton, (2 Ves. sen. 425); Hilton v. Pawle, (Cro. Car. 92); Nichols v. Walker, (Id. 394; Sir W. Jones, 355); The Inhabitants of the Forest of Dean and the Parish of Linton, (2 Salk. 487); Rudd v. Foster, (4 Mod. 157; S. C., nom. Rudd v. Morton, 2 Salk. 501). These cases have all been cited and commented upon at different times, and especially in Price v. Quarrell, (12 Adol. & Ell. 784). They shew, that where the ecclesiastical separation is complete, as it certainly is in the present case with the exception of tithes, the districts may be separate parishes, or reputed parishes, but not that they necessarily must be. The inhabitants of a chapelry may be discharged from contributing to the repair of the parish church without ceasing to be part of the parish; and the entire separate maintenance of the poor has always been considered as an important ingredient in determining whether a district was a parish or a BAIL COURT.-HILARY TERM.. Railway Arbitration-Lands Clauses Consolidation Act, By Sect. 34 of the 8 & 9 Vict. c. 18, (the Lands Clauses Consolidation Act), the Costs of an Arbitration, and incident thereto, must be included in the Award of the Arbitrator, and, if not so included, the Arbitrator cannot grant them to the Party entitled by a subsequent Certificate. If it were competent for the Arbitrator to grant such subsequent Certificate, the Amount of such Costs could not be enforced by a Rule under the 1 & 2 Vict. c. 110, s. 18, the Liability of the Company to pay such Costs being contingent on the Amount offered by the Company. that the amount of compensation might be ascertained by arbitration. In January, 1848, Mr. Quick appointed an arbitrator; and on the 27th of the same month the Company appointed their arbitrator. No umpire was appointed by the arbitrators, but the railway commissioners nominated one, under the provisions of the Lands Clauses Consolidation Act. The parties having attended, the umpire made his award, which, after setting out the necessary preliminary facts, proceeded as follows:-"I do award, decide, and determine, that the said Company shall pay to the said James Brannan Quick, his executors or assigns, the sum of 517. 10s., as and for full compensation for all damage and detriment sustained by him, the said James Brannan Quick, in respect of the said matters so referred to me, or by the exercise by the said Company of the powers contained in the said acts, or either of them, the acts authorising the Company to proceed). And I do hereby settle the costs of and incident to my umpirage and award, including the costs of the said James Lockyer, the arbitrator appointed for and on behalf of the said James Brannan Quick, at the sum of 367. 13s. 6d., which said sum is to be paid according to the provisions contained in the Lands Clauses Consolidation Act." On the 6th June, 1848, the Company paid the sum of 51. 10s., the amount awarded by the umpire for compensation, but refused to pay the claimant his costs of the arbitration. The claimant applied to one of the Masters of this court to tax the costs; but, on an objection taken to his jurisdiction to entertain the matter, he refused to interfere. Application was then made to the umpire for the like purpose, who made an to attend, on the ground that the powers of the umpire appointment. The solicitors to the Company declined had ceased. The umpire, notwithstanding, proceeded in their absence, and settled the costs at 321. 2s. 4d., and gave the following certificate: In the matter of James Brannan Quick and the London and Northwestern Railway Company. I hereby certify, that I have settled the costs of the above claimant of this arbitration, and incident thereto, at the sum of 321.28.4d." On the 29th May, 1848, the submission to arbitration was made a rule of court, under sect. 36. The Com taking before they have issued their warrant to the sheriff to hereinafter contained, stating in such notice the nature of the summon a jury, in respect of such lands, under the provisions interest in respect of which such party claims compensation, and the amount of the compensation so claimed, the same shall be so settled accordingly.' Sect. 33 enacts, " that, before the arbitrator or umpire shall enter into the consideration of any matters referred to him, he shall make and subscribe a declaration faithfully and honestly, and to the best of his skill and ability, to hear and determine the matters referred to him, which declaration shall be annexed to the award, when made; and if the arbitrator or umpire, having made such declaration, shall wilfully act contrary thereto, he shall be guilty of a misdemeanour." This was a rule calling upon the London and Northwestern Railway Company to shew cause why they should not pay to James Brannan Quick the sum of 321. 2s. 4d., the costs of the arbitration, and incident thereto, pursuant to a rule and certificate made between the said James Brannan Quick and the said Company, together with the costs of the application, under the following circumstances:-In the year 1846, Mr. James Brannan Quick, the claimant, became possessed of two houses near Chalk Farm-bridge, on the line of the London and North-western Railway Company. About the month of September in that year the Railway Company commenced pulling down the bridge then erected Sect. 34 enacts, "that all the costs of any such arbitration, over the railway, preparatory to adding two lines of and incident thereto, to be settled by the arbitrators, shall be rails to the railway, and erecting a bridge of much larger trators shall award the same, or a less sum than shall have been borne by the promoters of the undertaking, unless the arbispan, in order to cover four lines of rails. This bridge offered by the promoters of the undertaking, in which case each was completed in May, 1847, when Mr. Quick dis-party shall bear his own costs incident to the arbitration, and covered, that, in doing so, the road which formerly the costs of the arbitrators shall be borne by the parties in led to his premises had been raised nearly two feet, and equal proportions." thus injured the approach to his houses. Application was made to the Company for compensation, but they declined to give any; whereupon Mr. Quick gave the requisite notices, under the 8 & 9 Vict. c. 18*, in order *The following clauses of the 8 & 9 Vict. c. 18, were referred to as most material:: Sect. 23 enacts, "that, if the compensation claimed or offered in any case shall exceed 50%., and the party claiming compensation desire to have the same settled by arbitration, and signify such desire by notice in writing to the promoters of the under Sect. 36 enacts, "that the submission to any such arbitration may be made a rule of any of the superior courts, on the application of either of the parties." Sect. 67 enacts, " that, if the arbitrators shall determine that the sum so deposited was sufficient, the costs of and incident to such arbitration, to be determined by the arbitrators, shall be in the discretion of the arbitrators; but, if the arbitrators shall determine that a further sum ought to be paid or deposited by the promoters of the undertaking, all the costs of and incident to the arbitration shall be borne by the promoters." pany still refusing to pay the costs, the present rule was obtained; against which 1 but, when once made, the defect cannot be supplied. (Ward v. Deane, 3 B. & Adol. 234). The Bovill now shewed cause.-This question depends en- Watson, Q. C., and Hoggins, in support of the rule. tirely on the words of the Lands Clauses Consolidation-It is not disputed that we are entitled to costs. Act. By sect. 23, if the compensation claimed exceed arguments on the opposite side tend to this, and the affi50%, and the claimant desires that the amount shall be davits prove we are entitled. It amounts to this-if costs settled by arbitration, it is compulsory on the Company are not inserted in the award, we are not entitled. to adopt that course. Sect. 33 provides the mode in There is no question of mistake on the part of the which the arbitrator shall be appointed, and requires umpire; it was the only mode of assessing the amount him to make a declaration before entering upon the of costs; the umpire could not determine it upon the duties of his office. This is not an application to set award. The question turns on the words of the Lands aside the award, for the arbitrator has awarded a sum Clauses Consolidation Act. [They referred to sects. by way of compensation, which has since been paid-21, 23, and 25.] Throughout the act it appears the both parties, therefore, have adopted his award; but an arbitrators or umpire are to settle the matters in disapplication for costs arising out of the award, upon a pute. The dispute here is the costs of the reference certificate of the arbitrator, when in fact his powers had and the costs of the arbitration, [they read sect. 34,] ceased and he was functus officio. It will be observed, which are dependent on the value of the interest and that, by the section (23) directing a reference, the arbi- damage, as found by the award, the costs following the trators and umpire do not derive their powers by con- result as of course, if within the provision of the 34th sent of the parties, but by force of the act, which re- section. The only difference in this from ordinary quires them to settle the costs; and a declaration must cases is, that, instead of being taxed by the Master, be made by the umpire for the due performance of his they are" to be settled by the arbitrators." The case office, attaching a penalty if he misconducts himself. of Morgan v. Smith, referred to by the opposite side, It is manifest, the true construction, from the nature of has no bearing on the point. That was the case of a the appointment, is, that he must settle all matters by common reference. All it decides is, that, when the the award: the moment that is done, all his powers arbitrator has finished, he is functus officio. It cancease. Sect. 34 states, that all the costs of any such not be said that these costs are included in the award. arbitration, and incident thereto, "to be settled by the The umpire specifies the costs "incident to the umarbitrators," shall be borne by the promoters, unless pirage and award, and those of the arbitrator," which &e. It is clear that, under these words, it is the duty clearly is limited alone to his personal fees. The 34th of the umpire or arbitrator to settle the amount of his section says, "all the costs of any such arbitration, costs by his award. In Morgan v. Smith, (9 Mee. & and incident thereto." That would include the costs W.427), where, by an order of Nisi Prius, the costs of of the claimant and the award, which is confirmed by the cause were to abide the event, and the costs of the the latter part of the section, which provides, "that, reference and award to be in the discretion of the ar- unless the arbitrators shall award the same, or a less bitrator, who was to ascertain the same, the arbitrator sum shall have been offered," &c., each party shall directed the costs of the reference and award to be paid bear his own costs incident to the arbitration. There by the defendant, but omitted to ascertain the amount cannot be the least doubt what it means; for, if the of the costs. It was held by the Court that the arbi- claimant was not entitled to these costs, the award trator was bound to ascertain and determine the costs of would have been silent as to them, or directed that the reference and award. Here the umpire has, in they should be borne by the parties in equal proporfact, ascertained some portion of the costs, at all events. tions. [Erle, J.-According to your argument, that It cannot be assumed that the sum of 367. 138. 6d. did not was an excess of authority.] May be it was. [Erle, include the costs of the reference. Even supposing the J.-There seems to be no general power to compel umpire had made a mistake, the Court would not re- payment of costs under the statute. By sect. 53 a ceive an affidavit to shew what the intention was. warrant of distress may issue; and in claims before (Phillips v. Ecans, 12 Mee. & W. 309; Hagger v. Baker, justices, under sect. 24, the justices are empowered to 14 Mee. & W.9; Gordon v. Mitchell, 3 J. B. Moore, settle and enforce the amount.] By sect. 35, the pro241). But it is not even suggested that such is the case: moters of the undertaking are to take up the award, the only ground of complaint on the affidavit appears to and at their own expense furnish a copy to the other be, that, since making the award, the umpire has made party, and also produce the same, if required. Sect. 36 a judicial decision as to payment of costs. It may be gives a general authority to the Courts to enforce the put on either ground. Supposing it to be shewn that award of the arbitrator, by making it a rule of Court: the costs were not included, there are authorities on therefore, a rule, under the 1 & 2 Vict. c. 110, s. 18,1 which it has been held the Court will not interfere, may issue, as upon an allocatur. (Jones v. Williams, unless the defect appear on the face of the award. On 11 Adol. & Ell. 175; Same v. Same, 8 Mee. & W. 349). the other hand, if the umpire was the person to assess [Erle, J.-Can you have this rule in any case where you the costs, it is binding though he has made a mistake. cannot have an attachment?] It is submitted, that, (Anon., 1 Chit. 38). Here the umpire, after making wherever the rule can be made a rule of Court, you his award, has, at a subsequent date, attempted to do can have such a rule. [Erle, J.-It is quite clear the something more than he could when his power had arbitrator must settle the costs some time or other. ceased. The certificate is in the nature of a further The question is, whether before or after the award.] award. It is clear an arbitrator cannot make two The Master may tax costs at any time the parties go awards. There is another objection also to this certi- before him. [Erle, J.-The Master is a continuing ficate. It does not appear that there is any order to officer. The arbitrator is functus officio the moment pay. A certain sum for costs is awarded; but whether the award is made.] The arbitrator is a ministerial the Company are to pay, depends on the words of the officer to carry out the object of the statute, and his 34th section. The words are, that the costs shall be duty is not complete until he disposes of the question borne by the promoters of the undertaking, unless the of costs. The umpire, having made his award, in arbitrators shall award the same or a less sum than shall which he disposed of the question of compensation, is have been offered by the promoters of the undertaking. requested to give an appointment to tax the claimant There is nothing to shew, on the face of this certificate, his costs, which he does. In answer to this the Comwhether the Company are liable to pay these costs. If pany say "You are functus officio." Until the whole the umpire was bound to include these costs in his intention of the act of Parliament is carried out, he is award, the omission might render the award invalid; not functus officio. This was the view taken of the office of arbitrator in The Great North of England, Clarence, and Hartlepool Junction Railway Company v. The Clarence Railway Company, (1 Coll. C. C. 507); Barker v. The North Staffordshire Railway Company, (12 Jur. 324). The arbitrator is bound, under sect. 34, to award these costs to Quick, if the sum exceeded the amount offered by the promoters. The subsequent determination of the amount of the costs was the same as an allocatur of the Master upon taxation of costs. [Erle, J.-It does not anywhere appear that the sum awarded was more than that offered.] The fact of costs having been awarded by the umpire is sufficient to shew, that, if the sum awarded had not exceeded the amount offered, there would have been no mention of costs. The award, being under a statutory provision, must be construed with reference to the intention of the framers of the act. Cur. adv. vult. On a subsequent day, (Feb. 24), the following judgment was delivered by WIGHTMAN, J., (for Erle, J.)-In this case, the claimant applied for a rule on the Company to pay his costs of an arbitration, on affidavits stating, by implication, that the sum awarded was greater than any sum previously offered, and that the arbitrator had, by a certificate, settled the amount of such costs; and he contended, that the provisions relating to arbitration were the terms of a submission under the statute, and that such terms were a part of the rule of Court when the submission was made a rule of Court; and that this was the proper mode of enforcing performance of the provision relating to costs in the 8 & 9 Vict. c. 18, s. 34. To this application two answers have been given, each of which is sufficient. First, if it be true that the provision in this section has become part of the rule of Court, yet, when the liability depends on ascertaining whether a sum had been offered equal to or greater than the sum awarded, such a conditional liability cannot be enforced by a rule to pay the money. Secondly, the provisions in this section impose on the arbitrators the duty of ascertaining whether the right to costs arises, and of including it in their award when it exists. It is generally true, that arbitrators are to decide by award all that is left to their decision. Although the amount of compensation is the primary subject for decision, the amount of costs is a secondary subject, and may be well included in the same award. It is conceded, that the costs of the arbitrators should be settled in the award, but the costs of the claimant are given by the same clause which gives the costs of the arbitrators; and the intention of the Legislature appears to be, that the right on the part of the claimant to the costs and the amount should be settled in the same way and by the same instrument as the costs of the arbitrators. When the amount of compensation is referred, under sect. 68, after a sum has been deposited, a conditional right to costs, to be settled by the arbitrators, is given, if the sum awarded exceeds the sum deposited. In this case, such costs would obviously be included in the award, seeing that the relation of the sum awarded to the sum deposited must be apparent to the arbitrators when making their award. By analogy, the conditional right, under the section now in question, should also be included in the award, the arbitrators having ascertained that that condition exists. The construction is confirmed by the consideration that the remedy for obtaining payment of costs included in the award is easy, while the process of obtaining a certificate of settlement of costs from persons who were arbitrators, and who are not to decide whether they are due, and of applying for a rule on affidavits of essential facts, is, at all events, incomplete, anomalous, and, in my opinion, not legal.-Rule discharged, without costs. COURT OF COMMON PLEAS.-HILARY TERM. DODD v. WIGLEY.-Jan. 29. County Court-9 & 10 Vict. c. 95, s. 128-Suggestion to deprive a Plaintiff of Costs-Affidavit. The Affidavit in support of a Rule for a Suggestion to deprive the Plaintiff of his Costs, under 9 & 10 Vict. c. 95, stated, "that the Cause of Action arose, in some material Point, within the Jurisdiction of the W. County Court, in which the Defendant dwells and carries on Business, and that the Goods, except to the Amount of 10s., were delivered to the Defendant at the U.Club-house, which is within the Jurisdiction of the W. County Court, and is the Place where, before and at the Commencement of this Suit, the Defendant was and is employed, and dwells and carries on his Business; and that neither the said Plaintiff nor the Defendant is an Officer of the said W. County Court, nor was any Officer of the said County Court a Party concerned in the Matter in question in this Cause:". Held, that the Affidavit was insufficient, as it did not shew that the Defendant dwelt or carried on his Business, at the Time of the Action brought, within the Jurisdiction of the W. County Court; and that neither the Plaintiff nor the Defendant was an Officer of the County Court at that Time. Debt for 37. 4s. 3d., for work and attendance of the plaintiff as a surgeon and apothecary, for medicines and goods sold and delivered, and on an account stated. Plea, never indebted. At the trial, before the Secondary of London, on the 1st December, 1848, a verdict was given for the plaintiff for 27. 10s. Judgment was signed on the 9th January, 1849. Joyce, on a former day, obtained a rule calling on the plaintiff to shew cause why the final judgment should not be set aside, and why the plaintiff should not forthwith bring in the record in this action, and the defendant be at liberty to enter a suggestion thereon to deprive the plaintiff of his costs, the verdict found for him on the trial being for less than 20%., for recovery of which a plaint might have been entered in a county court, pursuant to the stat. 9 & 10 Vict. c. 95, s. 128. The material parts of the defendant's affidavit, on which the motion was founded, were as follows:That the cause of action herein did arise, in some material point, within the jurisdiction of the Westminster County Court of Middlesex, in which the defendant dwells and carries on his business; and that all the medicines, except to the amount of 10s., were delivered to the defendant at the Union Club-house, Trafalgar square, Middlesex, which is within the jurisdiction of the Westminster County Court, and is the place where, before and at the commencement of this suit, the defendant was and is employed, dwells and carries on his business; and that the plaintiff does not, nor did he at the time of the commencement of this suit, dwell more than twenty miles from the defendant; for that the plaintiff is, and then was, a surgeon dwelling and carrying on business at the Westminster-bridge-road, Lambeth, in the county of Surrey, and that the defendant is a clerk to the Union Club, and resides and dwells at the Union Club-house aforesaid, which is within the jurisdiction of the said Westminster County Court of Middlesex, and the places of residence last aforesaid are less than two miles from each other; and that all the items, except to the amount of 10s., were, by the said plaintiff's witnesses, proved to have been so delivered to the defendant at the Union Club-house aforesaid; and that neither the said plaintiff nor the defendant is an officer of the said Westminster County Court of Middlesex, nor was any officer of the said county court a party, directly or indirectly, concerned in the matter in question in this cause. G. T. White (Jan. 29) shewed cause.-First, the defendant's affidavit is insufficient: it does not negative |