Opinion
January Term, 1813.
From Nash.
Question of costs. In an action of detinue, the parties refer the case to arbitration. The arbitrators award that the defendant shall deliver to the plaintiff the slave sued for, and that the plaintiff shall pay to the defendant the purchase money for the slaves; but were silent as to the costs of the suit: Held, that each party shall pay his own costs.
THIS was an application for a writ of supersedeas, to set aside an execution for costs. Battle had instituted two suits against Arrington, one in detinue and the other in trespass for false imprisonment. After issue joined, both causes were referred by the parties to arbitrators, who awarded that in the action of detinue Arrington should return to Battle the negro woman sued for and her increase, and that Battle should pay to Arrington the purchase money. In the action of trespass they awarded that Arrington should pay Battle £ 250 and costs. Arrington delivered the negro according to the award in the action of detinue, but refused to pay the costs, to obtain which Battle issued an execution. It was the object of the present application to set aside this execution. The affidavit and certificate of two of the arbitrators were filed, in which they stated their intention to have been that Arrington should pay the costs in both actions.
The only question that can arise here is with respect to the action of detinue. In that action the arbitrators directed the negro to be delivered up by Arrington, and a certain sum of money to be paid by Battle. Thus the rights of the parties with respect to the subject-matter of the suit were settled. This Court is not applied to set that award aside; there is no law which in a case situated as this is directs that either party shall pay the whole costs. Upon legal principles, then, it will follow that each party shall pay his own costs to the clerk, as for work and labor done. Those (247) costs being ascertained, the clerk is at liberty to issue an execution against each party separately. In the other action Arrington must pay the costs, because the arbitrators have said so.
Cited: Debrule v. Scott, 53 N.C. 74.