1804. MULLOY versus BACKER. indeed admitted that the court of admiralty does very often give up the goods of passengers; but it must be admitted also, that the admiralty has a power to adjudge them to the captors, and that they do not go to the original owners of the ship. In case the right to the claimant's goods is to be admitted, that court will order them to be restored to him; but he cannot have them legally without such order," LE BLANG, J." It is not necessary to give an opinion upon the case of Luke v. Lyde; but we may consider this demand for passage-money the same as if it were only freight for the goods. If it was a case of goods, and similar to Luke v. Lyde, even then the plaintiff would be entitled to recover, not because any thing is due under the original contract, but because our courts having acknowledged the contract on the marine law, he is then entitled to a quantum meruit for something which may be sufficient to raise a new assumpsit upon, and may so recover for some benefit antecedently done to the defendant or some labour performed with a view to his benefit. But here the ship is captured, the plaintiff is a prisoner, and every thing of value, every benefit to be derived from his ship, every thing earned by her belongs to another person. There is, therefore, nothing upon which to found a new assumpsit, And although there has not yet been a condemnation of the ship, I am at a loss to consider how the plaintiff can stand in a different situation than he would have been in if there had been an actual condemnation." JUDGMENT OF NONSUIT." The case was drawn up that there should be judgment for the defendant; but that advantage was waved by the defendant's counsel, All affidavits in a cause, excepting affidavits of the cause of action before process sued out, must be entitled with the names of all the parties, and the plaintiffs and defendants, and with their respective christian names, The rule of court need not be so entitled. THIS was a rule to refer it to the master to compute interest, &c. upon a bill of exchange. Affidavits were filed for the purpose of opposing it upon some special circumstances; but they were entitled with the christian name of only one of the plaintiffs, omitting the christian names of the others. They were objeeted to on that ground. Lord ELLEN BOROUGH, C. J. "It must be understood that in all cases of affidavits in a cause, they must be entitled by stating the names of all the parties, both plaintiffs and defendants, with their respective christian names also: although it is not necessary to state them so in the rule. The reason for requiring it in affidavits is in order that, if requisite, the parties may be indicted for perjury." THE MASTER referred the court to a case in the Term Reports, probably Fores v. Diemar.* The court refused to permit the affidavits to be read, and the RULE WAS MADE ABSOLUTE. 1804. NOEL and Otherg versus WIGLEY versus JONES.-June 19. In an action against the marshal for an escape on mesne process, the plaintiff declared on a commitment on habeas corpus by a judge at 1804. chambers, with a prout patet per recordum, and on the trial produced no record in evidence, but the writ from the office of the clerk of the papers of the K. B. prison Held, that this is only quasi a record, but good evidents, there being no mode of recording such a commitment in practice, and the prout patet is surplusage. Aliter in the case of a commitment za execution. Wister THIS was an action against the defendant, the marshal of the King's Bench prison, for 341. 9s. damages sustained, by the escape of one Mary Bergeret de Troncille out of the custody of the defendant. The declaration stated that the said M. B. de T. was indebted to the plaintiff in 341. 9s. and that in Trinity term last, he sued out a bill of Middleser, indorsed to hold to bail for the said sum of $41. 9s. and that under such precept, the said M. B. de T. came into the custody of the sheriff of Middlesex. That the said M. B. de T. being in such custody, for the cause aforesaid, on the 24th day of September, in the year aforesaid (1801), was brought before Sir Simon Le Blanc, knight, then one of the justices, &c. at his chambers in Serjeant's Inn, Chancery lane, by virtue of a certain writ of habeas corpus, issuing out of the court of our said lord the king, &c. and directed, &c. “ and the said M. B. de T. was thereupon committed by the said Sir S. Le Blanc into the custody of the defendant, at the suit of the plaintiff, in the plea aforesaid, and for the cause aforesaid, there to remain until, &c. as by the record thereof now remaining in the said court of our said lord the king, before the king himself, manifestly appears," by which said commitment, &c. The declaration then stated the escape. The plaintiff, in support of his case, at the trial before Lord ELLENBOROUGH, C. J. at Westminster, proved the debt due from the prisoner, the affidavit of debt, and the arrest; and then produced the habeas corpus upon which the prisoner was removed from the custody of the sheriff; and committed by Le Blanc J. to the custody of the defendant. This writ was produced by the clerk of the papers of the King's Bench prison, which he stated was filed with him as clerk of the papers. Upon which it 1804. versus Josra. was objected by the defendant's counsel that the production of the writ, in the hands of the clerk of the Wretay papers, did not support the averment in the declaration, "as by the record now remaining in the said court of, &c. manifestly appears;" and they cited Turner v. Eyles. The plaintiff having gone through his case, the defendant proved that at the time the prisoner escaped, she was supersedable in the plaintiff's action, upon which a verdict of 1s. damages was given for the plaintiff, with liberty for the defendant to move for a nonsuit to be entered on the above point; and a rule nisi was accordingly obtained;-and in Easter term, GIBBS and MARRYATT shewed cause and said; "The writ produced was the record itself, and the only document of record that could be produced." [Lord ELLENBOROUGH, C. J. "Is the word record applicable to any paper in the custody of an individual."] "This is not in the custody of a private person, the marshal is the proper officer for the purpose of keeping this record; there is no other office, roll, or place in which it can be entered and kept.” LE BLANC, J. "Is there any difference between a commitment in term and in the vacation. If the prisoner is committed by the court, in open court, then it is never upon the file of the clerk of the papers of the King's Bench prison. But if it is a commitment by a judge at chambers it goes with the prisoner to the King's Bench prison. In the case of an execution, it is entered upon the judgment-roll." 3 Bos. and Pul, Trin. 43 Geo. III. and 2 Law Journal, 481 1804. WIGLEY versus JONES. LAWRENCE, J. "Why is it not upon mesne process entered upon the roll in the same manner as upon a sci: ffa.? If there is no roll, why not make a roll for the purpose?" GIBBS. "In point of practice, it is never done; though it certainly might be done if it became necessary. In cases of execution, entries are made upon the roll, but never in cases of mesne process. The office of the clerk, of the papers may be considered as the depository of the records of the court for this purpose." Lord ELLENBOROUGH, C. J." Then there is this inconvenience that the records of the court are to be scat tered up and down in the custody of persons over whom the court has no control. The clerk of the papers of the, King's Bench prison is an officer of the marshal, and not of the court. His office is not even in this county. In Turner v. Eyles, the court took it for granted that an act of a judge at chambers would not be available as an act of the court until it was entered of record. Until I read that case, I thought the evidence was sufficient here." MARRYATT then instanced the various offices in which similar records of the court are kept, such as the Filacer's, where the writs are kept and the clerk's of the declarations also, where declarations are kept; and said, that though it never was known that there was any other place for the entering of records of commitments, yet all the precedents agree with the declaration in this case, and if this was not a record, then there hardly ever was an action brought for an escape which in strictness ought to have been maintained. That when the Filacer, upon certiorari, return that there is a writ, he states it as of record, and yet, when it is proved at nisi prius, either the writ itself is produced, or an office copy of it, and not a formal roll. That in the case of bail the recognizance is acknowledged in court, and there is a proper mode of mak 1 |