1834. MELLOR v. BADDELEY. original proceeding which formed the alleged ground of Exch. of Pleas, the action is at an end." In this case the conviction under 1 & 2 Will. 4, c. 32, being summary, section 44 gives to the party convicted an appeal from it to the quarter sessions, provided he gives the complainant a notice in writing within three days after such conviction, and shall also either remain in custody till the sessions, or within such three days enter into a recognizance to appear and try such appeal. The plaintiff in this case neither gave notice of appeal nor entered into such recognizance, but suffered the punishment awarded on the conviction. Therefore, as he acquiesced in it, that was evidence of probable cause. Rule refused. HATSALL V. GRIFFITH. THIS At the trial, before Gurney, B., at the Guildhall sittings in this term, it appeared that the plaintiff was the owner of twenty-one sixty-fourth parts, and two other persons, named Brown and Prothero, of the remaining shares in the vessel in question. That the defendant was employed by Brown and Prothero to sell the vessel, which he accordingly did, and, after the sale, paid over to Brown and Prothero their proportion of the purchase money, but refused, without their authority, to pay the plaintiff his share. It was objected for the defendant, that the plaintiff could not maintain a separate action to recover his share, but that the other two part owners it was not maintainable, and that A. could not sue alone. 1834. Exch. of Pleas, should have been joined in the action. The learned Judge nonsuited the plaintiff, but gave him leave to move to enter a verdict. HATSALL V. GRIFFITH. F. Pollock now moved accordingly. It will be said, that the contract was a joint contract with the three part owners, and that the plaintiff cannot sue separately; but it is submitted, that every part owner in a ship is entitled to sell his share without the consent of the other owners, and therefore, as soon as the amount of his share is ascertained, it becomes his separate property, and he may sue alone. In an action for freight, the rule is different, and the reason given in Abbott on Shipping, p. 82, 5th edition, is, that all are partners with respect to the concerns of the ship, but that is not so in respect of the ownership of the vessel. [Lord Lyndhurst, C. B.-The question is, whether the contract by the defendant to sell was made with all the owners jointly; for if the contract was made with them jointly, they must sue jointly. Parke, B.-Was the defendant employed by all to sell the entire ship, or by each to sell his own share? Lord Lyndhurst, C. B.-Suppose there are three joint owners, one of whom manages the whole concern, and, by agreement with the other partners, the managing owner employs a broker to sell the ship, is he not employed for all, and can one sue alone?] The argument must go to that extent. It is laid down in 1 Chitty on Pleading, 6, that, "in case of a joint interest, if two out of three parties have been paid their shares, the third may, in respect of such severance, sue alone for his proportion;" and Ganet v. Taylor, 1 Esp. Nisi Prius, 117, is cited. In that case three persons employed the defendant to sell some timber in which they were jointly concerned: the defendant paid two of them their exact proportion, and took a receipt from them in full of all demands: the third brought his action for the remainder, being his share. It was objected, that as this was a joint employment by the 1834. three, one alone could not bring his action; but Lord Exch. of Pleas, Mansfield ruled, that he might, as there had been a severance. The case of Sedgworth v. Overend (a) is also cited in support of the position, but that was an action of tort, and it may therefore be said, that it is no authority in this case. HATSALL V. GRIFFITH. Lord LYNDHURST, C. B.-There is nothing to lead to the conclusion, that the contract here was separate. Persons who have separate interests in a ship may jointly agree to authorize another to sell the entirety for them. In this case, Brown and Prothero, as the agents for the three, employed the defendant to sell the vessel in question. He has paid them the amount of their shares, but, for his own security, has refused to pay over the residue to the plaintiff without the authority of those who employed him. I think he was justified in so doing. PARKE, B.-One mode of trying whether this was a joint or a separate contract is, to ask against whom would the defendant's remedy for his commission have been, if the money had not been paid. If two had become insolvent or bankrupt, would he have been entitled to recover his whole commission from the third, or only to a per centage on each share from each? There was a case on this subject, Break v. Douglas, in the King's Bench, a short time since, which is not reported. It was an action by the part owner of a ship against an insurance broker to recover a sum received from the underwriters. The Court decided, under the special circumstances, that he was entitled to recover his share. I certainly differed from the other Judges, as I thought it was a joint employment, and that the remedy ought to have been joint against the broker by the owners, and against them by him for com Erch. of Pleas, mission. So, in this case, I think that there was a joint 1834. HATSALL v. GRIFFITH. employment by all the owners to sell the entire ship, and if the defendant had sold the shares of one separately, that would have been a breach of contract. In that case all must concur before he is bound to pay over the purchase money. ALDERSON, B.-The want of the joint concurrence of the three appears to have been the ground of the defendant's refusal to pay. Rule refused. It is not essential that the sheriff's warrant on a writ of capias should specify the Court out of issues. ASTLEY V. GOODYER. THE defendant being in custody in this action, in the gaol of Northampton, under a writ of capias Humphrey moved for a habeas corpus to the gaoler of which the writ Northampton, on the ground that the sheriff's warrant omitted to state the Court out of which the writ had issued. He stated, that, before the Uniformity of Process Act, the practice had been to insert that statement, and he also referred to the form of warrant in Tidd's Supplement, p. 274, in which the Court out of which the writ had issued was specified. He urged, that the omission was material, as the defendant would not know where to give bail. [Lord Lyndhurst, C. B.-He is bound to deliver a copy of the writ to the gaoler.] In this instance there are two persons, and there was only one copy; either may have the copy of the writ, but not both, and the person who detained the defendant might not have the copy. Lord LYNDHURST, C. B.-The warrant contains merely the directions of the sheriff to his officer; and how can 1834. ASTLEY บ. GOODYER. it be material to the defendant that it should specify out Exch. of Pleas, of what Court the writ has issued? The bailiff is bound for his protection to deliver a copy of the writ to the defendant. There might have been some ground for the motion if it had been shewn that no copy had in fact been delivered, but that objection is not suggested. Assuming, then, that the warrant was in the form you state, and that a copy was delivered, the defendant from that would know where he was to put in bail. The rest of the Court concurred. Rule refused. POSTAN v. MASSAER. claration con tained counts for not accounting for money arising from the sale of goods THIS was an action of assumpsit against the defendant Where the defor not accounting for the monies arising from the sale of goods delivered to him to be sold, with a count for not returning the goods unsold, and for money had and received. The cause was referred, by order of Nisi Prius, to arbitration, and the arbitrator certified, that a verdict ought to be entered for the plaintiff for a sum under 51. Petersdorff obtained a rule to enter a suggestion on the roll to deprive the plaintiff of costs, under the London Court of Requests Act, 39 & 40 Geo. 3, c. 104, on the ground that the plaintiff had recovered less than 57., and that the defendant was an inhabitant of, and resident the city of London. in, delivered to the defendant to sell, and also counts for not returning the goods unsold, This action being this was not a case within the London Court of Requests Act, and that that act applied only to cases of a liquidated demand. |