1832.

STEPHENS

V.

LOWE.

able time must be allowed for the duty to be performed, and what shall be a reasonable time must depend on the facts of the case and the judgment of the Court. Though it is not always easy to say what is a reasonable time, it is easy, as in the present instance, to say what is unreasonable; for where the party has allowed a third month to elapse without requiring an assessment, and has included in the award damages incurred subsequently to the second month, that is a proceeding not within the condition of the bond, and, therefore, as to the bond, entirely void. That brings us to the second question, whether the award can be supported under any parol authority. Now the indorsement on the bond is, in effect, a written agreement substituting one time for another: "The parties within named, by themselves or their agents have met this day by consent on the second assessment or award;" that is, the parties in the bond; and the assessment, that which was to have taken place every two months. What is this but an agreement to substitute July for April? At all events it is evidence of an agreement to that effect, and the words of the stamp act are wide enough to comprehend such an instrument. "Agreement, or any minute of memorandum of an agreement, whether the same shall be only evidence of a contract, or obligatory on the parties from its being a written instrument." (55 G. 3. c. 184.) Then, the instrument not being stamped, the Plaintiff is out of Court.

PARK, GASELEE, and BOSANQUET JS. concurred.

Rule discharged.

1832.

(IN THE EXCHEQUER CHAMBER.) GURNEY V. GORDON and Another.

(In Error.)

June 2.

costs, incurred

in opposing a petition against

the return of a member of

parliament, may be

brought against one of several petitioners, under

9 G. 4. c. 22.

DEBT. The Plaintiffs below declared that the De- An action for fendant below (Gurney) was indebted to the Plaintiffs under and by virtue of a certain act of parliament made and passed in the ninth year of the reign of his late Majesty George IV. to consolidate and amend the laws relating to the trial of controverted elections or return of members to serve in parliament, in the sum of 1260l. 10s. 8d. for the costs and expenses incurred by the Plaintiffs in opposing the petition of the said Defendant and one Charles King, Esq., complaining of an undue election and return for the borough of Tregony, and to be paid by the said Defendant to the Plaintiffs when he, the Defendant, should be thereunto afterwards requested; whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid and by virtue of the said act, an action had accrued to the said Plaintiffs to demand and have of and from the said Defendant the sum of 1260l. 10s. 8d. parcel of the sum demanded. Counts for money paid, money lent, money had and received by Defendant below to the use of Plaintiff below, and upon an account stated. Judgment upon nil dicit, with a remittitur damna except as to 1260l. 10s. 8d.

By the fifty-seventh, sixtieth, and sixty-third sections of the statute referred to in the declaration (9 G. 4. c. 22.) it is enacted, "That whenever any committee ap

1832.

GORDON

V.

GURNEY.

pointed to consider the merits of any petition complaining of an undue election or return, or of the omission to return any member or members to parliament, shall report to the house with respect to any such petition (except as is hereinbefore excepted), that the same appeared to them to be frivolous or vexatious, the party or parties, if any, who shall have appeared before the committee in opposition to such petition, shall be entitled to recover from the person or persons, or any of them, who shall have signed such petition, the full costs and expenses which such party or parties shall have incurred in opposing the same, which costs and expenses shall be ascertained in the manner hereinafter directed." (Section 60.) "The costs and expenses of prosecuting or opposing any petition presented under the provisions of this act, and the costs, expenses, and fees which shall be due and payable to any witness summoned to attend before such committee, or to any clerk or officer of the House of Commons, upon the trial of any such petition, shall be ascertained in manner following; that is to say, on application made to the Speaker of the House of Commons within three months after the determination of the merits of such petition, by any such petitioner, party, witness, or officer, as before mentioned, for ascertaining such costs, expenses, or fees, the Speaker shall direct the same to be taxed by two persons, of whom the clerk, or one of the clerks assistant of the House shall always be one, and one of the following officers, not being a member of the House, shall be the other; that is to say, masters in the High Court of Chancery, clerks in the Court of King's Bench, prothonotaries in the Court of Common Pleas, and clerks in the Court of Exchequer; and the persons so authorised and directed to tax such costs, expenses, and fees shall and they are hereby required to examine

the

the same, and to report the amount thereof, together
with the party liable to pay the same, to the Speaker
of the said House, who shall upon application made to
him, deliver to the party or parties a certificate signed
by himself, expressing the amount of the costs, ex-
penses, and fees allowed in such report, together with
the name of the party liable to pay the same; and such
certificate, so signed by the Speaker, shall be conclusive
evidence of the amount of such demands, in all cases
and for all purposes whatsoever; and the witness, officer,
or party claiming under the same, shall, upon payment
thereof, give a receipt at the foot of such certificate,
which shall be a sufficient discharge for the same."
(Section 63.) "It shall and may be lawful for the
party or parties entitled to such costs and expenses, or
for his, her, or their executors or administrators, to
demand the whole amount thereof, so certified as above,
from any one or more of the persons respectively who
are hereinbefore made liable to the payment thereof in
the several cases hereinbefore mentioned; and in case
of nonpayment thereof, to recover the same by action of
debt in any of his majesty's courts of record at West-
minster, in which action it shall be sufficient for the
plaintiff or plaintiffs to declare that the defendant or
defendants is or are indebted to him or them in the sum
to which the costs and expenses, ascertained in manner
aforesaid, shall amount by virtue of this act; and the
certificate of such amount, so signed as aforesaid by the
Speaker, shall have the force and effect of a warrant to
confess judgment; and the Court in which such action
shall be commenced shall, upon motion, and on the
production of such certificate, enter up judgment in
favour of the plaintiff or plaintiffs named in such certi-
ficate for the sum specified therein to be due from the
defendant or defendants in such action, in like manner

1832.

GORDON

V.

GURNEY.

1832.

GORDON

V.

GURNEY.

as if the said defendant or defendants had signed a warrant to confess judgment in the said action to that amount."

Archbold, for the Defendant below, contended that as it appeared on the record the petition had been instituted by Charles King as well as by the Defendant below, the action should have been brought against them jointly, and not against Gurney alone: that Gurney being compelled by the statute to suffer judgment by default, had no opportunity of taking this objection except on error.

Sed per Curiam. By the fifty-seventh section the party who shall have appeared before the committee in opposition to the petition is entitled to recover from the person or persons, or any of them, who shall have signed the petition, the full costs and expenses incurred in opposing the same; and by the sixty-third, to demand the whole amount thereof from any one or more of the persons liable. It is impossible to doubt that the Plaintiff may, if he chooses, confine his suit to one. Judgment affirmed.