In the Exchequer.-Rawstorne v. Gandell. affidavit that he is ready to bring into court, or to pay, or dispose of the subject matter of dispute in such manner as the court may direct; and the court is to make such order as may be just and reasonable. Therefore, the judge is vested with a discretion over the matter which the sheriff brings before him, namely, the seizure of certain goods already in his possession. If, then, the judge, in the exercise of his discretion, directs the sheriff to sell the goods, it would be a monstrous proposition to say, that the sheriff is to be responsible because he has sold the goods under the authority of the court. If in such a case we permitted an action to be brought, we should be doing a grievous injustice to an officer of the court. ROLFE, B.-I have some doubt whether the legislature meant that there should be an interpleader at all, except it disposed of every thing. The judge is to exercise his discretion as to whether he shall make an order or not; and if he sees that there really is any question beyond the mere property in the goods, I am inclined to think that he has no jurisdiction. But after an order has been made, to say that the sheriff is open to another action, because he has acted under the order, seems to me quite preposterous. Rule absolute. RAWSTORNE V. GANDELL.-Easter Term, RELEASE-PLEA PUIS DARREIN CONTINU- In an action by the provisional committee of a projected railway against the engineer of the company, for a breach of contract, two of the plaintiffs executed a release, to which the defendant pleaded puis darrein continuance. The court refused to set aside the plea, it appearing that one of the releasors had a substantial interest in the company, and was not a mere trustee. tions and plans in sufficient time to enable the company to deposit them at the office of the board of trade on the 30th November last. The writ was sued out in the month of January, and issue having been joined, the cause was set down for trial at the Liverpool assizes, on the 21st of March. On the 20th the defendants pleaded puis darrein continuance. A release was executed by J. Duncan and C. Randall, two of the plaintiffs. It was submitted that the release was executed through collusion with the defendants, and in fraud of the other plaintiff; and in support of this view affidavits were produced, which disclosed the following facts:-That a meeting of the shareholders took place on the 21st January, when it was resolved that proceedings should be instituted against the defendants; and that resolution was communicated to the original shareholders, and also to the releasors: it was further resolved, that all shareholders who were desirous of giving up their shares, should receive one guinea on account of the deposit on each share. Two hundred shares had been allotted to J. Duncan, and of these he returned one hundred and fifty. Soon after the present action was commenced, Duncan and three others of the provisional committee filed a bill in chancery against the other committee-men, in order to have the accounts of the company taken under the authority of that court, and to restrain the present action. The other releasor, Randall, had been appointed one of the executive committee, but had never taken any active part in the management of the company. He had received a guinea per share on all the shares allotted to him, and had executed a deed releasing the provisional committee from all claims at law and in equity, in respect of the projected undertaking, but subject to a rateable participation in any surplus fund. Under these circumstances, it was contended that there was clear evidence of Crompton moved for a rule calling on the fraud, inasmuch as Randall had parted defendant to show cause why a plea of with all his interest, and Duncan merely release should not be set aside. The ac- retained a few shares, in order that he tion was brought by the provisional com- might be enabled to defeat the present mittee of "The Liverpool, Preston and action. If this plea were allowed, any North Union Railway Company," against one member of a provisional committee the engineers of the company, for a breach would have all the shareholders in his of contract, in not completing certain sec-power, and might at any time extinguish In the Exchequer.-Proudfoot v. Boile. their rights. Phillips v. Claggett, 11 Mee. | deed having come on for trial, the cause, & W., 84, was referred to. POLLOCK, C. B.-There ought to be no rule. Though one of the releasors has parted with his interest, yet the other has a sufficient interest to entitle him to release. It may be a very wrong thing to do, and one for which the party would be responsible at another tribunal; but if there is the smallest scintilla or right, or real interest, on which the release may operate in law, we cannot interfere. Where complicated interests are involved, we have no machinery to work out the equities of the case; it is better, therefore, to adhere to the law. PARKE, B.-The question comes to this, are the parties who execute the release devoid of all interest, in fact mere names? If it were so, there would be a case of fraud to justify us in interfering; not in deed to set aside the release for that we have no power to do-but to prevent it being pleaded to the prejudice of the other plaintiffs. It appears that Duncan is not a mere trustee, but is substantially interested in the undertaking, for he holds fifty shares, and may therefore execute a valid release, subject to responsibility to his co-partners. In order to induce a court of law to set aside a plea of this nature, it is necessary to make out a clear case of fraud: that has not been done, and the remedy is by bill in equity against Duncan. ROLFE and PLATT, BB., concurred. Rule refused. PROUDFOOT V. BOILE.-Hilary Term, 1846. AWARD-INFANT-COSTS. with two other actions, in one of which the infant apprentice sued by his next friend, were referred to arbitration; the costs of the cause to abide the event, and the costs of the reference and of the award to be in the discretion of the arbitrator, who was to certify to whom and by whom the same were to be paid. The arbitrator awarded that the verdict in the cause should be entered for the defendant, that the two actions should be no further prosecuted, and that the infant should pay the costs of the reference. A rule nisi had been obtained to set aside the award, on the ground that the arbitrator had exceeded his authority, in reference, and also that the award was ordering the infant to pay the costs of the not final, inasmuch as the costs of the reference were ordered to be paid by a person who was no party to the cause. Lush showed cause. The arbitrator had power to order the costs to be paid by any one party to the reference. A submission to arbitration by an infant is voidable only, and unless he comes when he is of full age to set it aside, the court will not interfere. If it is said that the infant is no party to the reference, then he had no right to make the application; if he is a party, he was subject to the control of the arbitrator. The infant, who had a common interest in all the suits, gave the arbitrator power to say by whom the costs were to be paid. Humfrey, in support of the rule. The submission must receive a reasonable construction. When it is said that the costs of the reference are to be in the discretion of the arbitrator, it means that he is to award a portion to be paid by each person, in respect of the particular action to which he is a party. It is the same as if the three cases had been separately re An action of covenant on an apprentice deed hav-ferred. [POLLOCK, C. B.-If several cases ing come on for trial, was referred, together with two other actions, in one of which the infant apprentice sued by his next friend; the costs of the cause to abide the event, and the costs of the reference and award to be in the direction of the arbitrator. The arbitrator awarded that the verdict in the cause should be entered for the defendant, and that the infant should pay the costs of the reference. were referred, and a person, not a party to any one of them, came in by rule of court and made himself a party to the reference, why should not the arbitrator direct him to pay the costs of the reference?] The intention was to apportion the costs: ninetenths of them might have been occasioned by the first cause, to which the infant was no party; and therefore the arbitraAN action of covenant on an apprentice tor should have divided them accordingly. Held, that the award was good. In the Common Pleas.-Slaney v. Sidney.-Dalrymple v. Dawes and another. At all events, the arbitrator has exceeded no interpleader, for the parties do not his authority in ordering an infant to pay costs, inasmuch as the award cannot be enforced against him, for he may avoid it at any time. It is the same as if the arbitrator had ordered any third person to pay them. [ROLFE, B.-In that case the award would be bad on the face of it: it is not so here.] Atherton moved for a rule under the first section of the Interpleader Act, 1 & 2 Will. 4, c. 58. It appeared that the defendant had purchased of the plaintiff several chests of tea, but before they were paid for the defendant was served with notice by a third party, that the tea belonged to him, and requiring the defendant not to pay the price of the tea to the plaintiff. Subsequently the plaintiff brought an action of debt against the defendant for the price of the tea, and the third party sued the defendant in trover. Under these circumstances it was submitted, that as the defendant was willing to bring into court the price of the tea, he was entitled to relief. POLLOCK, C. B.-In the case of James v. Pritchard, 2 Mee. & W., 44, the circumstances were very similar to the present, and this court, after granting a rule to show cause, decided that it was not a case within the Interpleader Act. claim the same thing; the one seeks to have the benefit of a contract, the other to recover the subject matter of it. The price agreed to be paid for the tea may exceed its real value-for a party may make an improvident bargain—but the claimant could only recover the actual value. ALDERSON, B.-The Interpleader Act was intended to be a substitute for the old mode of relief by bill in equity, and it is clear that in a case like this there could be no interpleader in equity. Rule refused. In the Common Pleas. Before the Rt. Honorable Sir NICHOLAS TIN- DALRYMPLE V. DAWES and another.-Hil- WARRANT OF ATTORNEY-JUDGMENT TO BE LY. Where a warrant of attorney, executed by two persons, authorizes the receiving of "a declaration," and the entering up of "a judginent" in "an action," and also the execution of "a good and sufficient release," one joint judgment only can be entered up thereon, and this notwithstanding the authority so given is expressed to be "for us and each of us." Dowling, Serjt., had on a former day obtained a rule nisi to enter up a judgment against one defendant alone, on a warrant of attorney executed by both the defendants. The terms of the authority given to the attorneys therein named, were "to appear for us and each of us, &c., and to receive a declaration for us and each of us, in an action of debt, for the sum of £130, &c., and thereupon to confess the same action, or else to suffer a judgment, &c., to pass against us in the same action, and to be forthwith entered up against us and each of us, of record, &c., and to execute a good and sufficient release," &c. Byles, Serjt., now showed cause.-The question is, whether the instrument in PARKE, B.-In this case there can be question gave authority to enter up not In the Common Pleas.-Moor v. Tuckwell. 99 66 Byles, Serjeant, who showed cause, of fered to give up the verdict as to the sum of £4 58., to which alone the alleged misdirection applied, and to take his verdict for 148. one, but three distinct judgments; and it | term obtained a rule nisi for a new trial, is submitted that the words "a declara- on the ground of misdirection. tion," "an action," "a judgment," a release," impart an authority to enter up but one judgment. King v. Hoare, 13 Mee. & W., 505. Gee v. Lane, 15 East., 592. The words "us and each of us," can only be taken as having a several meaning, when applied to the entering an appearance. Had it been "or each of us,' the case would be different. The case of Raw v. Alderson, 7 Taunt., 454, though having no material bearing on the question, may be quoted to show that on a joint warrant of attorney a judgment against one cannot be entered up. Dowling, Serjt., contrâ.-The words "and each of us," have some meaning, and what other can be given to them than that they confer a several authority? The word "each" must be construed to import severance, on the authority of Kew v. Rouse, 1 Vern., 353; Swift v. Gregson, 1 T. R., 432; Brownsword v. Edwards, 2 Ves. Sen., 243. TINDAL, C. J.-The question is, what is the proper meaning to be given to the words" and each of us?" Now, when I look at that part of the instrument which authorizes the entering up of judgment, I find the words are, "suffer a judgment to pass against us in the same action;" thus referring to one judgment and one action. It then goes on to say, "to execute a good and sufficient release;" contemplating, on the whole, an authority to enter up but one joint judgment against both the parties. The rest of the court concurred. Rule discharged. MOOR V. TUCkwell. NEW TRIAL.-MISDIRECTION. The court refused to grant a new trial on the ground of misdirection, where such misdirection applied itself exclusively to a portion of the demand, which the plaintiff consented to abandon. ASSUMPSIT for work and labor, tried before the judge of the sheriff's court of the city of London, when a verdict was found for the plaintiff, damages £4 198. Shee, Serjeant, in support of his rule, submitted that the court had no power to compel him to consent to a verdict different from that which the jury had found, and that, there being an admitted misdirection, he was entitled to a new trial as a matter of right. Cur, adv. vult. TINDAL, C. J.-This was a rule for a new trial before the judge of the sheriff's court, on the ground of misdirection, and upon no other ground; for, by the rule taken place, we cannot consider whether it was against evidence or not, the damages being under £5. laid down since this mode of trial has Now, the only misdirection being that which related to a separate cause of action amounting to £4 58., and the plaintiff's counsel, on showing cause, consenting to abandon that sum altogether, we think the whole justice of the case, so far as we can look at it, has been attained by the plaintiff's consenting to reduce the damages by the whole sum in respect of which such misdirection took place. It was objected in argument, that the court has not authority to alter the verdict. of the jury. We do not alter the verdict, which still remains a verdict for the plaintiff, with the same amount of damages, unless the plaintiff consents to such alteration; all that we do is, to secure to the defendant the option of paying 148. only, instead of the sum recovered. If, at the time the rule was moved for, we had seen the whole of the facts of the case as clearly as we do now, we should not have granted the rule in its present shape, but, as it often occurs, with a condition attached for a new trial, unless the plaintiff consents to reduce the damages. It is not the practice, as stated at the bar, that in all cases where there has been a misdirection, a new trial must be granted de jure, because a bill of exceptions Shee, Serjeant, on a former day in this might have been tendered; for, where In the Common Pleas.-Manton v. Bales.-Gibbs v. Tonaley. the court can see clearly that real and substantial justice has been done or may be done without a new trial, the rule has been refused. See Edmondson v. Machell, 2 T. R. 4. We therefore treat this as a rule drawn up in the alternative; and as the plaintiff consents that the damages shall be reduced, we make the rule absolute for that purpose, and discharge it as to the new trial. THIS was an action upon the case for fraudulently marking gun-locks of an inferior fabric, with the name of the plaintiff, a gun-maker of repute. At the trial, before Tindal, C. J., at the last Middlesex sittings, the jury found that a sum paid into court (£5,) was sufficient to recover the profit lost to the plaintiff by the sale of four pairs of locks proved to have been sold by the defendant, with the plaintiff's name fraudulently marked upon them, and returned a verdict accordingly. Byles, Serjeant, now moved for a new trial. He submitted that the true grievance was, not the mere loss of profit upon the locks sold by the defendant, but the injury done to the plaintiff's reputation by palming upon the public an inferior article, under the supposed sanction of his name; and therefore, that the jury had estimated the damages the plaintiff was entitled to upon an erroneous principle. Per curiam.-The present case appears to us to fall within the principle of those wherein the courts have uniformly refused to grant new trials, on the ground of the inadequacy of the damages. Virtually the jury have estimated the damages sustained by the plaintiff at the sum of £5, which they had an undoubted right to do. With reference, therefore, to the course adopted on former occasions, we think there should be no rule. Rule refused. GIBBS V. TONALEY. NEW TRIAL.-INSUFFICIENT DAMAGES. When the jury have found for the plaintiff, the court will not grant a new trial on the ground that the damages are insufficient to carry costs, and less than the facts might have warranted. THIS was an action brought against a surgeon to recover damages for alleged neg ligence in the treatment of the plaintiff, whereby it became necessary for him to suffer amputation of a leg. The cause was tried before Parke, B., at the last Norfolk assizes, when the jury returned a verdict for the plaintiff, damages one farthing. Byles, Serjeant, moved for a new trial, on the ground that the damages were clearly insufficient, regard being had to affidavits tending to impeach the testimo the nature of the injury; and he produced ny given at the trial by one of the defend ant's witnesses. The Court took time to consider; and their opinion was afterwards delivered by TINDAL, C. J.-In this case, which was an action against a surgeon for negligence, and in which the plaintiff had a verdict, made by my brother Byles, for a new trial, with one farthing damages, a motion was on the ground of the inadequacy of the damages, and on affidavits in contradiction of the evidence given on the defendant's part by his groom. It is not usual with the court to grant ages are smaller than the court might a new trial, on the ground that the damthink reasonable. Rendall v. Hayward, 7 Scott, 407; and in the case of Hayward v. Newton, 2 Str. 940, the court said it was never done. At any rate, a new trial ought not to be granted on such a ground, unless the judge who tried the cause is dissatisfied with the smallness of the damages, which, as the learned judge has informed us, is not the case in the present instance. In reference to the second ground on which this application is made, it is to be observed that the evi |