1839. HARTSHORNE v. WATSON. rent: if so, he was primâ facie liable to the Plaintiff, And I am of opinion, that the instrument produced by Walcot was an agreement to assign, and not an assignment. The assignment was to be made on payment of 2001. by instalments in the manner provided for, and in the meantime Walcot was to save the Defendant harmless from the covenants in the lease. Whatever interest was to pass, there was to be no assignment till the money was paid. It is competent to parties so to stipulate, and to pass to the proposed assignee a limited interest in the meanwhile. COLTMAN J. The privilege of examining on the voire dire is not confined to one party; and if the Defendant omits to examine in the voire dire a witness, who is primá facie interested, the Plaintiff is not therefore precluded from shewing, by his own examination of the witness, that he is not interested. It is not a right dependent on the exercise of a preceding right, but equal to both parties, to enter on this collateral issue. With respect to the deed, I think the Defendant, instead of making an absolute assignment, intended to retain an interest in the premises till the money was paid. ERSKINE J. I am of the same opinion upon both points. The interests of justice require that a witness should be examined as to any interest likely to operate upon him; and though the authorities have fluctuated, Bunter v. Warre is decisive, that the fact of occupation does not necessarily import that the occupier is liable as lessee, or of itself preclude him from being a witness to shew the terms on which he occupied. The situation of Walcot was equivocal: it was for the judge to ascertain whether he was interested or not; and it was reasonable the witness should have the opportunity of making an explanation. With respect to the contract between Walcot and the Defendant, I think it was an agreement to assign, and not an assignment: according to all the cases, we are to collect the intention of the parties from the entire instrument, and I think it was clearly the intention of these parties, that the instrument should not operate as an assignment till the whole of the 2007 was paid. Rule discharged. 1839. HARTSHORNE V. WATSON. THORNTON and Another v. JENNINGS and Others. May 8. cution of a THIS HIS was an action brought by certain commission- In an action ers of the Bedford Level, to recover damages for for non-exethe non-execution of a contract relating to works to be contract done by the Defendants, at a sluice called Denver sluice, relating to which is under the jurisdiction of the Bedford Level works on the Bedford Level, the Court refused to remove the venue from Cambridgeshire, on an affidavit that a large proportion of the property in Cambridgeshire is liable to the rates imposed by the Bedford Level corporation. 1839. THORNTON υ. JENNINGS. corporation, who raise the funds for the expences of the corporation by rates on lands within the Level. Kelly obtained a rule nisi to change the venue from Cambridgeshire, on an affidavit, that the Plaintiffs were gentlemen of property and influence in that county; that one of them was member for the county; that they had great control over the freeholders, and that a large proportion of the property in the county of Cambridgeshire was held liable to the rates imposed by the Bedford Level Corporation. Wilde Serjt., who shewed cause, contended that this afforded no reason for supposing that an impartial jury might not be obtained, or for changing the venue; Davies v. Lowndes (a), Doe v. Williams. (b) Kelly and Byles relied on the circumstance that the contract was for works on the Level, and that a large proportion of the jurors of Cambridgeshire have drainage taxes to pay, so that it might be impossible, in striking the special jury, to exclude every juryman interested in the event of the cause. TINDAL C. J. If it had been made to appear to us, that the county of Cambridge is such, that the trial of this cause must necessarily be by persons who would be liable in consequence of the verdict, perhaps there might have been reason for making the rule absolute; but there is no such allegation in the affidavits, and therefore, the rule must be Discharged. (a) 4 New Cases, 711. (b) 5 New Cases, 205. BARRETT v. PARTINGTON. 1839. May 8. N this action for the amount of an attorney's bill the By a cognovit, Defendant gave a cognovit, under which he withdrew it was de clared that judgment should not be entered up till default his plea and confessed the action, but it was declared that judgment should not be entered up till default should be made in payment of 721. 2s., being the debt for which the action was brought, with costs to be taxed should be by the Master as between attorney and client, on the days and times and in the manner therein specified; which was by sundry instalments. Default having been made in payment of one of the instalments, the Plaintiff signed judgment, which Petersdorff obtained a rule nisi to set aside, on the ground that the Plaintiff had not delivered a bill of the costs before signing judgment. He relied on Booth v. Lady Hyde Parker (a), where the defendant gave a cognovit, whereby it was stipulated that no judgment should be entered up thereon, unless default should be made in payment of the debt, with interest and costs, on the 9th of November; in case the defendant made default in payment as aforesaid, the plaintiff was to be at liberty to enter up judgment and proceed to execution, and take the whole of the said debt and costs, together with the costs of such judgment and execution: and it was held, that no default could be made by the defendant, until the plaintiff had furnished her with a bill of the costs, and had given her notice of taxation; and he not having done so, that judgment signed on the 10th of November was irregular, although the defendant had paid no part of (a) 3 Mecs. & W. 54. made in payinstalment of the debt, with costs, ment of an to be taxed instalment, entitled to sign judgment, notwithstanding he had not taxed costs. 1839. BARRETT v. either the debt or costs. So in Wilson v. Northern (a), it was held, that where a defendant gives a cognovit, the costs may be taxed before judgment is signed; and if, PARTINGTON. by the terms of the cognovit, the plaintiff is at liberty to tax costs and sign judgment, but signs his judgment before the costs are taxed, the judgment is irregular. Bompas Serjt., who shewed cause, observed that, in Booth v. Lady Hyde Parker, it was not provided, as in the present case, that judgment should be signed and costs be taxed upon default of the payment of an instalment; and Wilson v. Northern turned upon a critical construction of the language of the cognovit, which differed from that signed by this Defendant. Petersdorff. Except in the stipulation for payment by instalments, which is immaterial, the present case is not to be distinguished from Booth v. Lady Hyde Parker: the proviso for paying costs as between at torney and client, implies that the Defendant was to have the benefit of a taxation before judgment. TINDAL C. J. It is clear that, under this agreement, the Plaintiff was entitled to enter up judgment on the Defendant's failing to pay any instalment. Before he issues execution, he must indeed tax the costs; but this judgment is in conformity with the cognovit. Rule discharged. (a) 4 Dowl. 212. |