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1797.

SAUNDERS

PITTMAN.

leaves England. He has therefore bronght himself into this difficulty, by endeavouring to take an unfair advantage, and the Court will not consider itself obliged to put off the trial of a cause' for the accommodation of the Defendant, if the Defendant has not conducted himself fairly and candidly, and if he might have, had his witness.

Rule difeharged.

May 20th.

BRADLEY V. TUNSTOW. 9 Eaji, 436. The general

B term costs in a

Y an order of the Chief Justice, made with the consent of the rule of reference, parties, for referring this cause to arbitration, it was ordered, does not include

“ That the debt for which this action is brought, be referred to the costs of that reference. F. C. Efq. to settle and determine how much, or if any and

what sum is due to the Plaintiff from the Defendant, and that “ for what sum he shall find due, the Plaintiff shall be at liberty to enter up his judgment, and sue out exccution for such fim “ so found due, together with his colls, provided the faid dcbt “ fo to be settled and ascertained amount to 40 s.

The arbitrator awarded 40l. 145. for the debt, and costs to be taxed by the prothonotary. His taxation amounted to a certain fum including the costs of the reference; on which allocatur judgment being entered up by the Plaintiff, the Defendant applied to the prothonotary to strike out the costs of the reference; who, on reconsidering the matter, disallowed them accordingly.

Le Blanc Serjt. on a former day having obtained a rule nih to set aside the judgment for this irregularity,

Shepherd Serjt. for the Plaintiff, contended, that where a caufe was referred to arbitration, and the Court directed the costs of the cause, to abide the event of the arbitration, and nothing was said in the rule about the costs of the reference, the costs of the reference became part of the costs of the cause, and so he understood the practice to be in the King's Bench.

Le Blanc contra, faid, That under the rule the costs at law (a) only, followed the event of the award; and if the costs of the reference were intended to be included, the arbitrator ought to have awarded them, which he had not done; that as the reference was matter of mutual accommodation, the costs ought to be paid by both parties equally, unless otherwise directed by the rule. (a) Cowp. 127. 2 Black.953. Tidd's Practice in K. B. 545,546..

EYRE

1797

BRADLEY

TUNSTOW,

Erne Ch. J. It is imposible to fay that the judgment in this cate is irregular, for it follows the allocatur of the prothonotary. The question therefore is not properly brought forward, but as it is before us, we may as well decide it. The whole difficulty arises from the supposed practice of the King's Bench. If that Court has fanctioned the practice of including the costs of reference, under a condition in the rule, relating to costs generally, I do not feel myself at liberty to speculate upon the point. It appears however to me, that a reference being made for the convenience of both parties, the expences ought to be sustained by both. A provision for the costs of reference being generally made in 'the rules, but omitted in the present instance, is a strong argument to thew that they were not here intended to abide the event of the arbitration.

BULLER J. The general practice in drawing up thefe rules, is to distinguish between the costs of the reference, and the costs of the cause; the latter usually abide the event of the arbitration, the former not. Here that distinction is omitted, it is referred to the arbitrator to determine the fum due between the parties, and the costs are to follow the event of his award. I am inclined to think the practice of the King's Bench, as suggested, to be right. Does not the term costs mean all costs? I do not see how to diftinguish between the costs of the cause, and thofe which arise in the progress of the cause. All costs which arise between the writ and the judgment, unless otherwise provided for as the caufo goes on, must be considered as the costs of the cause. But as we have seen these costs of reference amount fometimes to very hard fums, it might not perhaps be foreign to suppose, that they were purposely omitted in this rule to avoid the possibility of such expence. If there are any authorities on the subject, I think we must be bound by them.

HEATH J. I with an uniformity of practice to prevail in the two Courts.

ROOKEJ. If there be any cafe in the King's Bench to that effect, I think the costs of the reference should abide the event of the arbitration; otherwise I Mould be of opinion with my Lord, that they ought not to be included.

The prothonotary having been desired to inquire concerning the practice of the King's Bench, on this day reported that he had been informed by the Mafter, that though no case had occurred within his knowledge, where this question had arisen under the order of a Judge; yet that it was generally understood that

1797.

BRADLEY

TUNSTOW.

an arbitrator had no power to give the costs of the award, un-
le's under a provision inferted in the order of nifi prius.

Per Curiam. As we find the practice of the King's Bench dces
not warrant the idea of including the costs of the reference un-
der the general term costs, the Plaintiff must not move to reform
his judgment by consent, and reduce it to the proper amount.
But as the judgment was, strictly speaking, regular, and the
Plaintiff was under the necessity of opposing this motion, we
shall not allow the costs of this application. (a)

(a! An award of “ Costs fustained in the ference, Brosune v. Marsder and others. " action," does not include costs of the re- I H. Bl. 223.

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If an affidavit to hold to bail he

C241

bad.

May 23d.

HOLLIS V. BRANDON. Poft. 228.

LATTON Serjt. moved for a rule to shew cause, why the De

fendant should not be discharged out of the custody of the entitled “ Pun- Warden of the Fleet, on entering a common appearance, on the “ eiff and De. “ fendant," it is ground of an irregularity in the affidavit, by which he was held

to bail.

The affidavit was intitled « Edward Hollis Plaintiff, and William Brandon Defendant,” and proceeded to state “ that William Brandon, the Defendant in this cause, is justly in“ debted to this deponent in the fum of £ - for work done “ and performed by this deponent and his servants in and about “ the business of the said Defendant, and for the said Defendant; " and for divers materials found and provided in and about the “ faid work; and for money lent and advanced to the faid “ Defendant at his fpecial instance and requeft.”

The Defendant had been arrested on a bill of Middlefer and bailed, and afterwards surrendered himself to the King's Bench Prifon, from whence he was removed to the Fleet by habeas corpus before declaration delivered.

On these facts the Court granted a rule to shew cause, but suggested to the Plaintiff that he might file a supplemental affidavit.

On the 16th, Shepherd Serjt. shewed 'cause against the rule, and contended that there was no neceflity for a supplemental affidavit, as the original one was sufficiently positive.

Clayton Serjt. in support of the rule. The affidavit was here intitled Edward Hollis Plaintiff and IVilliam Brandon Defendant, at a time wheni no caufe in fact exifted. An order was actually made in this very case, by one of the justices of the King's Bench, for the discharge of the Defendant, but he having been removed

to

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to the Fleet, the warden could not obey that order, and therefore the question is brought before this Court. In King v. Cole, 6 T. R. 640. the affidavit being intitled, “ R. King qui tam v. * T. Coles,” the Defendant was discharged on common bail. Aito in a case of Sir John Call Bart. v. before Afhhurst J. the Defendant was discharged on the same ground, and no objection made. This case is still stronger, as the afidavit was not only intitled with the names of the parties, but had the addition of Plaintiff and Defendant. It is a general rule, that a Defendant thall not be deprived of his liberty, unless the Plaintiff can be indicted for perjury if his affidavit be false. It must therefore be positive. There being a doubt in the present instance, whether an indictment for perjury could be maintained or not, the Court has given the Plaintiff an opportunity to file a supplemental affidavit, which he has not done. On the above grounds therefore I submit that the rule must be made abfolute.

Srepherd Serjt. contra. This case may be diftinguished from that of King v. Coli. There, the name of T. Cole was not added to the word Defendant in the body of the affidavit, whereas here the Plaintiff speaks of IWilliam Brandon the Defendant. Besides, the word “ Defendant” may be rejected as furplufage, for it is positively sworn that William Brandon was indebted.

EYRE Ch.J. The idea of a supplemental affidavit proceeded on a collateral ground: it was suggested with a view to ascertain who was meant by the person called Defendant. The Court understood that the affidavit was intitled, but that no name was added to the word “Defendant" in the body of it. If there be no other description of the person indebted, the word “Defendant” is loose and uncertain, and ought to be supplied; but when the affidavit says, Filliam Brandon Defendant," I should much doubt whether it would be bad, merely because it was intitled “Edward Hollis Plain“ tiffand William Brandon Defendant,"beforethe commencement of the cause. Since theftațute for fuing out bailablewrits, it may be a question whether an affidavit to hold to bail be not in fact a commencement of the cause. Why is a writ considered as the commencement of the cause before the parties are in Court? and ret it always is so. This way of confidering it will not break in upon what has been said, that in an indictment for perjury, if the indiament state the perjury to have been committed in an affi* davit in a cause,” and there be no cause, the party cannot be

D 3

convicted :

1797

HOLLIS

BRANDON.

convicted: but here I doubt whether the affidavit be not a commencement of the suit.

BULLER J. It has been said that if the Plaintiff was indicted for perjury there might be a doubt whether he could be convicted on a supplemental affidavit. Have not the Court jurisdiction ? An application is made to them to discharge the Defendant in the regular exercise of their jurisdiction: they require a second affidavit to ascertain the debt: there can be no difiiculty then in the assignment of perjury.

The Court having taken time to inquire, Eyre Ch. J. this day said: We have considered this question, and have found, upon inquiry, that it is the settled practice of the King's Bench, that in a motion for an information, if an affidavit be intitled in a cause, it is rejected. We think the rule should be univerfal, for the only ground on which it is founded is, that it would be difficult if not impoflible to indiet for perjury upon such an affidavit. We think also that the practice of both Courts should be uniform.

Rule absolute without costs (a).

(a) Subsequent to this, in the case of other cases then before them, discharged Clarke v. Caruthorne, Tr.T.1797, the Court finjar rules to the pretent: but at the same of K. B. considered the practice of intilling time determined to make a rule of Court athdavits to hold to bail too common to be ordering that such affidavits should not be deemed erroneous : and accordingly in two intitled for the future. Vide 7 T.R. 321.

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May 26th. .

The Court of
C. B. will make
the payment

SHEPHERD Serjt

. on a former day obtained a rule to fhew cause,

why judgment as in case of a nonsuit should not be entered corts for not pro- up in this case, for not proceeding to trial according to the Plain ceeding to trial, tiff's undertaking. a term of dif. charging a rule

The Court now inclining against him, on an affidavit of merits for ju igment as shewn by Runnington Serjt., and a peremptory undertaking to in case of a nonfuit.

try at the next aflizes offered;

Shepherd desired that payment of costs for not proceeding to trial might be made a term of discharging the rule.

The Court seemed at first to doubt whether, if a party elected to move for judgment, as in case of a nonfuit, he did not thereby waive the costs of not proceeding to trial; and if intitled to them, whether it was not neceffary to apply by a separate motion; but

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having

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