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![handle is hein.slavery/ssactsengr0083 and id is 1 raw text is: GILES V. GILES
power we can have by mandamus over the sessions or the county. The statute, of
course, has not provided for the case of magistrates not doing their duty.
Williams J. The case is, in substance, disposed of by the admission of counsel.
We ought to have had some authority for holding that the justices of Radnorshire
had the power to make an order for payment to the overseers of Heyop out of the
county fund. Something like an approximation may be made to this by general
analogies : but there is nothing like an authority under this statute. The case, there-
fore, comes to this. The parish of Heyop has paid a sum which it was not bound to
pay; and therefore, it is said, we ought to grant a mandamus for the purpose of
relieving it. That is a conclusion we ought not to adopt.
Rule discharged (a).
[164] JOSEPH GILES against HENRY GILES. 1846. Declaration stated that, by
agreement between plaintiff and defendant, two brothers, defendant, in considera-
tion of natural affection and for other considerations him moving, agreed to
permit plaintiff to occupy lands of defendant to 29th September, plaintiff paying
a sum named as rent on that day, as he thereby agreed to do, and then to deliver
up the premises to defendant; and, upon plaintiff so quitting the premises, paying
the rent, and releasing defendant from all claims under their father's will, and
quitting claim to all lands which were of the father, which plaintiff agreed to do,
defendant would pay plaintiff 2001., with interest from 29th September : and it
was agreed that all deeds and releases to be required by defendant should be
prepared by his attorney at his expense. Averment of mutual promises; and
that plaintiff, on 29th September, was ready and willing to deliver up the premises
to defendant, and to pay the rent, and was at all times, from the making of the
agreement, ready and willing to release, &c. That, although 29th September
and a reasonable time thence for the payment of the 2001. had elapsed, and no
release was prepared by defendant's attorney, defendant had not paid the 2001.,
with interest. Plea : that plaintiff was not ready and willing to quit and deliver
up, and to pay the rent. On special demurrer: Held : that the performance of
plaintiff's promises and that of defendant's undertaking to pay were conditions
concurrent; and therefore the averment, in the declaration, of readiness and
willingness was sufficient without averment of actual performance, but that such
averment of readiness, &e. was material ; and, consequently, the traverse in the
plea answered the declaration. And that the plea was not double, because
plaintiff was bound to be ready; &c. both to pay and to deliver possession, and
the plea cast on the plaintiff no more proof than was necessary to maintain the
declaration. Another plea traversed the plaintiff's readiness and willingness to
release. On special demurrer: Held bad, because it was averred in the declara-
tion that no release was prepared by defendant's attorney as provided in the
agreement, and therefore plaintiff's readiness to execute it, if prepared, was
immaterial.
[S. C. 15 L. J. Q. B. 387 ; 11 Jur. 83.]
Assumpsit. The declaration stated that heretofore, to wit 21st September, 1840,
by an agreement then made, by defendant of the first part, plaintiff of the second
part, and John Giles of the third part, reciting that Henry Giles the Elder (deceased),
father of defendant and plaintiff and of Ann Giles wife of the said John Giles, made
his will, dated 3d June, .1839, whereby, after giving an annuity of 301. to plaintiff,
and to other parties two other annuities and a legacy, he devised to defendant all his
freehold lands in Porthmeor, and all his leasehold lands in Rosemergee and Bojewyan,
habendum, the freehold lands to defendant in fee, and the leasehold lands to defen-
dant, his executors, &c., for all such term, &c. as might be to come at the time of
testator's death, subject, as to the freehold lands, to the [165] annuities and legacy,
and appointed defendant sole executor and residuary legatee and devisee; reciting
also that, by indenture dated 22nd March 1841, between the said H. Giles the Elder
of the first part, defendant of the second part, and Charles Paynter of the third part,
H. Giles the Elder demised to Paynter, his executors, &c., for two thousand years,
(a) See Regina v. St. Andrew's, Worcester, 4 Q, B. 729.
And see stat. 8 & 9 Vict. c. 126, sects. 57 to 64: and stat. 9 & 10 Vict. c. 84, s. 8.
1237
9 Q. B. 164.](ViewImageLocal?handle=hein.slavery/ssactsengr0083&div=1&collection=&method=preview&ext=.png&size=3)