Rowley v. Young

3 Day 118

Opinion

By the Court,

Swift, Trumbull, Smith and Baldwin, Js.

dissenting. The cost, which arose in prosecuting the action at law, before the submission, and the cost which arose after the submission, as claimed in this action, amount to a sufficient sum to bring this case within the jurisdiction of the superior court. And if the plaintiff can recover for both these claims, the decision was right.

It has been long settled, that the cost arising under the submission may be recovered in this form; and we are of opinion, that the claim for the antecedent cost rests on the same principle. The cost in both cases arose in preparing the case for trial, and must have followed the award. And whether it arose under the submission, or whilst the case was depending in court, and was sent to the arbitrators by the submission, cannot change the nature of the claim, or vary the injury done to the parly by the revocation. It would be manifestly unjust, to allow a party to induce his opponent, under the faith of a submission, to give up his claim for cost before the court, and to incur a new expense, and then deprive him of this claim by a revocation.

Judgment affirmed