Chapin v. Boody

Bell, J. It is settled here that arbitrators, appointed by bond or agreement of the parties, have authority to adjudge costs, though no mention is made of the costs in the submission. Spofford v. Spofford, 10 N. H. Rep. 254. And referees, under a rule of court, may award upon the costs of the reference and the costs of the suit, because in both cases a submission of the cause of action embraces, as an incident, the costs which may arise in the case, as well as those which have arisen. Joy v. Simpson, 2 N. H. Rep. 179; Brown v. Mathes, 5 N. H. Rep. 230; Johnson v. Noble, 13 N. H. Rep. 286; School District v. Aldrich, 13 N. H. Rep. 140; Chase v. Strain, 15 N. H. Rep. 535. [287] It has been held that to render the award of arbitrators valid, it must be an adjudication of all the matters submitted. Varney v. Brewster, 14 N. H. Rep. 49. And it must not embrace matters not submitted. Thrasher v. Haynes, 11 N. H. Rep. 429; Adams v. Adams, 8 N. H. Rep. 82; Richardson v. Huggins, 3 Foster’s Rep. 106. It is, of course, ordinarily presumed that referees have considered and decided the matters submitted to them, and that they have not assumed to decide upon matters not referred do them. Joy v. Simpson, 2 N. H. Rep. 179; Parsons v. Aldrich, 6 N. H. Rep. 264; Richardson v. Huggins, above. To carry out these principles, it must be inferred that the referees have decided the question of costs, and the prevailing party is entitled to recover no more costs than have been actually awarded him. Before the passage of the Revised Statutes, this question would not have been open to any doubt. The law was understood to be, that unless costs of court were awarded by the referees, they could not be allowed. The usual and well settled form of awards was, “ and costs of reference taxed,” &c., “ and costs of court taxed,” &c., or “ to be taxed by the court.” Brown v. Cochran, 11 N. H. Rep. 199. If costs of court were not allowed, it was usual merely to omit any mention of them. A question arose upon this point in the case of School District v. Aldrich, 13 N. H. Rep. 139, and it was held that costs did not follow an award of damages as an incident. This was before the passage of the Revised Statutes. The general principle adopted in this and the neighboring States, where awards of referees constitute the basis of judgments, is, that judgment is to be entered according to the report of the referees. Thus, in Commonwealth v. Pejepscot Proprietors, 7 Mass. Rep. 417, Sedgwick, J., says — “ We have two modes of submission to arbitration, besides those authorized by the common law; one by a rule before a justice of the peace, [288] the other by a reference of an action in court. ' In both, the award of the referees is reported to the court. If the report is accepted, the consequence is a judgment in conformity to it. There can be no variation from it.” If the referees make an' award, concerning the costs of a suit, the judgment must conform to it. Nelson v. Andrews, 2 Mass. Rep. 164; Baron v. Crandon, 15 Pick. 80; Buckland v. Conway, 16 Mass. Rep. 396. And where by statute the costs are limited in certain cases to one fourth of the damages, the costs allowed by réferees will not be limited. Moore v. Heald, 7 Mass. Rep. 467. It was very clear before the Revised Statutes, that if no costs of reference, or if no costs of court, were awarded, no judgment could be rendered for them; in other words, it was directed by the law that no such costs should be allowed. When those statutes, then, provided that costs should follow the event of every action, unless otherwise directed by the law, or by the court, this provision made no change in the previously existing law, as to costs upon awards of referees; on the contrary, it made that, among other -cases where the law was then settled otherwise, an exception to the general rule then prescribed; and judgments must still be' entered upon awards as they would have been before. If the question before us was one of convenience merely, we think it would not be judicious to make a change in the forms of awards, so as to require costs to be disallowed in express terms, where heretofore they have been merely omitted. It would be long before it would be generally understood, and many errors would be made in consequence ; while we perceive no advantage likely to result from the change. Motion for costs denied,