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V.

Drake.

an exoneretur to be entered on an application from bail under NEW-YORK, similar circumstances. In that cafe the principal was also difMay 1803. charged under the infolvent act before the bail were fixed in Seaman & al. law. The fuit however proceeded against the bail, and the eight days after the return of the capias against them had expired before they made their application for relief. We decided, that as they were entitled to have the exoneretur entered before they were fixed, and had barely omitted to have it done, they had not forfeited that right while the action was pending against them, and that the only confequence was that they fubjected themselves to the payment of cofts.

The facts in this cafe in fupport of the motion made this. term are fimilar, and we think the former decifion was equitable and proper in favour of bail, and ought to govern the prefent. It is therefore unneceffary to give an opinion on the firft objection made on the former motion.

Let the exoneretur be entered on the payment of costs.'

In the courfe of the argument a cafe of Riddles v. Mitchell, manucaptor of Cuyler, was alluded to. The counfel engaged in that cause has favoured me with a statement of the facts, which were as follows:

Riddles v. Mitchell.

THE original action was brought in the mayor's court of the city of NewYork, and judgment obtained therein. The defendant brought a writ of error returnable to this court. Pending the writ of error, the defendant in the original fuit was discharged under the infolvent law. Errors not being duly afligned, the defendant nonproffed the writ, iffued a ca. fa. in this court, and upon a return of a non eft inventus, brought an action of debt against the bail on their recognizance in the original fuit. After declaration, plea, and demurrer, the defendant applied to the court to stay proceedings. It was contended on the part of the prefent plaintiff, that the defendant came too late with this application, having pleaded to the action. But the court, on the authority of the cafe in Carthew,t ordered the proceedings stayed.

Dodfon v. King, 15. But the cafe analogous Af.feems by no means render had been ac tually made bef re the return of the latitat on which the bail had been arrefted.

Abraham S. Hallet against Daniel Cotton.

THIS caufe was tried at the fittings after January term last, when the jury found a verdict for the plaintiff for 866 dollars 20 cents. The defendant obtained a judge's order for a ftay of further proceedings, until the next term, for the purpose of then moving for a new trial.

Hawes now moved, on the part of the plaintiff, for an order, that the defendant bring into court the fum found by the jury, with costs of fuit; and that in default thereof, the or

On moving for a new trial, the

court will not

erder the amount of the

verdict, or fum

admitted due to be brought in,

though the bail

have become in

folvent, and obtained their cer

tificates under the Bankruptlaw.

NEW-YORK, der to stay proceedings, be discharged. This application was May 1803. founded on an affidavit ftating, "That fince this caufe has

Hallet

V.

Cotton.

been at iffue, the special bail has been declared bankrupt and discharged under the bankrupt law of the United States. That, on the trial of this cause, a balance was admitted by the defendant's counsel to be due to the plaintiff of about 500 dollars. That, at the fittings in November laft, on the ap plication of the defendant this caufe was put off for that court, on the condition of payment of cofts: but that thofe costs, although repeatedly demanded, were not yet paid." A further affirmation of the plaintiff was read, ftating "That from the circumstances of the defendant he was in danger of lofing his faid debt, unless the money was brought into court, or the rule to ftay proceedings difcharged: but it was acknowledged a copy had not been ferved.

For the plaintiff it was faid, that a motion for a new trial was an application to the equitable discretion of the court, to relieve from what in the opinion of the party, was an erroneous or oppreffive verdict. That it was a maxim of law, founded on principles of equal juftice, "that he who feeks equity, fhould do equity." From the affidavit it appeared, that the defendant had admitted on the trial that the plaintiff was entitled to recover about 500 dollars, which fum entitled him alfo to full cofts. Before, therefore, the court would fuffer the defendant to be heard on a motion for a new trial, they would require him to do what he acknowledged to be juft. The bankruptcy, and discharge of the bail, and the circumftances of the defendant, were additional reasons for requir ing the defendant to bring the money into court, to abide the event of the fuit. That, from the great number of cafes now before the court, it was not in the leaft probable, that the cafe to be made in this caufe, could come on in its order, and decifion be had thereon, in a shorter time than 6 or 9 months: by which time, the defendant, from his prefent circumftances, would doubtlefs be a bankrupt, or, as his bail were already bankrupt, he might abfcond. Under fuch circumstances, delay was equally prejudicial as a denial of juftice. It also appeared that the defendant was now in contempt, and liable to an attachment for non-payment of cofts incurred on putting off the trial of this caufe, at a former fitting. That it was a ftanding rule of the mayor's court of the city of New-York,

May 1803.

Hallet

V.

Cotton.

that, "upon every motion for a new trial, the defendant NEW-YORK, fhould, within eight days, bring into court the fum recovered by the verdict, with cofts; and that in default thereof, the plaintiff have leave to proceed." That, although this court might not be disposed to go the length to establish such a rule, in all cafes, it was believed the peculiar circumftances of this caufe were fuch, that they would not hesitate to make the order now requested; or at least, for fuch fum as was admitted to be due, with cofts.

* See Gillespie ads. Plaifter & M'Comb, as to infolvency inca

Bogert faid the object of the motion was perfectly new and fes of fecurity unprecedented.

for coft. Cole. Ca. Prac. 119.

+ Card ads. Fitzroy & ors Cole. Ca. Prac. The in- 63. whenever a

to be made on

Per curiam. The practice of the mayor's court, in obliging the amount of the verdict to be brought into court on a motion for a new trial, has never been adopted here. folvency of the bail* is certainly not a fufficient ground to in- fpecial motion is duce us to make fuch an order; and a copy of the affirma- an affidavit, a tion, refpecting the defendant's circumftances, has never been copy must be ferved on him: of that, therefore, we can take no notice.+ Grove against But let it be understood, we do not mean to fay, that had it Campbell, ibid. been otherwise we would have granted the motion.

ferved. See also

114, that fupplementary affi

Rule refufed. davits to rebut

James W. Gilbert against James C. Brazier.

PER curiam. The queftion is, whether the fheriff is entitled to fees on levying a fine. The ftatute directing the mode of making the levy, declares it fhall be done without fee or reward. The fee-bill gives a fee; but does not fay by whom it fhall be paid. We all know how it has been: the fee has been charged by the sheriff, in his accounts. This, we think, is the regular practice; for it cannot be demanded from the person who has had to pay the fine.

L. & N. Vandyck against Van Beuren & Vof

PER curiam.

burg.

Wherever a cafe is made, with liberty to

thofe in anfwer, cannot be receiv

ed.

Party on whom

a fine is levied,

not liable to the cofts of levy.

Liberty to turn

a cafe into a

special vercia

turn it into a special verdict, execution must stay of course, till the next term after the decifion is given, that, if either stays execution.

party be diffatisfied, there may be time to make up the special verdict.

NEW-YORK,
May 1803

Heyl

V.

Burling.

A mate of a veffel having a right to a certain quantity out

Christian Heyl against Samuel Burling.

TROVER, to recover the value of two logs of mahogany, tried at the New-York fittings in June 1802, before Mr. Juftice Radcliff.

On a cafe referved, the following facts appeared:

That the plaintiff bought of one Bonfall, mate of a vessel, of a cargo, by three logs of mahogany, for one hundred dollars-that they way of privilege cannot, after a were laying on a wharf, and part of the confideration money fale of the whole paid. That Mr. Roget, herein after named, was present, and cargo by the confignee, pick a converfation paffed between him and the mate and the plainout any specific tiff; but what it was, was not known,

parts, and fell

them. A right

cargo, does not

tercft as will en

tain trover, if

to the felection

of those parts

poffeffion must

to a witnefs, af

Charles Smith, on part of the plaintiff, teftified, that he of privilege in a e in a was prefent at the purchase. The logs were pointed out, and give fuch an in- agreed for in the presence of the captain of the vessel, and able the purcha- immediately marked by the plaintiff. This was on Saturfer of it to main- day. On Monday following, Heyl, in the prefence of the the confignee captain and of the mate, took poffeffion of the logs, and rehas not affented moved them to a faw-yard, from whence they were taken, and afterwards left by witness, for Heyl, at White-Hall. That which are taken the captain, at the time of their removal, fent a person to see in fatisfaction; for, in trover, that they were those which had been fold, and had the proproperty and per marks. This perfon examined and took the numbers of be fhewn. A re- the logs. Two of the logs being afterwards miffing, the witleafe, executed nefs went in company with Heyl, to the defendant's yard, ter his having where he faw the logs. Heyl claimed them as his, and dedepofed, does not inake him manded of the defendant to deliver them to him; which the defendant refused. That, during the time the logs were on the wharf, and before their removal, Roget, the perfon, to whom it afterwards appeared in teftimony, the whole cargo of mahogany was configned, gave confent to Heyl to take away the logs, and made no objection to the fale by the mate. The witness mentioned, that when he was firft examined, he faid the plaintiff had agreed to buy the logs of mahogany at the rate of one fhilling and fix pence per foot, but that it was afterwards agreed between the plaintiff and mate, that the plaintiff should pay the grofs fum of one hundred dollars, and that the fubfequent agreement was in order to get rid of the trouble of having the mahogany measured; as the logs were not then meafured.

competent.

Smith, after Jeremiah Marshall had given his teftimony, NEW-YORK, faid, that the logs purchased by the plaintiff had, at the time May 1803. of the purchase, been measured; as he faw the meafurer's

marks upon them.

Jeremiah Marshall, for the defendant, teftified, that he is a public measurer of timber: that he was employed by Roget, to measure a cargo of mahogany configned to the faid Roget, as the witness understood from Roget-the captain and mate of the veffel: That, after the first day's work was done, the mate of the veffel pointed out a log of mahogany, which came from on board the said veffel, (and which had been measured, marked and numbered, as No. 21, of the faid cargo,) as being one of three logs, which belonged to him; that the witnefs, on the next day, before they began to discharge any of the mahogany, requested the mate to mention when they came to the other logs which belonged to him, in order that they might be put into a different bill; upon which the mate faid, that he did not own any three particular logs; but that he had a right to make choice of three; that the witness. might measure the whole together, as he had been directed, and that he, the mate, would fettle with Roget for the interest he had therein: in confequence, the account of the meafurement of the whole of the mahogany was kept in one bill, and delivered to Roget, who paid for the meafuring.

Ifaac Roget, the confignee, was then offered as a witness: he was objected to by the plaintiff's counsel, as incompetent; but the judge admitted him, on being released by the defendant. The point of his admiffibility was faved by plaintiff.

Roget's teftimony was, that he never authorized the mate to fell any of the cargo; and that the whole confignment was fold by him to the defendant, before the taking away of the logs: That he never gave any authority to the plaintiff to take away the mahogany: That he never had any knowledge of the claim of the mate to any three particular logs, until after the defendant had purchased the whole of the rest of the cargo, and until after the plaintiff had taken the three logs. from the rest of the cargo, which lay all together on the wharf.

The plaintiff's counfel offered to prove other declarations and admiffions of the captain, as well before as after the fale of mahogany by the mate to plaintiff, that fuch fale was by

Heyl

V.

Burling.

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