Exch. of Pleas, there, and that the plaintiff's attorney was not come, he 1831. PERRY v'. TURNER. went to the office of the plaintiff's attorney, and told a clerk that it was not convenient for him to attend that day; but the clerk told him that the plaintiff's attorney was gone to the office with the papers, which was the fact; and the costs were taxed in the absence of the defendants' attorney. A rule nisi having been obtained by Lloyd Hall to set aside the judgment and execution for irregularity, upon the following grounds:-first, that the cognovit had not been signed by Joel before the first default; secondly, that the notices of taxation were insufficient; and lastly, that judgment could only be entered up for the one instalment due Aglionby shewed cause.-The first instalment became due before the cognovit was executed by Joel; but, by the execution, he placed himself in the same situation as if he had executed the cognovit at the time it bears date. It is a joint judgment upon a joint cognovit; and the execution of Joel relates back to the period when it was executed by the other defendants. The first notice of taxing costs was regular, and in strict pursuance of the rule of Court (a): that was postponed at the request of the defendant, and a fair and reasonable notice was given for the 10th. It is not necessary, under such circumstances, that a full day's notice should be given. By the terms of the defeazance, upon one default the plaintiff is entitled to sign judgment for the whole debt. Lloyd Hall, in support of the rule.-The judgment cannot stand against the defendant Joel, who signed the cognovit after the default was made, upon which the judgment proceeds. At the time of the default he was no party to the cognovit, and could not be bound by it; as in (a) Ante, Vol. 1, p. 472, pl. 12. 1831. PERRY v. TURNER. the case of a deed, which only binds from the date of the Exch. of Pleas, actual execution. The notices of taxation are irregular, not being served upon the attorney for the defendants; and the last is also irregular, because it was not served one whole day previous to the time of taxing the costs. There was in fact, therefore, no regular allocatur; and, without an allocatur, a judgment, which includes costs, is not final. Butler v. Bulkeley (a). Without a final judgment, the. execution cannot be supported. Lastly, execution could only issue for the instalment due. The cognovit is merely a security for the regular payment of the instalments, in the nature of a penalty, which cannot be treated as liquidated damages. Astley v. Weldon (b), Charrington v. Laing (c), Kemble v. Farren (d). [Bayley, B.-In Charrington v. Laing, the defeazance was conditioned for the performance of several acts within a certain time, some of which were performed. The Court admitted the judgment to be regular, and referred it to the Prothonotary to inquire what was actually due to the plaintiff.] The money was paid before the judgment was actually signed. There was, therefore, no cause for signing the judgment; and the execution should at all events be staid, the judgment standing as a security for the payment of the future instalments. BAYLEY, B. (e)—If any injustice has been done by the Master's taxing the costs in the absence of the defendant's attorney, it may be sent back to him to see whether there should be any deductions. But, independently of that consideration, the judgment and execution seem to me to be regular. The objection to the judgment is, that when the cognovit was executed by Joel, one of the defendants, (a) 8 Moore, 104; 1 Bing. 243. (b) 2 B. & P. 346. (c) 6 Bingh. 242. (d) 6 Bingh. 141. (e) Lord Lyndhurst, C. B., was sitting in Equity. 1831. PERRY v. TURNER. Exch. of Pleas, the time for payment of the first instalment had gone by; and therefore, that though the cognovit in form was to give indulgence, in effect it was forfeited. I am, however, of opinion, that when the party executed, he executed subject to all the same consequences as if he had executed it at the time when it bore date. The date shews to what period of time the cognovit may be considered as referring, that is, the 3rd; it was then executed by two of the defendants, and the third does not execute it until the 7th; but when he does execute, he agrees to the language of the cognovit, and puts himself in the same situation as if he had executed on the 3rd. He might think, and hope, and expect that judgment would not be immediately signed; but there was nothing to prevent the plaintiff from doing so. I think, therefore, that his execution related back to the time of the date; and that the plaintiff was at liberty, if he thought fit, to insist on his right immediately to sign judgment on the cognovit. On the morning of the 7th, however, it appears that the instalment was paid; and if that had been accepted by a person having full authority, as a waiver of the default, such waiver would be binding; but here, the payment was merely to the attorney's clerk; and the attorney had prudently locked up the cognovit, so that no one could indorse any payment upon it. The attorney, instead of accepting the money as a waiver, is instructed by the plaintiff to give no indulgence, but to proceed immediately; and he then gives a notice to the parties that he intends to insist on the default, as if no payment had been made. Then, are the proceedings irregular on the other ground, that no regular notice of the taxation of costs has been given? On the 8th, a regular notice is given for the 9th; and if the taxation had taken place on that day, there could have been no objection; but, in the meantime, one of the parties makes an application to the plaintiff's attorney to have the taxation postponed. As the taxation binds all, each has a right to 1831. PERRY V. TURNER. ask for such indulgence. I am not clear that the plaintiff Exch. of Pleas, might not have taxed on the 10th, after what had taken place, without giving any further notice; but, at all events, he was not bound to give the one day's notice; and if he gave a fair and reasonable notice, his proceedings were not irregular. Now, it appears, that, on the evening of the 9th, a notice was put into the post, which found its way to the defendant's attorney on the following morning. That notice was for two o'clock on the 10th; it is known, however, that the Master does not attend until three, and, therefore, that is a notice of two for three. The defendant's attorney goes at two, and not finding the plaintiff's attorney in attendance, he goes to the office of the plaintiff's attorney, and tells his clerk that it is not convenient for him to attend any longer on that day; but it is not sworn that it was inconvenient for him to attend. The clerk, however, did not acquiesce in any delay, but informed him that the attorney for the plaintiff was gone to the Master's office with the papers. If the defendant's attorney had gone then, he might have been present at the taxation which then took place. I have cautiously avoided expressing any opinion as to whether a neglect to give notice of taxation of costs gives the defendant's attorney a right to set aside the proceedings for irregularity. The Court has made an order regulating what notice shall be given; but it has not said what the consequences of not following that order shall be. It may be, that the Court would consider it as a matter on which they are to use their discretion in each particular case, and that in some cases they would set aside the judgment, in others they would not (a). Upon the whole, I am clearly of opinion that we cannot treat this as an irregular judgment. (a) See Shaw v. Evans, 10 East, 576, and Millar v. Bowden, ante, Vol. 1, p. 563, in which it was holden that a non-compliance with rules of Court, which are merely Exch. of Pleas, 1831. PERRY v. TURNER. GARROW and BOLLAND, Barons, concurred; and the rule Was discharged without costs; the Master to say whether any, and what, deduction should be made from the amount of the costs as taxed. FISHER v. GOODWIN. There must be STEER moved for a distringas. The affidavit only stated two attempts to serve the defendant. three attempts to serve the venire before a distringas can be obtained. BAYLEY, B.-There must, in general, be at least three attempts to serve the defendant with the venire, at his residence. The affidavit must state where the residence is, and disclose the answers given to the inquiries after the defendant, in order that the Court may see that the defendant is in the neighbourhood, and keeps out of the way to avoid the service. WOOD v. BENSON. Rule refused. Guarantie 1 ASSUMPSIT by the clerk of the Manchester Gas Works, (plaintiff) for all on the following guarantie, signed by the defendant: engage to pay the gas which may be consum ed in the Minor Theatre, &c. "I, the undersigned, do hereby engage to pay the diduring the time rectors of the Manchester Gas Works, or their collector, it is occupied by A. B.; and I also engage to pay for all arrears which may be now due."-Held, that the agreement was void as to the arrears, but that the amount of the gas subsequently supplied might be recovered under a count for goods sold. |