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costs; for that would have raised the question, whether more than one action can be maintained under the statute, where several parties are made liable to the costs; but as no application has yet been made by the Plaintiff in any other action, and it does not appear that any other will be made, the only question at present before us is, whether a several action is maintainable against one of such parties only. And we think that, under the construction of the sixty-third section, it is at all events in the election of the party who is entitled to his costs under the Speaker's certificate, to demand them of any one of the persons made liable by the certificate, and to bring his action against such one alone.

In support of the two former objections, it has been urged in the first place on the part of the Defendant, that the several clauses of the statute which give authority to the Speaker to ascertain and certify the costs, are to be considered as, and to receive the same strict construction with, clauses in an act of parliament which impose a penalty, so that no intendment is to be made in favour of the Speaker's jurisdiction; but, on the contrary, such jurisdiction must appear expressly and with entire certainty upon the face of the proceedings themselves. But we cannot consider the authority given by this statute to the Speaker as having any connection with, or bearing any analogy to, a penal enactment. Even admitting that the clauses which give to the committee appointed to consider the merits of a petition, the power of reporting that such petition, or the opposition thereto, is frivolous and vexatious; and which impose as the consequence of such report the payment of the full costs and expenses of the adverse party by the persons against whom such report is made, are to be considered as in the nature of penal enactments,—still the authority given to the Speaker is of a nature widely different; it is created not for the purpose of imposing costs, but of

ascertaining their amount by taxation of certain officers therein mentioned; and the clauses relating to it have no other object or effect than to moderate and diminish the amount of the costs already incurred, or at all events to ascertain their just measure. They are in fact clauses beneficial to and not in prejudice of the party against whom the penalty of costs has been awarded under the statute: and ought therefore, as it appears to us, to receive a favourable construction in themselves; and that every fair intendment is to be made from the facts disclosed by the affidavits, in support of the jurisdiction under which the Speaker acts.

Now the first objection is, that the name of Mr. Fector, the petitioner, no where appears upon the face of any document brought before the Court, until it occurs for the first time in the Speaker's certificate; but that in the original application to the Speaker, a copy "of Mr. Hart's account against the petitioners" is transmitted for taxation; and that the reference by the Speaker to the taxing officers-the appointment given by them of the day of taxation—and also their report to the Speaker of the amount of the costs, never disclose the name of the petitioner, but use and adopt the same description as that contained in the first application. It is therefore contended by the Defendant, that the account of Mr. Hart is or may be the account of a perfect stranger to the transaction; that the costs and expenses may include or belong to something else; and that no authority is shewn in the speaker to insert the name of Mr. Fector in his certificate. But when it is considered that the taxation of the costs which took place arose out of the decision of the committee appointed to try the merits of the Maidstone election, by which it appears, as set out in one of the affidavits, that Mr. Fector was the sitting member and the party petitioned against; and that the appointment of the day for

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taxation is headed "Maidstone borough," and the costs and expenses of Mr. Hart in the matter of the above election are therein expressly referred to; that the report of the examiners is headed "Maidstone election;" and that the Speaker's certificate is founded expressly on the reference which he had previously made to these same officers, and which he describes in his certificate as a reference of "the costs and expenses incurred by John Minett Fector, Esq., sitting member for the borough of Maidstone," it seems a necessary intendment, that taking the documents together, the costs and expenses of Mr. Hart in the matter of the election, and the costs and expenses claimed by the sitting member, must be the same identical costs and expenses. Again, the affidavit of the Defendant's agent states that he attended the taxation, that he objected to the authority of the taxing officers, and protested against their proceeding; but that, nevertheless, they proceeded: and though the affidavit is silent as to what objection was made, yet, taking it to have been that which is above adverted to, it could only have been overruled by proof before the officers that the costs of Mr. Hart and the costs of

Indeed, there is

Mr. Fector were identically the same.
not the slightest suggestion in the affidavit, that Mr.
Hart's bill of costs related to any other subject matter
than the costs incurred before the Maidstone election
committee, and such suggestion could never have been
omitted if the fact had warranted the insertion of it.
We therefore think the first objection ought not to be
allowed to prevail.

The second objection is, that the costs of Benstead, an elector, who was allowed by the House to be admitted a party to defend the return of Mr. Fector, are included in the amount of the taxation, and that the Speaker had no jurisdiction to make a certificate including both. What was the amount of those costs so

But

alleged to be due to Benstead, the affidavit does not
disclose, nor the ground upon which the taxing officers
included such costs in the bill; nor indeed does it
appear with any degree of certainty that the agent
made any precise objection on this account.
whether he did or not, we think this objection is an-
swered by reference to the sixtieth section of the statute,
by which the certificate of the Speaker is declared to
be conclusive evidence of the amount of the costs; the
disputed items being in effect items in the account,
which the taxing officers, after hearing both sides,
thought themselves warranted in allowing, and the
Speaker in certifying. And we think the present case
differs widely from that of Strachey v. Turley (a), where
the objection that the costs of two separate parties were
made the subject of a joint taxation, appeared upon the
documents themselves: and the Court could not do
otherwise than take notice, that under a power given to
tax the costs of "such petition," the officers had taxed
the costs jointly of two several petitions, signed by
different persons; whereas in the present case the ob-
jection is raised only by affidavit.

We therefore think the objections ought not to be allowed, and that the rule for entering up judgment should be made absolute.

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Rule absolute.

(a) 7 East, 507.

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DOUGLAS v. CONGREVE.

IS case was argued before the Court of Common Pleas, and a certificate was returned by that Court (a); but afterwards that certificate was amended by the same Court, and was again returned in the following form:

"We have heard this case argued, and we are of opinion that the Plaintiff took, under the will of George Douglas, the testator, an immediate estate for life in the real estates of the said testator, at Chilston and elsewhere, in the county of Kent, and an estate in remainder in tail general in the same lands, expectant on the determination of the estate for life, limited to James Douglas Stoddart.

"25th November 1837."

(a) See 4 New Cases, 1.

N. C. TINDAL.

J. A. PARK.

J. VAUGHAN.

T. COLTMAN."

END OF HILARY TERM.