IN THE THIRD YEAR OF GEO. IV.

tiff being dissatisfied with such award, caused an application to be made to the Court, that it might be referred back to the arbitrator to reconsider his award; upon which application the Court granted a rule to shew cause, which upon being shewn, they were of opinion that they had no authority to make the rule absolute, unless the defendant consented thereto, which was refused; but at the request of the plaintiff's counsel, the Court thereupon ordered that the rule or order of reference should be discharged, and that the verdict entered for the plaintiff, subject to such award, together with the said award, should severally be set aside.

The plaintiff afterwards gave notice of trial, and the cause again proceeded accordingly on the original pleadings, at the Sittings after Michaelmas Term, 1820, when a verdict was found for the plaintiff, for the amount of the first instalment on the principal bond. Upon application to the Prothonotary by the plaintiff to tax his costs upon the postea, he refused to allow him the costs of the original trial on which the reference was made, the arbitrator's award having been set aside at the instance of the plaintiff as before stated.

Mr. Serjeant Hullock, on a former day in this Term, obtained a rule nisi, that the Prothonotary might review his taxation; and observed, that the practice of this Court differed from that of the King's Bench; for here, if a new trial be granted, and the rule be silent as to costs, if the verdict on the second trial goes the same way as the first, the party succeeding is entitled to the costs of both. So, in the case of a remanet, the costs of the first assizes abide the event of the trial, and must be paid by the party who fails (a): and when a cause is referred, but no award is made, and it is afterwards tried, costs are

(a) See 4 Burr. 1988.

1822.

PAYNE

V.

BAILEY.

1822.

PAYNE

V.

BAILEY.

allowed as upon a remanet. Here, the order of reference was discharged, and the award set aside; the parties were consequently put in the same situation as if no award had been made, and therefore the plaintiff was entitled to the costs of both trials, a verdict having been found for him in each. The rule laid down by the Court in Burchall v. Ballamy (a) establishes the principle, that "in all cases where a cause goes down to trial, and goes off upon any occasion, without the fault, contrivance, or management of the parties, and is afterwards brought down again to trial; the costs of such former abortive going down to trial shall be taxed and allowed to the party finally prevailing, in the same manner as if the cause had gone off upon a remanet." Independently of that rule, the case of Poole v. Selwood (b) is precisely in point, where the Court of Exchequer held, that if a cause come on for trial, and be referred, and the arbitrator's award in favour of the plaintiff be afterwards set aside, so that the cause is in consequence subsequently tried, the plaintiff, if he obtain a verdict, will be allowed the costs of the former trial-and here, the mistake of the arbitrator cannot be ascribed to the fault, contrivance, or management of either of the parties in the cause.

Mr. Serjeant Vaughan shewed cause in the first instance, and submitted that the Prothonotary had exercised a sound discretion. In point of fact, there has been only one trial; the subsequent instalments on the bond became due after the verdict found for the plaintiff at the first trial, and before the arbitrator had made his award; and as those instalments were altogether omitted by the arbitrator in such award, the plaintiff himself sought to set it aside, although it was made in his favour; he therefore rendered it abortive by his own act; and it

was through his conduct or management alone that the cause went down to a second trial. Besides, the Court merely directed that the award should be set aside, but made no order for a new trial. The proceedings in this case bear a strong resemblance to a special case which has been insufficiently stated, or where the jury have found an insufficient verdict; an in the case of The Worcestershire Canal Company v. The Trent Navigation Company (a), where the jury found a verdict on which the Court could give no judgment, and a new trial was granted; it was held, that the party ultimately succeeding was not entitled to the costs of the former trial. So here, the award has turned out to be insufficient and defective. This case cannot be assimilated to that of a remanet where the trial continues in progress, and the party succeeding is entitled to the costs of the whole; although the same principle applies where a cause has been referred, and no award has been made. Here, however, an award has not only been made in favour of the plaintiff, but it was set aside by his own act. That therefore distinguishes this case from Poole v. Selwood; as from the report of that case, it must be inferred, that the defendant moved to set aside the award, and thereby rendered it necessary for the plaintiff to have recourse to further proceedings. So where a venire de novo is awarded, the party succeeding is only entitled to the costs of the second or last trial. Lickbarrow v. Mason (b), Bird v. Appleton (c).

Mr. Serjeant Hullock, in support of the rule. If the arbitrator had awarded the plaintiff 50%, and it was inanifest that he should have allowed him 100l., the latter would clearly be entitled to move to set aside the award; and here it was admitted that the arbitrator had made a

(a) 2 Marsh. 475.- -(6) 6Torm Rep. 131.

-(c) 1 East, 111.

1822.

PAYNE

v.

BAILLY.

mistake, by omitting the instalments and sums secured by the principal bond. It was therefore absolutely necessary that a second trial should be had, and which was ascribable to the defendant alone, as he would not consent to refer it back to the arbitrator to reconsider his award. This case, therefore, must he governed by the rule laid down in Burchall v. Bellamy, which applies to this Court as well as that of the King's Bench; and in the Worcestershire Canal Company v. The Trent Navigation Company, both the plaintiffs and defendants were in fault; whilst here, the plaintiff was obliged to go down to a new trial, through the conduct or management of the defendant alone, in not agreeing to a second reference.

Lord Chief Justice DALLAS.-It has been admitted that the arbitrator has made a mistake in his award; and the plaintiff being dissatisfied, he applied to the Court that it might be referred back to him to reconsider his award; to which the defendant would not consent. The plaintiff, thereupon moved to set aside the award which the Court ordered; it was not, therefore, through his default that the cause went down to a second trial. The justice of the case would have been to allow the arbitrator to set the award right; which he would have done, if the defendant had acquiesced in referring it back to him. If the costs were in the discretion of the Court, I am at present strongly inclined to think that the plaintiff is entitled to the costs of both trials; but I wish to look into the case of Poole v. Selwood, or get a further account of what occurred in the Court of Exchequer. It is merely stated in the report of that case, that the award was set aside; and it does not appear whether it was at the instance of the plaintiff or defendant; although that would not make any material distinction.

Mr. Justice PARK.-The only question is, whether the

rule of this Court, as to where a party who succeeds on both trials is entitled to the costs of both, is applicable to the present case. In The Worcestershire Canal Company v. The Trent Navigation Company, Lord Chief Justice Gibbs said (a), that "the fallacy in the argument consisted in supposing that the defect in the former verdicts proceeded from the fault of the plaintiffs; but it was not more their fault than that of the defendants.” Here, however, there has been no default by the plaintiff'; but the error is attributable to the arbitrator alone.

Cur. Adv. Vult.

Lord Chief Justice DALLAS on this day delivered the judgment of the Court as follows:

We are of opinion that this cause must go back to the Prothonotary, for the purpose of his allowing the plaintiff the costs of the original trial. The award was set aside on account of a mistake of the arbitrator. There was no default by either of the parties to the cause; but the defendant would not allow the award to be rectified, by referring it back to the arbitrator. It appears to us that he improperly resisted it; in consequence of which the plaintiff was driven by necessity to a second trial. Taking, therefore, the conduct of both parties into consideration, we think that the plaintiff is entitled to the allowance of the costs of both trials.

Mr. Serjeant Vaughan applied for the costs of the re"ference.

But the Court observed, that they would not interfere in that respect; but that under the particular circumstances of the case, they would confine the Prothonotary

(a) 2 Marsh. 478.

1822.

PAYNE

. BAILEY.