1797. SAUNDERS PITTMAN. leaves England. He has therefore brought himfelf into this dif- May 20th. 9 Eaft, 436. The general term cofts in a rule of reference, does not include the costs of that reference. BRADLEY V. TUNSTOW. By an order of the Chief Juftice, made with the confent of the parties, for referring this caufe to arbitration, it was ordered, "That the debt for which this action is brought, be referred to "F. C. Efq. to fettle and determine how much, or if any and "what fum is due to the Plaintiff from the Defendant, and that "for what fum he fhall find due, the Plaintiff fhall be at liberty "to enter up his judgment, and fue out execution for fuch fumm "fo found due, together with his coffs, provided the faid debt "fo to be fettled and afcertained amount to 40s. The arbitrator awarded 40l. 14s. for the debt, and cofts to be taxed by the prothonotary. His taxation amounted to a certain fum including the cofts of the reference; on which allocatur judgment being entered up by the Plaintiff, the Defendant applied to the prothonotary to strike out the cofts of the reference; who, on reconfidering the matter, difallowed them accordingly. Le Blanc Serjt. on a former day having obtained a rule nifi to fet afide the judgment for this irregularity, Shepherd Serjt. for the Plaintiff, contended, that where a caufe was referred to arbitration, and the Court directed the cofts of the caufe, to abide the event of the arbitration, and nothing was faid in the rule about the cofts of the reference, the cofts of the reference became part of the cofts of the caufe, and fo he understood the practice to be in the King's Bench. Le Blanc contrà, faid, That under the rule the cofts 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 cofts ought to be paid. by both parties equally, unless otherwife directed by the rule. (a) Cowp. 127. 2 Black. 953. Tidd's Practice in K. B. 545, 546. . EYRE as it EYRE Ch. J. It is impoffible to fay that the judgment in this cafe is irregular, for it follows the allocatur of the prothonotary. The question therefore is not properly brought forward, but is before us, we may as well decide it. The whole difficulty arifes from the fuppofed practice of the King's Bench. If that Court has fanctioned the practice of including the cofts of reference under a condition in the rule, relating to cofts 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 fuftained by both. A provifion for the cofts of reference being generally made in the rules, but omitted in the prefent inftance, is a ftrong argument to fhew that they were not here intended to abide the event of the arbitration. BULLER J. The general practice in drawing up these rules, is to diftinguish between the cofts of the reference, and the cofts of the caufe; the latter ufually abide the event of the arbitration, the former not. Here that diftinction is omitted, it is referred to the arbitrator to determine the fum due between the parties, and the cofts are to follow the event of his award. I am inclined to think the practice of the King's Bench, as fuggefted, to be right. Does not the term costs mean all cofts? I do not fee how to diftinguish between the cofts of the caufe, and thofe which arife in the progrefs of the caufe. All cofts which arife between the writ and the judgment, unless otherwife provided for as the caufe goes on, must be confidered as the cofts of the caufe. But as we have feen thefe cofts of reference amount fometimes to very hard fums, it might not perhaps be foreign to suppose, that they were purpofely omitted in this rule to avoid the poffibility of fuch expence. If there are any authorities on the fubject, I think we must be bound by them. HEATH J. I with an uniformity of practice to prevail in the two Courts. ROOKE J. If there be any cafe in the King's Bench to that effect, I think the cofts of the reference fhould abide the event of the arbitration; otherwife I fhould be of opinion with my Lord, that they ought not to be included. The prothonotary having been defired 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 cafe had occurred within his knowledge, where this question had arifen under the order of a Judge; yet that it was generally understood that 1797. BRADLEY v. TUNSTOW. 1797. BRADLEY ข. TUNSTOW. an arbitrator had no power to give the cofts of the award, unle's under a provifion inferted in the order of nifi prius. Per Curiam. As we find the practice of the King's Bench does not warrant the idea of including the cofts of the reference under the general term cafts, the Plaintiff must now move to reform his judgment by confent, and reduce it to the proper amount. But as the judgment was, ftrictly speaking, regular, and the Plaintiff was under the neceffity of oppofing this motion, we fhall not allow the cofts of this application. (a) (a) An award of "Cofts fuftained in the "action," does not include cofts of the re ference, Brotune v. Marsden and others. 1 H. Bl. 223. HOLLIS V. BRANDON. CLAYTON Serjt. moved for a rule to fhew caufe, why the De fendant fhould not be difcharged out of the custody of the Warden of the Fleet, on entering a common appearance, on the 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 caufe, is justly in"debted to this deponent in the fum off for work done "and performed by this deponent and his fervants in and about "the bufinefs of the faid Defendant, and for the faid 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 inftance and requeft." The Defendant had been arrefted on a bill of Middlefer and bailed, and afterwards furrendered himfelf to the King's Bench Prifon, from whence he was removed to the Fleet by habeas corpus before declaration delivered. On thefe facts the Court granted a rule to fhew caufe, but fuggefted to the Plaintiff that he might file a fupplemental affidavit. On the 16th, Shepherd Serjt. fhewed caufe against the rule, and contended that there was no neceffity for a fupplemental affidavit, as the original one was fufficiently pofitive. Clayton Serjt. in fupport of the rule. The affidavit was here intitled Edward Hollis Plaintiff and William Brandon Defendant, at a time when no caufe in fact exifted. An order was actually made in this very cafe, by one of the juftices of the King's Bench, for the discharge of the Defendant, but he having been removed to to the Fleet, the warden could not obey that order, and there- Shepherd Serjt, contra. This cafe may be diftinguished from that of King v. Cole. 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 William Brandon the Defendant. Befides, the word "Defendant" may be rejected as furplufage, for it is pofitively fworn that William Brandon was indebted. EYRE Ch.J. The idea of a fupplemental affidavit proceeded on a collateral ground: it was fuggefted with a view to afcertain who was meant by the perfon 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 defcription of the perfon indebted, the word "Defendant" is loofe and uncertain, and ought to be fupplied; but when the affidavit fays, "William Brandon Defendant," I fhould much doubt whether it would be bad, merely because it was intitled "Edward Hollis Plain" tiffand William Brandon Defendant," before the commencement of the caufe. Since the ftatute for fuing out bailable writs, it may be a queftion whether an affidavit to hold to bail be not in fact a commencement of the cause. Why is a writ confidered as the commencement of the cause before the parties are in Court? and yet it always is fo. This way of confidering it will not break in upon what has been said, that in an indictment for perjury, if the indictment ftate the perjury to have been committed "in an affidavit in a caufe," and there be no cause, the party cannot be 1797. HOLLIS v. BRANDON. convicted: but here I doubt whether the affidavit be not a commencement of the fuit. BULLER J. It has been faid that if the Plaintiff was indicted for perjury there might be a doubt whether he could be convicted on a fupplemental affidavit. Have not the Court jurifdiction? An application is made to them to difcharge the Defendant in the regular exercife of their jurifdiction: they require a fecond, affidavit to afcertain the debt: there can be no difficulty then in the affignment of perjury. The Court having taken time to inquire, Eyre Ch. J. this day faid: We have confidered this queftion, and have found, upon inquiry, that it is the fettled practice of the King's Bench, that in a motion for an information, if an affidavit be intitled in a caufe, it is rejected. We think the rule fhould be univerfal, for the only ground on which it is founded is, that it would be difficult if not impoffible to indict for perjury upon fuch an affidavit. We think alfo that the practice of both Courts fhould be uniform. (a) Subfequent to this, in the cafe of Clarke v. Cartborne, Tr.T.1797, the Court of K. B. confidered the practice of intitling athdavits to hold to bail too common to be deemed erroneous: and accordingly in two Rule abfolute without cofts (a). other cafes then before them, difcharged fimilar rules to the prefent: but at the fame time determined to make a rule of Court ordering that fuch affidavits fhould not be intitled for the future. Vide 7 T. R. 321. JOLLIFFE V. MORRIS. SHEPHERD Serjt. on a former day obtained a rule to fhew cause, why judgment as in cafe of a nonfuit fhould not be entered up in this cafe, for not proceeding to trial according to the Plaintiff's undertaking. The Court now inclining against him, on an affidavit of merits fhewn by Runnington Serjt., and a peremptory undertaking to try at the next affizes offered; Shepherd defired that payment of cofts for not proceeding to trial might be made a term of difcharging the rule. The Court feemed at first to doubt whether, if a party elected to move for judgment, as in cafe of a nonfuit, he did not thereby waive the cofts of not proceeding to trial; and if intitled to them, whether it was not neceffary to apply by a feparate motion; but 5 having |