Loud v. Hobart

Wilde, J. The question in this case is, whether the plaintiff is entitled to full costs. The counsel for the defendant contends, that by the Rev. Sts. c. 121, § 3, the plaintiff is entitled to no more than a quarter part of the debt recovered. But we are of opinion, that a judgment rendered upon the report of arbitrators is not within the statute. It was so decided in the case of Moore v. Heald, 7 Mass. 467, upon the construction of a similar provision in the statute of 1807, c. 123. So the provision does not extend to cases where the damages are reduced within the limits fixed by the statute, by reason of an account filed in set-off, unless it might be proved in payment of the plaintiff’s demand. So it was decided in Barnard v. Curtis, 8 Mass. 535, and in Gilman v. Burgess, 12 Mass. 206. These cases, we think, were decided according to the true construction of the former statute, and the same construction must be given to the Rev. Sts. c. 121. By the twenty-first section of that chapter, it is provided, that “ Nothing contained in this chapter shall take away or control the power of arbitrators or. referees, appointed by a rule of court or otherwise, from making such award concerning costs as justice and equity shall require.” It might, perhaps, be held, from the report of the arbitrator, that he intended to decide, that the plaintiff should recover full costs; because the costs were to be taxed by the court, and not to be limited to a quarter part of the debt. But however this may be, the section cited confirms the construction we give to the third section, as not extending to judgments ren [327] dered upon the report of arbitrators. We think it also appears with sufficient clearness, that the plaintiff’s claim was reduced below twenty dollars by the defendant’s counter claim; and although no claim in set-off was filed in court, yet it appears by the report, that it was considered by the arbitrator, and that the sum reported as due to the plaintiff was a balance of the plaintiff’s and defendant’s accounts. Upon either of these grounds, it appears to the court, that the plaintiff is entitled to full costs.