Van Alstyne v. Wimple — 4 Cow. 547

Majority

p. 547

Van Alstyne against Wimple.

Headnote

A cause was tho^artL to arbitrators, who awarded costs of suit, taxed ex parte sionor.COmiOn motion for re-taxation, held, that ího causo being out of court, they had “rollover °th8 costs upon summary ap-

also, t!iat the taxatiou would not bo conclusive j¡¡0an award,

This cause had been commenced in this Court, but was, pursuant to agreement of the parties, submitted to arbitrators by a general submission of all matters in difference : J ° _ _ . _ - . __r. . and the arbitrators had {inter aha) awarded that Wimple should pay to Tan Alstyne the costs of this suit, ¿o be taxed. Tan Alstyne had procured them to be taxed by a commissioner ex parte, and without notice to Wimple.

G. C. Bronson, moved for a retaxation.

J. A. JSpencer, contra, opposed this, on the ground that the cause was out of Court by the submission and award,

Bronson, in reply, admitted this to he so ; hut it did not follow that the Court would deny a retaxation. They will not do this, as between attorney and client, though long after a cause is ended; because the taxation would be conclusive between them. So here the taxation will be final, and not inquirable into in an action on the award. The items of the bill are never inquirable into at the Circuit. The award is good as to the costs. Though the arbitrators cannot in general, refer the amount of a demand to a third person for liquidation, yet a bill of costs is an exception.

By the submission of these parties without a rule, the cause is out of Court; and there is no provision that it should be made a rule. Without saying whether the taxation can have any effect, it is clearly not such an official one as will shut out all inquiry at the Circuit, in an action upon the bond or award. The submission deprives us of summary jurisdiction over the costs. The right of taxation, as between attorney and client, stands upon a different ground, viz. the power of the Court over their own officers, The motion must be denied.

Motion denied.^[1]

(a) (a) Chapman v. Lansdown, (1 Anstr. 273,) S. P.