
    [392] BISHOP against WOODRUFF.
    ON CERTIORARI.
    On award to pay costs in five days, the party must pay them without waiting for the tax bill to be presented.
    Bishop had commenced a suit in the Supreme Court against Woodruff. After this suit had been depending some time, and before judgment has been obtained thereon, the parties agreed, by an instrument under seal, to submit to arbitrators, who should pay the costs accrued on said suit; and that Bishop should withdraw the suit if Woodruff abided the award of the arbitrators.
    The arbitrators awarded that Woodruff should pay the costs in five days. Woodruff did not pay the costs. After waiting some time, Bishop progressed in his suit, in the Supreme Court, and obtained judgment by default. On this, Woodruff commenced the action below before the justice; which was an action for breach of covenant on the agreement and award, which he set out, and averred that he was always ready to pay the costs when the taxed bill was presented to him ; in which action before the justice, Wood-ruff obtained judgment. To reverse this judgment of the justice this c&rtiorari was brought.
   [*]

Pennington, J.

The question is, did Woodruff abide the award of the arbitrators? For if he did not, by the terms of the agreement, Bishop was not restrained to proceed in his suit. Woodruff, under an idea that he was not bound to pay the cost until the taxed bill was presented to him, took no trouble about it. In this, I think, he was mistaken. He ought at least to have found Bishop or his attorney in five days, and offered to pay the costs; if the sum could not legally have been ascertained, I incline to think, in that case, he might have been considered as abiding the award, by holding himself ready to pay when it should be. But it does not appear but that the costs could have been legally ascertained if Woodruff had offered to pay. That the creditor should look up the debtor, and demand payment, may be in conformity to practice, but it is not required by law. For these reasons I am of opinion, that judgment ought to be reversed.

The Chief Justice, and Ros,seel, J., being of the same opinion,

Judgment was reversed.  