In 1825, William Davidson Parkins, who had for some time carried on business as a coachbuilder at Calcutta, died on his passage to England intestate, leaving a considerable personal estate in India. In 1827, Isabella Findlay, the sister of the intestate, procured letters of administration to be granted to her out of the Preregative Court of Canterbury, of the intestate's effects; and soon afterwards sent out to the firm of Colvin & Co., in Calcutta, a power of attorney to collect the assets of the intestate. The firm in India, after collecting the assets, remitted the money to the firm of Bazett & Co., their correspondents in London. In 1830, a bill was filed by certain of the next of kin of the intestate, to restrain Isabella Findlay and her husband from getting in the assets of the intestate; and to this bill the Messrs. Bazett & Co. were made defendants, that they might be restrained by injunction from paying the money in their hands to the Findlays. In March, 1890, an order for an injunction was made in the terms prayed for in the bill; and in April, 1830, the defendants, Messrs. Bazett & Co., put in their answer to the bill, by which, after admitting that a power of attorney had been sent out to the firm of Colvin & Co. by Mrs. Findlay to collect and receive the assets of the intestate, they stated as follows:-" And these defendants admit that they the said Messrs. Colvin & Co. have accordingly gotten in such assets to a considerable amount, and have remitted such part thereof as are hereinafter mentioned to these defendants, that is to say, the said firm of Colvin & Co. have remitted to these defendants two bills of exchange, one for 19317. 58. 8d., drawn upon Bazett & Co., payable six months after date, and which became due on the 9th November, 1829; and the other for 541. 3s. 4d., drawn upon the East India Company, and made payable to the said Isabella Findlay, and which became due on the 3rd October, 1829, but is now in these defendants' hands, unreceived, the same not having been indorsed by the said Isabella Findlay. And these defendants say, that the said bills do not bear interest; and further, that they received the said two bills from the said Messrs. Colvin & Co., with directions to pay over the proceeds to the said administratrix of the said W. D. Parkins, upon having a proper discharge for the same; and inasmuch as it appears to these defendants that the let ters of administration, which had been granted to her without stamp, were not sufficient to enable her to give a discharge to these defendants and the said Messrs. Colvin, these defendants refused to pay over the amount of the said bills; and in order to enable the said George Findlay and Isabella his wife to pay the stamp upon proper letters of administration, they advanced to them, out of the said bill for 19317. 58. 8d., the sum of 1007. for that purpose, at the request and entreaty of them the said George Findlay and Isabella his wife: but these defendants have since heard that the said George Findlay and Isabella his wife have misapplied the said sum so paid them as aforesaid. And these defendants say, that the sum payable to them as East India agents, by way of commission, in respect of the aforesaid remittances, and the law charges which they (these defendants) have incurred in respect of the said bills, amount to 30. 11s. 6d., which, together with the said 1007., being deducted from the said bill for 19317. 5s. 8d., leaves a balance in their hands of 18007. 14s. 2d., which said balance, together with the said bill on the East India Company for 541. 38. 4d., these defendants are ready to pay unto this Honourable Court, or to dispose of as this Honourable Court shall direct, upon being indemnified and paid their costs." No further step was taken in the suit until August, 1841, when a bill of revivor and supplement was filed; and by an order of the Court, dated in November, 1841, the sum of 17667. 18. 6d., the amount received upon the bill, after deducting expenses, was paid into court by Messrs. Crawford & Colvin, the surviving members of the firm of Bazett & Co., after having been left at the bankers of the firm, mixed with their other monies, since November, 1829. The order for payment into court was made without prejudice to any question as to interest, or to any other question in the cause. Upon the hearing on further directions, the question was raised, whether the defendants, Messrs. Crawford & Colvin, were liable to pay interest upon the fund which had been left in the hands of the London firm. Romilly, Wood, Malins, Bagshawe, Hubback, Wilcock, Goldsmith, and Moxon appeared for the various parties to the suit. The following cases were cited:-Lord Chedworth v. Edwards, (8 Ves. 46); Edwards v. Vere, (5 B. & Adol. 282); Wright v. Southwood, (1 You. & J. 527); Treves v. Townsend, (1 Bro. C. C. 384); Perkins v. Bagster, (Id. 375); Brown v. Southorne, (3 Bro. C. C. 107). Sir JAMES WIGRAM, V. C., said-He thought the departure by the house in India from the authority given to them by Mrs. Findlay did not affect the house in London. With that they had nothing to do; but, having received the money as agents for the firm in India, accompanied by a direction to apply it in a particular manner, they were bound to comply with that direction. Their instructions were to pay it to the person who could give a legal discharge; and such payment was of course to be preceded by a demand. No such application had been made, for Mrs. Findlay was not the party entitled; and there was no rule of law which rendered the agent liable for interest until demand. Supposing the delay to have arisen from the neglect of a duly qualified administrator, although such administrator might have been liable to those to whom he was accountable, it by no means followed that the agent would have been liable to him. The question was, what were the liabilities incurred by the London firm in consequence of the undertaking they had come under. The undertaking was to pay over the money, upon demand, to the party entitled; and, to do that, the agents were bound to have the money ready. Had it been invested in the securities recognised by the Court, a fall in the funds would have been no answer to the party applying for the full amount. That being so, it could not be contended that the parties in the suit could have any right as against the London firm which an administrator himself would not have had; nor did it appear that the firm, who had offered in their answer to pay the money into court upon being indemnified, were in default for not having themselves applied to do so in a suit in which there was no legal personal representative before the Court. In a case like the present, where there had been no administrator of the intestate, or hand to receive the money till 1842, the defendants, Messrs. Crawford & Colvin, could not be held liable for interest upon the fund which had been left in their hands. COURT OF QUEEN'S BENCH.-TRINITY TERM. GILES v. GILES.-May 29. Declaration upon an Agreement, by which, after reciting the Will of the Father of Plaintiff and Defendant, devising certain Lands to Defendant, and that, by a subsequent Revocation in Part of the Will, Plaintiff had been wholly unprovided for, Defendant agreed to permit Plaintiff to occupy the said Lands until the 29th September, 1843, Plaintiff therefore paying on that Day to Defendant, as he thereby agreed to do, the Sum of 301., as Rent for the same, and then to deliver up the same to Defendant; and, upon Plaintiff so quitting the said Premises, paying the Rent, and releasing Defendant from all Claims under the said Will, Defendant agreed that he would pay to Plaintiff 2001., with Interest, to be calculated from the 29th Sep. tember then instant; and it was further agreed, that all Deeds or Releases to be required by Defendant should be prepared by the Attorney for Defendant, at his own Expense. Averment of mutual Promises, and of Performance of the Agreement by Plaintiff, and that Plaintiff was ready and willing to quit and deliver up the Premises to Defendant and pay the Rent, and was ready and willing to release Defendant from all Claim under the Will. Breach, Non-payment of the said Sum of 2001., with Interest. Second Plea, that Plaintiff was not ready and willing to quit and deliver up the Premises, and to pay the Rent. Third Plea, that Plaintiff was not ready and willing to release Defendant from all Claim of and under the Will:-Held, first, that the Acts to be done by Plain- | tiff were not Conditions Precedent and independent Acts, and that it was sufficient to aver Readiness and Willingness in the Declaration. Secondly, that it was necessary to aver Readiness and Willingness in the Declaration, and, therefore, that Averment was traversable. Thirdly, that Plaintiff was bound to pay the Rent, and deliver up Possession; and, therefore, the Traverse of both those Acts was not too large. Fourthly, that, inasmuch as the Release was to be prepared by Defendant's Attorney, and it was averred in the Declaration that no Release was prepared, the Readiness and Willingness of Plaintiff to have executed it became immaterial; and the Averment of Readiness and Willingness was not traversable. Assumpsit. The declaration stated, for that whereas heretofore, to wit, on &c., A. D. 1842, by a certain agreement then made between the defendant of the first part, the plaintiff of the second part, and one John Giles of the third part, reciting, that Henry Giles the elder, father of the defendant and of the plaintiff, made his last will and testament in writing, bearing date the 3rd June, 1839, whereby, after charging his freehold and leasehold hereditaments with the payment of his debts, and giving certain annuities, and a legacy, he gave, devised, and bequeathed unto the defendant all his freehold lands in Porthmeor, in the parish of Lennor, and also his leasehold lands in Rosemerger, in the parish of St. Norvah, and also all his leasehold lands in Bojewyan, in the parish of St. Just, all in the said county of Cornwall, subject, as to the said freehold lands, to the said several annuities and pecuniary legacy,the said freehold lands to the defendant, his heirs and assigns, for ever, and the said several leasehold lands to the defendant, his executors, administrators, and assigns, for all such term, estate, and interest as might be then to come and expire at the time of his (the testator's) death; and that he the said testator had appointed the defendant sole executor and residuary legatee and devisee of his said will: and reciting, that, by an indenture made between the said Henry Giles the elder, since deceased, of the first part, the defendant of the second part, and Charles Paynter, of &c., of the third part, the said Henry Giles, deceased, demised to the said Charles Paynter, his executors, administrators, and assigns, for 2000 years, the lands in Porthmeor; and assigned to the said Charles Paynter, his executors, administrators, and assigns, the lands in Rosemerger and Bojewyan for the residue of the several terms, subject as therein mentioned, upon trust to raise and pay the said Henry Giles, deceased, an annuity of 201. per annum, and, subject thereto, upon trust for the defendant, his executors, administrators, and assigns: and further reciting, that, by the revocation of the said in-part-recited will by the said in-part-recited indenture, as touching the said annuity and legacy charged on the said several freehold and leasehold lands and premises, the said annuitants and legatee have been wholly unprovided for by the said Henry Giles, deceased,-the defendant did, among other things, thereby agree to permit and suffer the plaintiff to occupy all that part of the said lands and premises in Porthmeor aforesaid then in his possession until the 29th September which should be in the year 1843, he the plaintiff paying therefore on the said last-mentioned day to the defendant, as he thereby agreed to do, the sum of 301. as rent for the same, and then to deliver up the same premises to the defendant, his heirs and assigns, in good tenantable repair, and in the meantime to manage, manure, and cultivate the said premises in good and husbandlike manner, and according to the custom of the country; also to permit the defendant, his heirs or assigns, to enter, with horses, implements, carts, and carriages, at the usual time, to break up for wheat tillage; and upon the plaintiff, his heirs, executors, and administrators, so quitting the said premises, paying the said rent, and observing the other stipulations before mentioned, and releasing the defendant, his heirs and assigns, from all claims of and under the said will, as also releasing and quitting claim to the defendant, his heirs, executors, administrators, and assigns, all the freehold and leasehold lands and hereditaments which were of the said testator devised or bequeathed, given, granted, or demised, conveyed, assigned by or under any former will or settlement of the said Henry Giles, deceased, and which the plaintiff did thereby, for himself, his heirs, executors, and administrators, agree to do, he the defendant, his heirs, executors, administrators, or assigns, should and would well and truly pay unto the plaintiff the sum of 2007., with interest at 4l. 10s. per cent. thereon, to be calculated from the 29th September then instant. And it was by the said agreement further agreed between the parties thereto, that all deeds or releases to be required by the defendant from any or either of the other parties, in pursuance of these presents, should be prepared by the attorney for the defendant, his heirs, executors, administrators, or assigns, at his or their own expense; and the defendant did, for himself, his heirs, executors, and administrators, promise and agree with the plaintiff to execute any release, to be prepared at the expense of the plaintiff, his executors or administrators, from all claims to any household furniture or farm stock late of the said Henry Giles, deceased, or to rent in respect of that part of Porthmeor then occupied by the plaintiff in respect of such occupation, either under the said Henry Giles, deceased, prior to the date of the said indenture of the said 22nd March, 1841, or from the said last-mentioned date up to the said 29th September then instant. [Averment of mutual promises.] And the plaintiff saith, that he hath always, from the making of the said agreement, in all things on his part performed and fulfilled the same; and that afterwards, to wit, on &c., he the plaintiff was ready and willing to quit and deliver up the said premises to the defendant, and to pay the said rent; and that, at all times from the making of the said agreement, he the plaintiff was ready and willing to release the defendant, his heirs and assigns, from all claim of and under the said will in the said agreement mentioned, and also to release and quit claim to the defendant, his heirs, exe cutors, administrators, and assigns, all the freehold and leasehold lands and hereditaments which were by the testator aforesaid devised or bequeathed, given, granted, or demised, conveyed, or assigned, by or under any former will or testament of the said Henry Giles, deceased, aforesaid, and to complete and fulfil the said agreement; and although the said 29th September, 1843, did elapse a long time before the commencement of this suit, and although a reasonable time did elapse before the said last-mentioned day and the commencement of this suit, for the payment of the said sum of 2007., and interest as aforesaid, according to the said agreement of all which premises the defendant always had notice; and although no release was prepared by the attorney of the defendant on or before the said last-mentioned day, under and according to the said agreement. Breach, non-payment of the said sum of 2007., with interest from the said 29th September. Pleas: secondly, that the plaintiff was not ready and willing to quit and deliver up the said premises so in the possession of the plaintiff as in the said agreement mentioned, and to pay the said rent, in manner and form, &c.; thirdly, that the plaintiff was not ready and willing to release the defendant, his heirs and assigns, from all claims of and under the said will, and also to release and quit claim to the defendant, his heirs, executors, administrators, and assigns, all the freehold and leasehold lands and hereditaments which were by the said testator devised &c. under any former will or settlement of the said Henry Giles, deceased, and to complete and fulfil the said agreement, in manner and form, &c.—Special demurrer, and joinder therein. The following were the plaintiff's points for argument: -To the second plea, that the traverse is of an immaterial averment, that the undertaking of the defendant to pay the money was an independent undertaking, and that the declaration would have been sufficient, without averring a readiness and willingness on the plaintiff's part to perform the several engagements contracted by him; that the plea mixes up two matters essentially distinct, as to which there ought to have been separate pleas. To the last plea, in further support of the objection of immateriality, that it was not sufficient for the defendant to deny simply that the plaintiff was ready and willing to release &c., but the defendant ought to have averred that he himself tendered a release; and moreover, that the fulfilling and completing of the said agreement, which is also included in the traverse, and which must be taken to mean the fulfilling and completing of everything in the agreement to be done by the plaintiff, was clearly not a condition precedent, and was consequently an immaterial averment, which the defendant could not properly traverse. The defendant's points for argument were-That the quitting of the lands in Porthmeor by the plaintiff in good repair, and the payment of the 30% as rent for the same, were a condition precedent to the right of the plaintiff to receive the 2007., and that the declaration does not allege the performance of the condition, nor any excuse for the non-performance. That the execution of the release was also a condition precedent to the payment; and that, although the omission of the defendant to have the same prepared within a reasonable time after the 29th September might be an excuse for the non-performance, such omission is not alleged; and the averment in the declaration, that the same was not prepared on or before the 29th September, is immaterial. That performance of the condition precedent, to manage the premises in a husbandlike manner, is not alleged. That the pleas raise material and proper issues. The demurrer was argued in Easter Term, by obliged to do the first act." (Pordage v. Cole, 1 Wms. Saund. 320 e, note 5, 6th ed.; Hall v. Bainbridge, 5 Q. B. Rep. 233; 8 Jur. 171). [Lord Denman, C. J.-Part of the consideration for the promise of the defendant may be the promise of the plaintiff, and part the delivery of the premises and the execution of the release: if any part is a condition precedent, it ought to be averred.] The stipulations on the part of the plaintiff relate to a time antecedent to the 29th September, 1843, when the 2007. is payable. [Patteson, J.-How does that appear?] An action would lie for the breach of the stipulation to repair, and to cultivate the farm according to good husbandry in the meantime. (Boon v. Eyre, 1 H. Bl. 27, n. (a); 2 W. Bl. 1312). Another test is, whether the damages resulting from the breach of any one stipulation are capable of being ascertained by a jury, or by the agreement itself. The damages resulting from the breach of a stipulation to cultivate land must be ascertained by a jury; the damages resulting from non-payment of rent are ascertained by the agreement itself. (Ritchie v. Atkinson, 10 East, 295; Campbell v. Jones, 6 T. R. 570: The Duke of St. Alban's v. Shore, 1 H. Bl. 270; Carpenter v. Cresswell, 1 M. & P. 66; Dawson v. Dyer, 5 B. & Adol. 584 ; Sterens v. Curling, 3 Bing. N. C. 355). Montague Smith, contra.-The proper application of the principle is stated by Taunton, J., in Rose v. Polton, (2 B. & Adol. 831): "There is a well-known distinction between cases where the consideration for doing a thing is the doing of some other thing, and where it is merely the covenanting to do such thing." If the defendant was to quit the estate at the time he got the money, he must aver readiness and willingness to do so. No time at which the 2007. is to be paid is expressly stated: only one act is to be done by the defendant, viz. the preparation of the release. The plaintiff must aver that he was ready and willing to execute the release, and that the defendant had not tendered it. (Jones v. Barkley, 2 Doug. 684; Glazebrook v. Woodrow, 8 T. R. 366). [Patteson, J.-Must the defendant have averred readiness and willingness to pay the 2004, if he had given up the premises?] The object of the release is to make an end to all questions and claims under the will. (Goodison v. Nemer, 4 T. R. 761; Chanter v. Leese, 4 Mee. & W. 295). The consideration for the defendant's promise cannot be apportioned— how much of it is to be referred to the release, and how much to the quitting of the estate. If the averments of readiness and willingness are struck out as immaterial, how would the breach be laid? If they are material, they are denied by the pleas. Butt, in reply. Cur, adv. vult. Lord DENMAN, C. J., now delivered the judgment of the court.-The first question in this case is, whether the declaration be sufficient. It is objected to on the ground that the plaintiff has only averred his readiness and willingness to deliver up the premises, to pay the rent, and to release the defendant; whereas the defendant contends that those things were conditions precedent to his paying the 2007. under the agreement, and, Butt, for the plaintiff.-The stipulations between the therefore, that the plaintiff ought to have averred the parties to the agreement are not mutual considerations actual performance of those things. The plaintiff, on the one for the other, but independent stipulations; the other hand, contends that those things to be done and the act to be done by the plaintiff under the agree-by him, and the payment of the 2007. by the defendant, ment is not a condition precedent. (Pordage v. Cole, were independent acts altogether, and that his averment 1 Wms. Saund. 320 a,note 4, 6th ed.) Where two acts of readiness and willingness to do them was unnecesare to be done at the same time, as where A. covenants sary, and not traversable; and that the defendant in to convey an estate to B. on such a day, and in con- traversing them has tendered immaterial issues. sideration thereof B. covenants to pay A. a sum of money on the same day, neither can maintain an action without shewing performance of, or an offer to perform his part, though it is not certain which of them is May 1.-Before Lord Denman, C.J., Patteson, Williams, and Wightman, JJ. We think that the plaintiff is clearly wrong in his view, and that these acts of each party are clearly not independent. The words are, "upon the plaintiff doing so and so, the defendant promises to pay 2007." The time for paying that 2007. is not fixed by the agreement itself, and cannot be fixed otherwise than by the plaintiff doing the acts required on his part. The cases collected in the notes to Pordage v. Cole (1 Saund. But the plaintiff objects to the pleas on other grounds: -to the second, that it is multifarious, inasmuch as it puts in issue two distinct things,-the plaintiff's readiness and willingness to pay the rent, and also to deliver up possession. Now the plaintiff was bound to do both acts; the issue, therefore, has not cast upon him too great a burthen of proof: and although the non-readiness to do either would have been an answer to the action, yet it does not necessarily follow that the defendant was bound to traverse them separately. The principle laid down in Stubbs v. Leeson, (1 Mee. & W. 728), Drew v. Lainson, (11 Adol. & Ell. 529), and More v. Boulcott, (1 Bing. N. C. 323), is, that a traverse is too large where it casts more proof on the other side than is necessary to maintain the pleading which contains the allegations traversed. That is not so here, and therefore we think the second plea is not objectionable on that ground. Judgment must therefore be given for the defendant on that plea. 4 Poor-rate in which the Overseers omit a Class of Inhabitants on account of Poverty is not void. In Michaelmas Term, (Nov. 24), a writ of mandamus issued to John Mosley Gilbert Cheek and Thomas Shekell, Esqs., two justices of the county of Worcester, commanding them to grant a warrant of distress for levying upon the goods of John Rodd Griffiths, of the parish of Broadway, the sum of 57. 10s. 101d., assessed upon him by a rate for the relief of the poor of the said parish on the 12th September last. The issuing of the writ was opposed by Pashley, on behalf of John Rodd Griffiths; and on making the rule absolute* the Court granted a rule calling upon the prosecutors of the said writ and the said justices to shew cause why the return to the said writ should not be made and joined in the names of the said justices, but expressed to be made and joined on behalf of the said John Rodd Griffiths; and why the said John Rodd Griffiths should not be at liberty to frame such return, and conduct the subsequent proceedings thereon at his own expense. It appeared from the affidavits, that John Rodd Griffiths and three other persons were the only inhabitants who resisted the rate in question. A prior rate was made on the 10th July, and, upon a summons for the purpose of enforcing it, its validity was questioned, on the ground of a deficiency in the notice of publication, which was signed by one of the overseers, and by another person purporting to sign for another overseer. The justices were of opinion that the rate was invalid on that ground. Thereupon the rate in question was made; and, upon a summons for the purpose of enforcing that rate, it was objected that the former rate had been duly allowed before publication, and therefore that the second rate was concurrent and illegal. justices declined to grant a distress warrant. The that enactment was, that the justices might be relieved from making the return upon their own application: these justices do not make such an application. The party making the application must shew some sound ground for impeaching the rate: he does not swear that he is charged too much, but only that the publication of the first rate was not valid. Martin and Greaves shewed cause. This application is made under sect. 4 of stat. 1 Will. 4, c. 21, which To the third plea the plaintiff objects, that, as it ap- gives the court a discretionary power to allow a party pears by the agreement set out in the declaration that claiming any right or interest in or to the matter of the the release to be given to the defendant must be pre-writ to come in and frame the return. The object of pared by the defendant's attorney, and as it is averred in the declaration that no such release was prepared, the plaintiff's readiness and willingness to have executed the release, if prepared, becomes immaterial; and we think that this objection must prevail. If no release was prepared by the defendant's attorney, the plaintiff might sue the defendant for the money, whether he was ready to have executed it or not: indeed, if none were prepared, it would be difficult for the plaintiff to prove his readiness to have it executed, for he was not bound to call upon the defendant to prepare a release, or to offer to execute one. If, on the other hand, a release was prepared by the defendant, he should have pleaded that fact, and shewn a refusal by the plaintiff to execute. Upon the demurrer to this plea, therefore, we think the issue is immaterial, and that the judgment must be for the plaintiff.-Judgment for plaintiff on the third plea; for defendant on the second plea. HILARY TERM. THE QUEEN v. CHEEK and Another.-Jan. 22. The Court has a Discretion, under Stat. 1 Will. 4, c. 21, s. 4, whether it will allow a Return to a Mandamus to be made and joined on behalf of a third Person, claiming a Right or Interest in or to the Matter of the Writ. Therefore, where a Mandamus had been issued to Justices to grant a Distress Warrant for levying a Poor-rate, the Court refused to permit a rated Inhabitant, who did not shew any substantial Objection to the Rate, nor state his bonâ Fide Belief that he had sufficient Grounds for making a good Return to the Mandamus, to frame the Return, and conduct the subsequent Proceedings. Montagu Chambers, (with him was E. Bearan), for the magistrates.-The justices desire not to be impeded in the execution of their duties; and their impression is, that, if Mr. Griffiths is joined with them in making the return, they will be impeded. If this rule is made absolute, it will be a precedent, that, in all cases where the justices are called upon to issue a distress warrant, the party against whom it is to be issued has a right to come and to be joined in making the return. The justices cannot join the applicant in making a return. Pashley, contra.-I concede that it is impossible for the applicant to join the magistrates in making a re *Nov. 24.-Pashley contended that upon an application to justices to grant a distress warrant for levying a poor-rate, they were called upon to exercise judicial functions, and therefore, when they had heard this application and refused to issue their warrant, this Court would not interfere. [He cited Harper v. Carr, (7 T. R. 270); Skingley v. Surridge, (11 Mee. & W. 503, 514); R. v. The Guardians of the Poor of Canterbury, Reg. v. The Justices of Kesteven, (3 Q. B. Rep. 810; 8 Jur. (4 Burr. 2290); Reg. v. Morgan, (2 Adol. &. Ell. 619, n.); 445); Reg. v. The Justices of the West Riding of Yorkshire (In the Matter of Bastow), (1 Q. B. Rep. 624, 631; 5 Jur. 824).] Lord DENMAN, C. J.-It is the constant practice to call upon magistrates by mandamus to grant a distress warrant for levying a poor-rate. turn; the return will be made by the applicant in their name. The rule follows the words of the statute. [Lord Denman, C. J.-The form of the rule is therefore right; but might any other parishioners come and ask the same thing?] Any person who will be prejudiced by the issuing of the peremptory mandamus may do so. (Reg. v. Paynter, 9 Jur. 926). [Chambers. In that case the justices concurred.] As soon as the return is made in the name of the justices, they will be freed from all liability to costs. [Patteson, J.The statute does not seem to contemplate the making a person party to the return after the writ has issued: it says, that, "upon the appearance of such other person," the Court may exercise all the powers and authorities, and make all such rules and orders applicable to the case, as are given by the Interpleader Act.] The Court, on granting the rule, said that the matter might be discussed now. The ground of objection is, that 121 persons are omitted from the rate, and therefore it is not a rate upon all the inhabitants, in pursuance of stat. 43 Eliz. c. 2, but on a class only of the inhabitants. [Erle, J.-Is not that omission a ground of appeal? It does not make the rate void.] If it were an accidental mistake, it would be ground of appeal. [Erle, J.-If the omission of one inhabitant would not make the rate void, the omission of 100 does not.] Then a rate on one inhabitant would not be void. [Coleridge, J.-Just so. Erle, J.-The rate might be quashed on appeal: it does not follow that it is void.] The 121 persons are omitted on account of their poverty; but that cannot be done in the first instance by the overseers, but only upon application to the justices, in whom the law vests the discretion. The recent statute enacts, that whatever is done under a peremptory writ shall be taken as a good proceeding. [Coleridge, J.-That statute contains a provision, that if, on appeal, the rate is held bad, payment of it shall be refunded, or set against the next rate: there is therefore no hardship. The applicant is within the words of the act, which incorporates the Interpleader Act, (1 & 2 Will. 4, c. 58), and is to be taken as part of it, though not passed till the session after. Here it is shewn that a right is claimed by a third party. [Patteson, J.-What right is claimed by this applicant?] He claims to be free from liability to the rate in question. [Patteson, J.-He does not say that he is not liable to pay any rate, but he claims to pick holes in this particular rate.] He would be entitled to an issue under the Interpleader Act. Lord DENMAN, C. J.-The words of the stat. 1 Will. 4, c. 21, give the Court a discretion as to whether they will permit a third person to become an acting party in making the return; and I am clearly of opinion that we ought not to give such permission to the applicant in this case. He does not state that the rate is unfair or void; nor does he state his bonâ fide belief that he has sufficient grounds for making a good return to the writ. No useful object is proposed to be gained by granting this application. PATTESON, J.-Under the Interpleader Act, we require that the party making an application should shew us that he has some reasonable claim: so here, we are not bound to let in every person who says that he has a claim. The words of the statute shew this. This applicant only makes some frivolous objection to the rate. COLERIDGE, J.-Even supposing all the objections stated by the applicant were good, still I should concur in the judgment of the Court. We ought to refuse this application, in order to prevent minute points being raised beside the merits. ERLE, J.-I will only add, that it is a matter of importance that the poor-rate should be levied without delay; and here no substantial objection to the rate appears.-Rule discharged. BAIL COURT.-TRINITY TERM. By the Terms of an Award, as set out in the Declaration, the Defendant was to pay the Plaintiff a given Sum of Money in Bills or Cash on a given Day. The Defendant demurred to the Declaration upon three Grounds: first, because it was not alleged that the Day for the Performance of the Award had arrived before the Commencement of the Action; secondly, because it was not alleged that the Defendant had Notice of the Award before that Day; and, lastly, because it was not said that he did not pay either in Bills or Notes, but simply that he did not pay. The Court refused to act under the Demurrer as frivolous; but, semble, that the last two Grounds of Demurrer were frivolous, and that the Court would have set the Demurrer aside had it not been for the first Ground. This was a rule calling upon the defendant to shew cause why the demurrer to the declaration should not be set aside as frivolous, with costs. The action was in assumpsit on an award, and the following is a copy of the declaration:"The 21st day of May, A. D. 1846. "London, to wit.-Ralph Naters, the plaintiff in this suit, by John Stevenson his attorney, complains of Theophilus Jonas Sutton, the defendant in this suit, who has been summoned to answer the plaintiff in an action on promises: For that whereas, before and at the time of the making of the promise of the defendant next hereinafter mentioned, divers disputes and differences had arisen and were then pending between the plaintiff and the defendant, touching and concerning certain accounts between them relative to a certain brig or vessel called The Lady Margaret, whereof the plaintiff had been and then was owner, and whereof the defendant had been master; and thereupon, for the putting an end to the said disputes and differences, the plaintiff and the defendant heretofore, to wit, on the 30th day of October, A. D. 1845, respectively submitted themselves to and agreed with each other to be bound by, to obey, and to perform the award of one Joshua Prowse, to be made between them of and concerning these disputes and differences, and authorised and empowered the said Joshua Prowse to settle the said accounts up to the 15th day of November, A. D. 1845, and to receive or to pay in bills of exchange or cash any balance of such accounts as might be due to or from each or either of them; and in consideration thereof, and that the plaintiff, at the request of the defendant, then promised the defendant to perform the award of the said Joshua Prowse, to be so made between the plaintiff and defendant of and concerning the said disputes and differences in all things on the plaintiff's part to be performed the defendant then promised the plaintiff to perform the said award in all things therein contained on the defendant's part to be performed; and the plaintiff in fact saith, that the said Joshua Prowse, having taken upon himself the burden of the said arbitrament, afterwards and within a reasonable time then next following, to wit, on the 28th day of November, A. D. 1845, made his certain award between the plaintiff and the defendant of and concerning the said disputes and differences so referred to him as aforesaid, and did thereby decide, award, settle, and determine, that there was due from the defendant to the plaintiff the sum of 1147. 10s. 10d. on the settlement of all the accounts so referred to him as aforesaid, and that the defendant should pay to the plaintiff the said sum of 1147. 10s. 10d. at twelve o'clock at noon on the 4th day of December, 1845, at the office of Mr. Thomas Smith, the North British Insurance Office, Sandhill, in the town of Newcastle-upon-Tyne; of which said award the defendant afterwards, and before the commencement of this suit, to wit, on the 28th day of November, A. D. 1845, had notice; yet the de |