making the award eventually fell upon the umpire, who awarded the losing party to pay to the other the costs "of the said umpirage and of this my award;" and that each party should "pay their own costs of the reference other than the costs of my said umpirage and of this my award." It was held that the costs of the two arbitrators formed part of the costs of the umpirage, and not of the reference (a).

Wherever the award is followed by a judgment—for instance, when the cause has been referred at nisi prius-the costs of the action are taxed upon the judgment, and recovered by the ordinary writs of execution; but in general the costs of the reference (as distinguished from the costs of the cause) are recoverable either by attachment or by means of an execution issued under Stat. 1 & 2 Vict. c. 110, s. 18, on a rule of Court ordering the payment of them (b), and which rule is granted upon the same facts and materials as an attachment would be granted (c); or they are recoverable by means of an action upon the submission and award.

In some cases, where the legality of the award is doubtful, the Court, although refusing to set aside the award, will not grant an attachment, but leave the parties to their remedy by action. Thus, where an arbitrator to whom a cause was referred, without any express power to direct a verdict in the action, awarded that a verdict should be entered for the plaintiff, with 40s. damages and costs, the Court refused to set it aside (d), but also, on a subsequent application, refused to grant an attachment for non-payment of the taxed costs (e).

When the arbitrator, having power over the costs of the reference and award, directs them to be borne, one moiety thereof by the plaintiff, and the other moiety by the defendant, and the successful party takes up the award and pays the

(a) Ellison v. Ackroyd, 20 L. J. (N. S.), Q. B. 193; 1 Bail Court Cases, 806.

(b) Jones v. Williams, 11 A. & E. 175; 4 P. & D. 217, S. C.;. and Jones v. Williams, 8 M. & W. 349; 9 Dowl. 702; Hawkins v. Benton, 2 D. & L.465. (c) See Creswick v. Harrison, 20

L. J. (N. S.), C. P. 56; and see the Chapter on the Recovery of Costs, post. (d) See Cock v. Gent, 13 M. & W. 364.

(e) Same case, 14 Id. 680; and see Jackson v. Clarke, M'Clel. & Y. 200; 13 Price, 28; Donlan v. Brett, 2 A. & E. 344; 4 N. & M. 854.

whole costs, he cannot recover the moiety of the costs from the other side as money paid to his use, at least unless the amount is fixed by the award, or ascertained by taxation (if the reference can be made a rule of Court); because, by the terms of such an award, all the costs on both sides are to be divided, for the award is not that each party is to pay his own costs of the reference and one moiety of those of the arbitrator, but one moiety of all brought into hotchpot; so that whether the plaintiff or the defendant would have anything to pay to the other, or how much, could not be ascertained until taxation (a).

So where the arbitrator (there being no action referred) directed the costs and charges attending the arbitration and award to be paid, two third parts thereof by the defendants, and the remaining one third part thereof by the plaintiff, it was held that the plaintiff could not recover his proportion on an allegation in the declaration that two third parts of the costs attending the arbitration amounted to a certain sum (specifying it), and that the defendants had not paid two third parts of the said costs; for the plaintiff ought to have stated how much the costs, when the whole, on each side, were brought into hotchpot, amounted to, which was the true meaning of the award (b).

The distinction between a reference at nisi prius, where a verdict is taken and a judgment afterwards signed, and a reference at an earlier stage of the cause, is not one which merely affects the manner of recovering the costs, but may become important in another way; for the right to recover costs at all, may depend upon it.

Thus, a distinction has been taken with regard to the effect of statutes depriving parties of costs in certain actions, between

(a) Bates v. Townley, 19 L. J. (N. S.), Exch. 399; and see Day v. Norris, 1 Dowl. N. S. 353; 11 L. J. (N. S.), Exch. 62, where three actions by the same plaintiff having been referred, the arbitrator awarded one moiety of the costs of the reference to be paid by the plaintiff and the other by the defendants, and the Master, on taxation, allowed

the attorney who acted for the defendants in all three actions, only one-third of his travelling expenses: it was held that he was wrong, as the costs should have been brought into hotchpot, the Master calculating the costs on both sides, and then dividing them.

(b) Kirk v. Unwin, 20 L. J. (N. S.), Exch. 345.

actions referred at nisi prius, where a verdict is taken for a sum, subject to being reduced or raised by the arbitrator, and cases where the reference takes place at an earlier stage, and the costs are to abide the event of the award. In the former case, the event which the costs are to abide, is the legal event of the judgment as it may be entered up by the award of the arbitrator; and in that case, if the verdict be entered for a sum not sufficient to carry costs without a certificate, and there is no certificate, (either from the arbitrator not having the power, or neglecting to exercise it,) the plaintiff would not be entitled to his costs (a).

But where an action for diverting a watercourse, within the operation of Lord Denman's Act, 3 & 4 Vict. c. 24 (b), was referred in an early stage of the suit, by order of a Judge at chambers, the costs of the suit to abide the event of the award, and the arbitrator found for the plaintiff, with nominal damages it was held that the plaintiff was entitled to full costs, although there was no certificate, and the arbitrator had no power to give one; for the action having been brought to try a right, and not damages, it must be considered that the parties intended by the terms of the submission, that he in whose favour the decision was given, should be paid by the other party the costs of the suit (c).

The same power to certify is, however, now generally given, by the order of reference at nisi prius, to an arbitrator, as is possessed by a judge at nisi prius; and the Courts will not interfere with the discretion of the arbitrator in the exercise of this power (d).

This distinction in the period of the reference may be further illustrated by cases under the Stat. 43 Geo. III., c. 46, s. 3, which provided that where the plaintiff did not recover the amount for which the defendant was arrested or held to bail, the defendant should be entitled to costs of suit, provided it appeared to the satisfaction of the Court that the arrest

(a) Swinglehurst v. Altham, 3 T. R. 138; Ward v. Mallinder, 5 East, 489; Reid v. Ashby, 22 L. J. (N. S.), C. P. 215.

(b) See ante, Chapter VIII.

(c) Griffiths v. Thomas, 15 L. J. (N. S.), Q. B. 336; 4 D. & L. 109. (d) Bury v. Dunn, 1 Dowl. & L.

141.

was without reasonable or probable cause.

Where a cause was referred before it came to trial, and the costs directed to abide the event, and the arbitrator awarded the plaintiff a less sum than that for which the defendant was arrested, it was held that the amount was not recovered within the meaning of the statute, so as to entitle the defendant to the costs (a). And the same was held where the order of reference directed that the costs should abide the event in like manner as upon a verdict, those words not giving the Court any power (b). But where a verdict was taken at the trial, subject to a reference, and a similar award was made, then the defendant was held to be entitled to his costs under the above statute (c). So, also, under the corresponding section of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 86 (d).

So where, in replevin, the defendant avowed as landlord for rent in arrear, and before it was at issue the cause was referred to arbitration, the costs to abide the event, and the arbitrator awarded in favour of the defendant, it was held that the latter was not entitled to double costs under the Statute 11 Geo. II. c. 19, s. 22 (e).

By the Practice Rules of Hilary Term, 1853, "costs may be taxed on an award, notwithstanding the time for setting aside the award has not elapsed" (f).

Where the arbitrator finds the amount of the costs of an award, it is not necessary that they should be taxed by the Master previously to the Court ordering them to be paid (g).

(a) Keene v. Deeble, 3 B. & C. 491. (b) Holder v. Raith, 2 A. & E. 445 ; 4 N. & M. 466, S. C.

(c) See Jones v. Jehu, 5 Dowl. 130. (d) Deere v. Kirkhouse, 20 L. J. (N. S.), Q. B. 195; 1 Bail Court Cases, 783.

(e) Gurney v. Buller, 1 B. & Ald.

670.

(f) Practice Rules, Hil. T. 1853 (r. 170).

(g) Dixie v. Alexandre, 1 L. M. & P. 338; and see Threlfall v. Fanshawe, Id, 340, ante, p. 421.

CHAPTER LI.

COSTS OF PROCEEDINGS BY MANDAMUS.

LEAVING for a time the consideration of costs of an action in its various stages, we shall now proceed to notice the costs of proceedings in the Superior Courts in other matters than actions; and first of the costs of Mandamus.

The writ of mandamus issues from the Court of Queen's Bench. It commands him to whom it is directed to do some particular act, or show to the Court cause to the contrary, and to make a return to the writ on a specified day. It must state facts which show that the party to whom it is directed is in point of law bound to do what it commands. It is delivered to him, and if the facts suggested in it be true in fact, and sufficient in point of law, he should do what the writ commands, and make a return that he has done it. If he denies the material facts suggested by the writ, or any of them, he states such denial in his return to the writ as cause why he has not done the act commanded. If there are other facts not disclosed in the writ which show that there is no legal duty to do the act commanded, those facts are stated in the return as cause why the act has not been done. Formerly, if the facts suggested in the writ were insufficient in point of law, the course was to move the Court to quash the writ. If the facts stated in the return were insufficient as an answer, the course was in substance the same. If the return was frivolous, or clearly bad, the Court would quash it on motion; if arguable, it was set down in the Crown paper, and argued on a concilium. On such a motion or argument, however, the party making the return might fall back on the writ, and contend that it was insufficient. In these cases the judgment of the Court was not subject to the revision of a Court of