
    
      Houston and Cullen, for the appellants.
    
      THOMAS SIMPSON vs. SAMUEL WARREN.
    On a special count in assumpsit, on an executory contract, the plaintiff cannot recover by proof of an executed contract.
    This was an action on the case, for the sum of $150; a reward offered for the apprehension of a runaway negro. Special count on the contract, stating that two negroes ran away from the defendant; that he offered $300 for their arrest and return, or $150 for either one; and that plaintiff arrested and returned one of them.
    On the 15th of September, 1850, negro Robert Carlisle fled from his master, Samuel Warren, and embarked on Captain Errickson’s vessel, in Murderkill creek, where he represented himself to be a free boy. Before they got out of the creek, Capt. Errickson heard that the boy was a slave ; and, giving him in charge of the mate, he started to see Samuel Warren. This was early in the morning of the 16th. On the road he learned that Samuel Warren had gone to Dover, to advertise the boy. He then returned to get him, and take him to Samuel Warren’s house ; but in his absence, the plaintiff came to his vessel and took the boy away. In the meantime, Warren had notices advertising the reward printed and posted in Dover.
    On these facts, Mr. Smithers, for the defendant, contended—1. That as the boy was arrested and about to be delivered by Errickson, before he was seized by Simpson, the latter could not claim the reward. 2. That the arrest by Simpson was before the reward was offered; and the declaration being a special count on the contract, arising on the advertisements, that is, on an executory contract, it was not supported by proof of an executed consideration. The plaintiff could recover only on a count on the quantum meruit, or on a count stating the executed consideration, and the subsequent promise arising from the notices.
   The Court

charged that the contract declared on was an execu-

tory contract, and left it to the jury to say whether the proof made it out the case of an executed contract. It is also true, that if work be done without any contract, the value of it cannot be recovered on a count on a special contract, but is properly recoverable on the quantum meruit; but the question here was one of fact, whether the plaintiff did bring himself under the conditions and terms of this notice for a reward.

Nicholson, for plaintiff.

Smithers, for defendant.

Verdict for defendant.  