May 1803. Muir & anr. V. U. S. Co. NEW-YORK, fix hours, is established at one half their value; and the rule adopted in the English Admiralty, as to falvage, is founded on principles of reciprocity, aud regulated by the laws of that country, to which the recaptured property belonged, yet Sir William Scott declared, on the 7th of December 1798, that it was the practice of the English Admiralty to restore American property on the rule of the English Admiralty, without enquiring into the practice of America. The Englifh rule of falvage is one eighth, if recaptured by a single fhip; and if by the joint operation of two or more, the falvage is left to be fettled by the admiralty, according as it shall judge fit and reasonable. Under the circumstances, then, of this cafe, the rule of falvage would not be confidered as going beyond one eighth. There was not, at least any definitive or certain ground for estimating it higher. And as matter of fact, we find that the falvage was at the time, liquidated and fettled between the confignee and recaptors, at one eighth. The information received by the infured, upon which the abandonment was made, was a mere newspaper account; and if information in any cafe, derived through fuch a channel, would be fufficiently authentic to warrant an abandonment, we think, in the present inftance, it was too imperfect, to afford fufficient data to the insured, to calculate his actual lofs. We are of opinion, therefore, that the plaintiff is not entitled to recover as for a total lofs; nor, that the charges attending the auction, can be confidered as a lofs, within the policy, to be borne by the underwriters. It was a voluntary act of the confignee; done, probably, in confequence of information of the abandonment; and made, therefore, at the peril of the owner. Had the fale at auction been to ascertain the injury the cargo had received, and limited to fuch parts as were damaged, it would have been a reasonable charge; but that appears not to have been the object or effect of the auction. The damage had been previously liquidated by the captain and prize-mafter; and if those damages, together with the falvage paid, be allowed against the defendants, it is all the cafe will warrant. We are therefore of opinion, judgment ought to be for the plaintiffs, for the falvage and damages only. Francis Huguet, affignee of the sheriff, NEW-YORK, F. Huguet V. J. Hallet. Entering into an agreement in the nature of a bail bond, and, THIS was a motion in an action on a bail bond to fet afide the proceedings and execution fued out. It appeared, that soon after the bail bond was profecuted, the attornies for both parties had entered into an agreement, in the nature of rule to stay proa rule, to stay proceedings in the bail bond fuit on the ufual ceedings on a terms. That the defendant had accordingly filed special bail after notice of in the original fuit, and had given the regular notice, but had bail,declaring in the original acnot paid the costs of this fuit, as by the terms of the rule he tion, is a waiver of a right to a was bound to do. The plaintiff, on fpecial bail being en- plea in the bail tered, went on in the original fuit, and in July one thousand bond fuit; if the plaintiff proceed eight hundred and two, obtained final judgment, on which on the bail execution was iffued, and thereupon fatisfaction obtained. ter this the plaintiff went on with this fuit, entered a default, and in January laft obtained final judgment, and iffued an the time of the notice of special execution, on which the sheriff, by direction of the plaintiff's bail, and on attorney, levied the costs only, but ftill had them in his hands. payment of thofe, all fubfeThe defendant in the laft vacation obtained an order of his quent proceedhonour Judge Radcliff to stay all proceedings. ings will be fet alide. Af The application now was, that the fheriff reftore to the defendant fo much of the money in his hands as exceeds the cofts which were due on the bail bond fuit when the rule to ftay proceedings was entered into. The counsel for the defendant produced an affidavit, by which it appeared, that the attorney for the plaintiff had frcquently given the attorney for the defendant verbal notice that he was proceeding with the bail bond fuit. But it did not appear that any bill of cofts had been prefented, or any demand of a bill of cofts made on the one fide, or of the cofts on the other. Colden for the defendant contended, that special bail being filed under the rule, with an intent to stay the proceedings on the bail bond, the plaintiff could not accept it or avail himself of it, unless it was to have that operation. That the plaintiff would not proceed with both fuits: at moft he had but an option to proceed with either, but having elected to pursue the original fuit, he thereby precluded himfelf from going on with the other. bond, he will cofts only up to be entitled to NEW-YORK, That after the defendant had filed fpecial bail the plaintiff May 1803. might have gone on with his original fuit, and the court would probably have compelled him, by attachment, to pay the cofts in that on the bail bond, up to that time. F. Huguet V. J. Hallet. exoneretur or That there was no precedent for this double proceeding, which was a ftrong evidence that it could not be right. Stuyvefant contra. It was the duty of the defendant to have paid the cofts on the bail bond, when he gave notice of special bail. The plaintiff had no other poffible remedy for his cofts than the mode he has adopted, and as the defendant's irregular conduct has compelled the plaintiff to proceed, the whole cofts are due from the defendant, and are nothing more than the refult of his own irregularity and obftinacy. Per curiam. This is a motion to fet afide proceedings on the bail bond on the facts stated by the affidavit. The fuit was commenced in January 1802, returnable in April. Afterwards, in May, the action on the bail bond was brought. Shortly after, the plaintiff's attorney received notice of bail in the original action and then delivered a declaration. Hé went on to judgment, and proceeded on the bail bond to recover cofts. The plaintiff's attorney ftates that he called on the attorney of the defendant, and requested him to pay the cofts on the bail bond, which he did not do, though no reguCannon lar bail had been put in. On this, proceedings were continumanucaptor ads. Catchcart. Cole. ed in the bail bond fuit to judgment, on which an execution Cas. Prac. 80. has iffued for the cofts. The application is to fet afide the proceedings and execution in the bail bond fuit. It is establifhed, with refpect to tendering cofts on a rule to stay proceedings on the bail bond, that it is the defendant's duty, when the rule is obtained, to plead and tender cofts.* There was no rule to stay proceedings: but an equivocal agreement been paid with- in the place of that rule, and fhould receive the fame conftrucont waiting a tion. It was the duty of the attorney of the defendant to plead and pay cofts. This would have been ordered had he to be, on paying not proceeded in the original fuit: but when he did that, it of cofts ordered, thofe of fubfe was a waiver of his proceedings on the bail bond, and a waiver quent proceed of the right to a plea from the oppofite fide. The proceeding this applica ings must be fet afide on payment of cofts up to the time when special bail was entered and notice of that bail given.† dered on pay ment of cofts; no demand or bill prefented. Plaintiff went on. am. Per curi fhould have demand or bill. The relief now ings, and refift tion. † See Grove ads. Campbell. Cole. Cas. Prac Potter against Briggs. NEW-YORK, May 1803. Potter V. Briggs. THIS was an application to the court for an order on the heretofore fheriff, Lanfing, to amend a return according to the real truth of the cafe. The facts were, that the defendant had been arrested and duly committed to jail, but was one of many others who had broken out of prison, in the year 1798. The fheriff had been ruled, and had returned the due execution of the writ, a delivery of the defendant's theriff to amend body over to one of his deputies, and a refcue, but omitted his return, actotally the commitment to prifon. After a lapfe of five years the court will not order a former cording to the truth of the cafe, by ftating that had efcaped from prifon, if it was at a time when many others forcibly broke out. Troup, on an affidavit ftating the preceding circumftances, the defendant infifted on the court's being under a moral obligation to order a return according to the truth of the cafe. That by the falfe one made, the sheriff avoided that liability for the full amount of the debt from which nothing but an enlargement by public enemies of the State could exonerate him. It was a device to get rid of his legal refponfibility; to leave the plaintiff only to his action for a falfe return, in which he could recover no more than his damage actually fuftained, and in which the defendant's infolvency might be urged against a recovery of any thing. Harrifon contra obferved, that Troup had ftated the very reason why his motion fhould not be granted; that of the plaintiff's having it in his power to obtain a compenfation in an action for a falfe return, to the full amount of what he really had fuffered. The proceeding now was, to get from the sheriff a debt, of which not one fhilling could ever have been obtained from the defendant. That the efcape was at a time, full in the recollection of the court, when a number of the debtors broke out of the city jail. Several had been indict ed and fentenced to the State-Prifon. The application too was very ftale: the fecond fheriff was now in office fince the efcape, and five years had clapfed in filence. Perhaps the court might have fome doubt how far it could in this manner interpofe. Troup, in reply, infifted on his former pofitions. Per curiam. The plaintiff is not without reinedy; he has his action on the return. We do not fay that in no cafe fhall a return against truth be amended, but in this, under all its circumftances, we think the plaintiff muft be left to fuch redrefs as the law will give him without our interference. I NEW-YORK, May 1803. John M'Vickar and Co. against Gideon Alden. lic profecutor is Whilft a pub- THIS was a motion for judgment as in cafe of nonfuit the for not proceeding to trial according to ftipulation. attending duties of his office, his caufes, though called on, are not put Riker, district attorney, opposed the motion on an affidavit ftating that he was employed for the plaintiff, and had been prevented in confequence of his official duty as public profecutor, from attending the court when the cause was called on, but if after the and had not afterwards been able to bring it to trial. court of oyer at the foot of the calendar; and terminer is adjourned, * younger iffues Boyd for the defendant. The public profecutor was only counsel it is true the attorney is his brother acting with be tried, he will him; but the cafe is a hard one. The defendant was a lofe his preference and be lia- captain of a ship in which the plaintiff had shipped feveral to non-fuit bales of cotton, all of which had been delivered according to for not proceeding to trial, in the bill of lading; but one, not worth more than fixty dolthe fame man- lars, had been damaged, and he had been held to bail for the ner as other per- whole fhipment, to the amount of two thousand, had been obliged to depofit property to obtain fpecial bail, kept here many months, and had loft, by the detention, more than the fum for which he was arrested. fons. Radcliff and Livingston, Juftices. To public officers in the city of New-York, where the different courts are held at the fame time, indulgence has always been fhewn. Their causes have been called on, but not put down to the foot of the calendar if engaged in official duty. They did not lofe their preference of other caufes, when the public officers attended. An official fituation would otherwife fubject them to peculiar hardships in this city, though in other parts of the ftate the fame inconveniences do not exist. Radcliff J. wished to know whether, after the adjournment of the court of oyer and terminer, any caufes, younger than the one in queftion, had been tried. Thompfon J. There has been a lach in the plaintiffs: the ftipulation fhews this is the fecond. The plaintiff ought to have employed other counfel, for the defendant should not be prejudiced being concerned as public profecutor ought not to caufe any injuftice to the defendant: he ought to have the effect of his motion. Riker for the plaintiffs, offered to confent to common bail. |