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1831.

PLANCHE

COLBURN.

had afterwards entered into a new contract to allow them to publish his book as a separate work.

I agree that, when a special contract is in existence and open, the Plaintiff cannot sue on a quantum meruit : part of the question here, therefore, was, whether the contract did exist or not. It distinctly appeared that the work was finally abandoned ; and the jury found that no new contract had been entered into. Under these circumstances the Plaintiff ought not to lose the fruit of his labour; and there is no ground for the application which has been made.

GASELEE J. concurred.

BOSANQUET J. The Plaintiff is entitled to retain his verdict. The jury have found that the contract was abandoned ; but it is said that the Plaintiff ought to have tendered or delivered the work. It was part of the contract, however, that the work should be published in a particular shape; and if it had been delivered after the abandonment of the original design, it might have been published in a way not consistent with the Plaintiff's reputation, or not at all.

ALDERSON J. concurred, and the learned Serjeant

Took nothing

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COBBETT and Others, Assignees of BAKER, a

Bankrupt, v. COCHRANE.

THE Plaintiffs declared, as assignees of the bankrupt Plaintiffs deBaker, for the amount of goods sold by him to De- clared as

assignees, but fendant; and alleged as a breach, that the Defendant ass had not paid Baker or the Plaintiffs, “ assignees as afore- breach in nonsaid.”

payment to

them, assignees Demurrer, that the damage was not alleged to have as aforesaid, accrued to the Plaintiffs, as assignees as aforesaid, and instead of as

assignees as that the Plaintiffs bad shewn no cause of action in any aforesaid: other character.

Held, sufficient on spe

cial demurrer. Merewether Serjt. in support of the demurrer, referred to Bridgen v. Parkes (a), and Henshall v. Roberts. (6)

But

The Court thought there was nothing in the objection, for the words “ assignees as aforesaidmight be rejected as surplusage.

Judgment for Plaintiffs.

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Booty, Demandant; Cameron, Tenant; North,

and Three Others, Vouchees.

IN this recovery there were four vouchees, three of

whom appeared in court; the fourth, who resided in Jamaica, had executed a warrant, in which he was the only vouchee named.

The officer of the Court, thinking that all four ought to haye been named in that warrant, otherwise it did not appear to be the same recovery,

Taddy Serjt. moved that the recovery might pass, contending that the warrant was sufficient, as not being incompatible with a recovery in which four were vouched, and referred to Simmons and three others, vouchees (a), as an authority in point.

The Court thought the warrant was not in the regular form, but on the authority of the case referred to, acceded to the application

Fiat.

(a) 11 B. Moore, 485.

MARKHAM, Plaintiff; BAYLEY, Deforciant.

THIS fine was taken in the West Indies, by commis

sioners under a dedimus potestatem duly acknowledged: the præcipe and concord were signed by the

1831.

commissioners, and the usual atfidavit made by one of them; but one of the commissioners omitted to endorse his name on the dedimus.

MARKHAM,
Plaintiff;

BAYLEY,
Deforcient.

Scriven Serjt. moved that the fine might pass notwithstanding.

Fiat.

HEPWORTH V. SANDERSON.

Nov. 12.

THE Plaintiff in this cause having obtained a rule Plaintiff issued calling on the bailiff of the liberty of Langborough a

the officer of (Yorkshire) to make a return to the sheriff's mandate for a liberty, to the capture of the Defendant under a ca. sa.;

arrest the Defendant on a

ca. sa. DeWilde Serjt. moved to discharge this rule, on an affi- fendant was davit, which stated that, upon the commissioner of the

the commissioner of the afterwards dis

charged, under insolvent debtors' court making his last visit to York, the insolvent the constable of York Castle had certified that the De- debtors' act,

from the cusfendant was in his custody at the suit of the Plaintiff;

the suit of the Flamin; tody of the that the Defendant had been duly discharged under the sheriff of the insolvent debtors' act, and that the Plaintiff, the sole co

e Plaintiff have creditor, had afterwards been appointed assignee of his ing become estate and effects.

the assignee under the dis

charge, Held, Jones Serjt., on the part of the Plaintiff, contended that he was that this was no answer to the rule for the officer of the es

rule the liberty to return the mandate. The officer of the liberty officer of the was guilty of a violation of his duty in transferring the liberty to

return the Defendant to the custody of the sheriff. In Boothman mandate for v. Earl of Surry (a) it was held, that the bailiff of a the capture of liberty, who had the return and execution of writs, was the De

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1831.

ORTH

0.

SANDERSON.

liable to an action of debt for an escape, if he removed a prisoner taken in execution to the county gaol, situate out of the liberty, and there delivered him into the custody of the sheriff; and the Plaintiff's acceptance of the office of assignee, which is a trust for the benefit of a general body of creditors, was no waiver of any claim he might have, as an individual, against the officer of the liberty for misconduct anterior to the date of the assignment.

Tindal C. J. The Plaintiff in this action has obtained the ordinary rule, calling on the officer of a liberty to return the mandate of the sheriff for taking the Defendant into custody upon a capias ad satisfaciendum. A rule has since been obtained to discharge the rule for compelling a return to the mandate; and we think this latter rule should be made absolute. There are many cases in which a plaintiff is not entitled to call for the return of a writ; as where he has taken an assignment of the bail-bond, or has otherwise so conducted himself as to shew that he is contented. Thus, when he has acted as his own bailiff, or when, after an arrest, he has met the defendant and accepted a sum in discharge of all claims, can he call for a return of the writ? Put the case of the bankruptcy of the defendant, and the plaintiff becoming his assignee, could he sue the sheriff and obtain a separate compensation? The merits are the same here; for after the arrest, the Plaintiff consents to become assignee under the insolvent debtors' act, and has all the Defendant's property; he is estopped, therefore, to go into the question of escape, which, at all events, is an escape in law only, and not in fact. After becoming a party to the deed of assignment, which would not have been made, unless the Defendant had been in custody and discharged, the Plaintiff has admitted that the custody was an existing legal custody;

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