Opinion
(June Term, 1867.)
1. An award of arbitrators, to whom a case of trespass q. c. f. was referred, that there was "no trespass," enables the court to dispose of the case, and should not be set aside for uncertainty.
2. When an award fails to dispose of the costs, each party must pay his own costs.
( Gibbs v. Beery, 13 Ire., 388, cited, distinguished and approved; Debrule v. Scott, 8 Jon., 33, cited and approved.)
TRESPASS quare clausum fregit, tried before Mitchell, J., upon an award of arbitrators, at a special term, 1867, of the Superior Court of CASWELL.
The defendant appealed from a judgment of the court setting aside the award. The facts are stated in the opinion.
Graham and Phillips Battle for appellant.
(366) Morehead, contra.
The award is certain to a common intent, and is equivalent to a verdict of not guilty, the judgment upon which carries costs. Gibbs v. Beery, 13 Ire., 388; Carter v. Jones, 4 Dev. Bat., 182; Moore v. Gherkin, Bus., 73; Miller v. Milcher, 13 Ire., 49. Judgment for costs after such decision was a matter of course. Arrington v. Battle, 2 Mur., 246, is to be distinguished from this under the rule, "expressio unius," etc.
The only point in the case is, "did the arbitrators make such an award as would be final between the parties?" Gibbs v. Beery, 13 Ire., 388, is conclusive against the award.
In the brief filed by Mr. Morehead for the plaintiff, it is stated that "the only point in the case is, Did the arbitrators make such an award as would be final between the parties, according to the submission?" And we are referred to Gibbs v. Berry, 14 Ire., 388.
The action is for a trespass on land. The order of reference is "Referred to the arbitrament and award of, etc., and their award to be a rule of court."
The award sets forth that they had run the lines between the plaintiff and defendant, and that there was "no trespass." But there is no award as to the disposition which is to be made of the suit, or as to the costs.
The case to which we were cited was an action of trespass also, and was referred to arbitrators. The award set forth the single fact that they had run and established the line between the parties, but it did not set forth whether there had or had not been a trespass, which was the very point in the case, and of course it determined nothing. The court said it was the duty of the arbitrators to make such a return as would enable the court to enter judgment. But the award directed nothing to be done by the parties, gave no damages to the plaintiff for the trespass, and did not find whether there was or was not a trespass. The award was not, therefore, final, or certain; not even certain to a common intent. But in our case the question is, whether there was or was not a trespass; and the award is, that there was "no trespass"; and that disposes, or enables the Court to dispose, of the whole case. If the award had been that there was a trespass, then it would have been necessary to find the damages. But the award that there was no trespass disposes of the case in favor of the defendant. And the judgment must be (367) for the defendant.
The award does not dispose of the costs; and a question arises as to the costs. The general rule is, that the party, in whose favor the judgment is, recovers his costs. But that is not the rule under awards. Unless the award directs how the costs shall be paid, the rule is, that neither party shall recover costs. Debrule v. Scott, 8 Jon., 73.
PER CURIAM. There is error.