1860.

EDWARDS

v.

WHITEHURST.

such election auditor as therein provided: The said further commission shall be payable only upon any payment made by the candidate as aforesaid over and above the sum of 2001. Provided always, that the election auditor shall not be entitled to receive for such first fee and further commission more than the sum of 207. in the whole from each candidate." By section 3: "So much of section 38 of the said first mentioned Act as defines the words 'candidate at an election' shall be repealed; and in the construction of the said Act, as amended by this Act, the words 'candidate at an election' and the words 'candidate at any election' shall include all persons elected to serve in parliament at such election, and all persons nominated as candidates at such election, or who shall have declared themselves candidates on or after the day of the issuing of the writ for such election, or after the dissolution or vacancy in consequence of which such writ shall have been issued: Provided that nothing herein contained shall be construed to impose any liability on any person nominated without his consent." [Watson, B.-Any person who declares himself a candidate, even though he does not stand, is liable to this fee of 10%.]

The Court then called on

J.J. Powell, for the defendant.-The 15th section of the 17 & 18 Vict. c. 102, commences with a recital shewing the objects of the legislature, and the enactment must be construed with reference to that. One object in appointing an election auditor was to diminish the expenses of elections; and it would be inconsistent with that object to impose a penalty of 101. on every person who became a candidate. It is for the advantage of the county that a number of persons should present themselves, from whom the electors should choose the most fit. The 34th section not only specifies the pay

ments to be made to the election auditor, but also states why he is to receive them, viz., by way of remuneration for his services in and about the election. It was never intended that he should receive 10l. when no service was performed. An election auditor is not bound to attend the election. [Martin, B.--The 3rd section of the 21 & 22 Vict. c. 87, says, that the words "candidate at any election" shall include all persons "nominated as candidates at such election, or who shall have declared themselves candidates." This defendant was both nominated and declared himself a candidate.] It is not denied that he was a candidate, but he incurred no expenses for the auditing of which the plaintff is entitled to be remunerated. Moreover, this is a claim against the defendant in respect of an election, and the 16th section of the 17 & 18 Vict. c. 102, requires that "all persons, as well agents as others, who shall have any bills, charges, or claims upon any candidate for or in respect of any election, shall send in such bills, charges, or claims within one month from the day of the declaration of the election to such candidate, or to some authorized agent of such candidate acting on his behalf, otherwise such persons shall be barred of their right to recover such claims, and every or any part thereof." The sending in the claim is a condition precedent to the right to recover in respect of it. [Watson, B.-That cannot apply to an auditor; for the candidate must send him the bills before the auditor is entitled to his commission. Martin, B.-That point is not raised.] The 18th, 19th, and 24th sections shew that it is for services rendered that the auditor is to be paid.

Gray was not called upon to reply.

POLLOCK, C. B.-There is no doubt whatever, upon the

1860.

EDWARDS

v.

WHITEHURST.

1860.

EDWARDS

v.

WHITEHURST.

EXCHEQUER REPORTS.

plain construction of these acts of parliament, that the moment the defendant declared himself a candidate the plaintiff became entitled to this fee of 107. It is impossible to say that the defendant was not a candidate for a short time, for he was proposed and seconded with his own consent. Then the 17 & 18 Vict. c. 102, s. 34, expressly says that every election auditor shall be paid 107. as a first fee. It is said that the plaintiff has performed no duty; but that is not so. One of his duties was to be present at the election, and he incurred expense in going to Monmouth and staying there.

MARTIN, B.-It is impossible for the legislature to have used words more plain than they have done. The 34th section of the 17 & 18 Vict. c. 102, says that every election auditor shall be entitled to receive from each candidate the sum of 107. as a first fee, that is, something in the nature of a retainer. Then the 3rd section of the 21 & 22 Vict. c. 87, gives a definition to the word "candidate,” which includes all persons nominated as candidates, or who shall have declared themselves candidates. The defendant was nominated a candidate, and he addressed the electors.

WATSON, B.-I am of the same opinion. The candidate is to pay the election auditor 107. as a retainer, and a further commission for services performed.

Judgment for the plaintiff.

1860.

ASTLEY and WILLIAMS v. EDWARD JOHNSON and Another.

Jan. 27.

THE declaration stated that certain persons, in and under The plaintiff's

the firm of Edward Johnson and Company, in parts beyond the seas, to wit, at Rio Janeiro, to wit, on the 12th of May, 1858, made and drew their bill of exchange upon the defendants at ninety days sight, and thereby required the defendants to pay that their first of exchange (second and third not paid) to the order of the plaintiffs, the sum of 30007. sterling, value of Messrs. Astley, Willson and Company, payable in London. And the plaintiffs say that the defendants, to wit, in Liverpool, had sight of and duly accepted the said bill, and the second and third thereof have not been paid; and the said bill arrived at maturity and became due, and was duly presented for payment at maturity, long before this suit, but was not paid; whereupon the same was duly protested for non-payment; and the plaintiffs incurred large expenses about such presentment and protest, and the exchange, re-exchange and otherwise of and about the said bill.

and W., who were partners in a firm at

Rio Janeiro, J. a bill of purchased of exchange

drawn by him

on the defend

ants at ninety

day's sight, and agreed to pay J. the

price at the

end of a month. The price was not paid, and

the bill having

been remitted to the plaintiffs,

they sued the defendants who had accepted Held, that

it.

the defendants were not liable, since there

a

total failure tion; and, as

of considera

that would have been a

defence to an

action by the

W., it was

First plea.—That the plaintiffs and one William Willson constituted the said firm of Astley, Willson and Company; and that the consideration for the said bill was a certain equally available against sum of money agreed to be paid by the plaintiffs and the the plaintiffs. said William Willson to the drawers of the said bill at Rio Janeiro, as the price and for the purchase of the said bill, and which said price was, at the time the said bill was drawn, agreed to be paid by the plaintiffs and the said William Willson to the said drawers of the said bill, at Rio

1860.

ASTLEY

v.

JOHNSON.

Janeiro, at the end of the month in which the said bill was drawn. And the defendants further say, that the plaintiffs and the said William Willson did not, at the end of the said month in which the said bill was drawn, pay to the drawers of the said bill the said price of the said bill, or any part thereof, and then wholly neglected and refused to pay the same, and never have paid them the price of the said bill, or any part thereof; and that the defendants accepted the said bill after the said month as the agents for and on account of the said drawers of the said bill, and without notice that the price of the said bill had not been paid; and that neither the drawers of the said bill nor the defendants ever have received any consideration whatever, except as aforesaid, for the drawing or the accepting of the said bill.

Second plea. The defendants repeat all the averments in the preceding plea: and further say, that the plaintiffs have never given any consideration for the said bill to the said firm of Astley, Willson and Company, and have always been the holders of the same, without having given for the same any value or consideration whatever.

Demurrer and joinder therein.

Wilde (Milward with him), in support of the demurrer. -The pleas are bad. The bill, which on the face of it purports to be drawn for value received of Astley and Company, was sold by the drawer to them for a sum of money, which Astley and Company agreed to pay at the end of a month. The money not having been paid, the defendants. say that the consideration for the bill has failed. But the consideration is the promise to pay, not the actual payment. [Martin, B.-The question is, whether the doctrine of stoppage in transitu applies to such a case.] The promise and the payment are distinct matters, and the failure to pay