.1831.

PERRY and Others

v.

TURNER and Another.

having taken place under insufficient notices, no regular allocatur had been made. And 3d, That execution could only issue for the instalment due.

Aglionby shewed cause.-By executing the joint cognovit on the 7th, Joel became equally liable as if he had signed it on the 3d, when it bears date, and was executed by the other defendants. The judgment is joint. Next, the notice of taxation for the 10th was sufficient, though delivered on that day, as the first notice for the 9th was the regular day's notice directed by Reg. Gen., Trin. 1831 (a), and that taxation was then postponed at the request of one of the defendants. The terms of the defeazance by which the plaintiff may sign judgment for the whole debt on one default, are an answer to the last point.

Lloyd Hall contrà.-As Joel did not sign the cognovit till after the default occurred, on which the judgment is founded, it cannot stand against him. In like manner, a deed only takes effect from the date of its actual execution. But if the judgment be regular for debt and costs, the execution is not; for the first notice of taxation was not served on the defendant's attorney, and if good was waived by the letter of plaintiff's attorney; and the second was not served one whole day before the time for taxing the costs. Then there is no regular allocatur, and if it was de facto completed by inserting the amount of the costs irregularly ascertained, still the judgment is not final, Butler v. Bulkely (b); Blackburn v. Kymer (c); and without final judgment the execution is bad. If the execution is regular, it should only have issued for the instalment due. Charrington v. Laing (d)

shews that a cognovit stipulating for performance of
various matters is only a security by way of penalty,
which cannot be treated as liquidated damages. He
also cited Kemble v. Farren (a), Astley v. Weldon (b).—
[Bayley B.-In Charrington v. Laing, the judgment
was held regular, but it was referred to the prothonotary
to enquire what was actually due to the plaintiff.]

BAYLEY B. (c) If any injustice has been done by an improper allowance of any costs in the absence of the defendant's attorney, the taxation may be reviewed at the plaintiff's expence. But independently of that question, I am of opinion that this judgment, and in strictness the execution, is regular. The objection to the judgment is, that when the instalment became due under the cognovit and was not paid, one of the defendants had not signed it, so that the cognovit was then in substance forfeited by the previous default in payment. But though Joel did not execute till after the 5th, still when he did execute, he executed with all the consequences ensuing on an execution of the instrument at a time prior to that when the instalment was made payable. The date of the cognovit shews, that it speaks of the 3d. On that day two of the parties executed it, and when Joel executed on the 7th, he agreed to and adopted the language of the cognovit, and it became the same thing as if it had been executed by him on the 3d. He might hope and expect that no execution would be issued against him for the instalment due on the 5th; but the plaintiff could not sign any judgment or issue any execution, except a joint judgment or execution.

I think, therefore, that Joel's execution of the cognovit after the 5th, relates back to the time of the date, and that plaintiff was at liberty to insist on his right to sign

1831

PERRY and Others

v.

TURNER and Another.

831.

PERRY

and Others

v.

TURNER and Another.

judgment on the 7th. However, in the morning of the 8th the instalment due on the 5th was in fact paid: and had it been accepted as a waiver of the default by a person having competent authority, that would be a final waiver; but the payment was merely to the attorney's clerk, and the attorney having locked up the cognovit, no indorsement could be made on it in his absence. On hearing of the payment from his clerk, he might adopt it as a waiver or not; but having been instructed by his client to proceed immediately, he forthwith gave notice of taxation, which was a notice that he intended to rely on the default, as if no such payment had been made.

Then has this taxation of costs taken place without a regular notice? On the 8th, a regular notice is given for taxing on the 9th, and had the costs been then taxed, there could have been no objection to the plaintiff's signing judgment and issuing execution. In the interim, however, one of the defendants applies to the plaintiff's attorney to put off the taxation. As all are bound by the taxation, he might be supposed to act for all. I am not clear that under the circumstances any additional notice of taxation was necessary, but I think that at all events after such an application by a defendant, the plaintiff's attorney was not bound to give him one whole day's notice, but to give him a fair and sufficient notice; and that if that were given, his proceedings would not be irregular. At all events, the attorney acting for the defendants, does in fact get a notice on the 10th, of taxation for that day at two o'clock. It is well known, that in practice, the Master does not attend till three, and the notice then was of two for three o'clock: the defendant's attorney goes at two o'clock to the Master's office, and finding neither that officer or the plaintiff's attorney there, goes to the office of the latter and says, "I have been at the Master's office and it is not

convenient to me to attend at three;" but he does not swear that it was inconvenient, or that he had any other engagement which prevented him from attending at that hour. The clerk of the plaintiff's attorney does not acquiesce in putting off the taxation, but says, his employer is gone with the papers to the Master's office, so that if the defendant's attorney had gone thither at that time, the costs might have been then taxed in his presence.

I cautiously avoid giving any opinion, whether the neglect to give notice of taxation of costs entitles the defendant's attorney to treat the judgment as irregular. The rule of the Court is directory, that before taxation of costs, one day's notice shall be given to the opposite party, but what the consequences of signing judgment without giving that notice shall be, is not clear upon the rule. It may be, perhaps, that the judgment would be supported or set aside at discretion of the Court under the particular circumstances of each case.

Neither judgment nor execution are shewn to be in this case irregular.

GARROW and BOLLAND Bs. concurred.

Rule discharged, but without costs, not
having been moved with costs.
The Master to say whether any, and if
any, what deduction should be made
from the amount of the taxation,
and which party should pay the costs
of that taxation.

1831.

PERRY and Others

V.

TURNER and Another.

Where the

HUGHES against MARSHALL and three Others.

committee of ASSUMPSIT for meat and drink, lodging and ne

a candidate at an election, opened a public house for

voters in his interest, and some supporters of his

gave orders

there, on their own credit, for refreshments to be supplied as well to cer

tain voters for him, as to others who

cessaries found for the defendants, and for several other persons at the request of the defendants. Plea, general issue.

At the trial at the last Shropshire summer assizes, before Patteson J., it appeared that, during the election subsequently in 1830, the defendants, who were friends of Mr. Slaney one of the candidates, had either in person, or by authority of written tickets supplied to them by his committee, given orders to the plaintiff, an innkeeper at Shrewsbury, to provide refreshments for upwards of 100 of Mr. Slaney's voters, as well as for themselves and other persons who had not votes. Accordingly, during the election, which lasted five days, these refreshments were supplied to the above persons. After it ended, the plaintiff and defendants cast up the plaintiff's bill (b) incurred under the above orders. It amounted to 237., and was admitted by the defendants to be right, and was made out to Nicholls, the chairman of Mr. Slaney's committee, together with a bill of 30. more on account of refreshments to Mr. Slaney's voters. The 30l. was paid, but the 237. was refused payment, as having been in

had no votes: -Held, that

the case did not come within the treating act 7 & 8 W. 3. c. 4. which provides against acts of treating done by the candidate or some person acting for him and on his behalf, viz. by his desire or with his privity, in order to be elected. Giving refreshments to voters in order to procure an election is an offence at common law as bribery, and the party supplying them cannot recover.

Semble, moderate and necessary refreshment may be furnished to voters coming from a distance. (a)

(a) But see per Eyre, C. J. Ribbans v. Crickett, 1 B. & P. 266. and per Wood B. Lofhouse v. Wharton, 1 Camp. 551. n.

Inn, Shrews

(b) The bill was as follows :-" Friday July 30 1830. bury. Eating, ale, &c. given to different burgesses, carriers, &c. by orders of the undersigned, amount of bill 231."

Signed by the four defendants.