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an exoneretur to be entered on an application from bail under fimilar circumstances. In that case the principal was also discharged under the infolvent act before the bail were fixed in law. The suit 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 consequence was that they fubjected themselves to the payment of costs.

The ficts in this case 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 present. It is therefore unneceffary to give an opinion on the firit objection made on the former motion.

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

In the course of the argument a cafe of Riddles v. Mitchell, manucaptor of Cuyler, was alluded to. '' engaged in that cause has favoured me with timent of the acts, which were as follows:

Riddles v. Mitchell.

THE riginal action was brought in the mayor's court of the city of New**, *djudgment obtained therein. The defendant brought a writ of error returnable to this court. Pending the writ of error, the defendant in the oriinal fuit was discharged under the infolvent law. Errors not being duly asgned, the defendant nonproffed the writ, iffued a ca, fa, in this court, and upon £um of a non eit inventus, brought an action of debt against the bail on their recognizance in the original suit. After declaration, plea, and demurrer, the defendant applied to the court to stay proceedings. It was contended on the part of the present plaintiff, that the defendant came too late with this application, having pleaded to the action. But the court, on the authority of the case in Carfiew, ordered the proceedings flayed.

Abraham S. Hallet against Daniel Cotton,

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

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

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NEw-York,
May 1803.

Hallet

V. Cotton. *

der to stay proceedings, be discharged. This application was
founded on an affidavit stating, “That fince this cause has
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 last, on the ap-
plication of the defendant this cause was put off for that
court, on the condition of payment of costs: but that those
costs, although repeatedly demanded, were not yet paid.” A
further affirmation of the plaintiff was read, stating “That
from the circumstances of the defendant he was in danger of
lofing his said debt, unless the money was brought into court,
or the rule to stay proceedings discharged: but it was ac-
knowledged a copy had not been ferved.
For the plaintiff it was said, 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 errone-
ous or oppreffive verdict. That it was a maxim of law, foun-
ded on principles of equal justice, “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 sum entitled him

also to full costs. Before, therefore, the court would suffer

the defendant to be heard on a motion for a new trial, they would require him to do what he acknowledged to be just. The bankruptcy, and discharge of the bail, and the circumftances of the defendant, were additional reasons for requiring 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 least probable, that the cafe to be made in this cause, could come on in its order, and a decifion be had thereon, in a shorter time than 6 or 9 months: by which time, the defendant, from his prefent circumstances, would doubtless be a bankrupt, or, as his bail were already bankrupt, he might abscond. Under fuch circumstances, delay was equally prejudicial as a denial of juffice. It also appeared that the defendant was now in contempt, and liable to an attachment for non-payment of costs incurred on putting off the trial of this cause, at a former fitting. That it was a standing rule of the mayor's court of the city of New-York,

that, “upon every motion for a new trial, the defendant
should, within eight days, bring into court the fum recovered
by the verdict, with costs; 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 fuch a rule,
in all cafes, it was believed the peculiar circumstances of this
cause were such, that they would not hesitate to make the
order now requested; or at leaft, for fuch sum as was admit-
ted to be due, with cofts.
Bogert aid the object of the motion was perfectly new and
unprecedented.
Per curiam. The practice of the mayor's court, in obliging
the amount of the verdict to be brought into court on a mo-
tion for a new trial, has never been adopted here. The in-
folvency of the bail" is certainly not a sufficient ground to in-
duce us to make such an order; and a copy of the affirma-
tion, repeting the defendant's circumstances, has never been
ferved on him: of that, therefore, we can take no notice.t
Butlet it be understood, we do not mean to say, that had it
knotherwise we would have granted the motion.
- Rule refufed.

James W. Gilbert against James C. Brazier.

PER curiam. The question is, whether the sheriff is entitled to fees on levying a fine. The statute directing the mode of making the levy, declares it shall be done without £e or reward. The fee-bill gives a fee; but does not say by whom it hall 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 perfon who has had to pay the fine.

L. & N. Wandyck against Van Beuren & Vos. burg.

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PER curiam. Wherever a cafe is made, with liberty to turn it into a special verdict, execution must stay of course, "the next term after the decifion is given, that, if either

Party be diflatisfied, there may be time to make up the special
Verdict,

Liberty to turn
a cafe into a

fpecial verdict ftays execution.

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V.

Smith, after Jeremiah Marshall had given his testimony, NEW-YORK, faid, that the logs purchased by the plaintiff had, at the time May 1803. of the purchase, been measured; as he saw the meafurer's Herl marks upon them. Jeremiah Marshall, for the defendant, testified, that he is a.

Burling. 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 nate of the vefsel 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 said cargo,) as being one of three logs, which belonged to him ; that the witpels, 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 settle with Roget for the intereft be 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 measuring.

Ifaac Roget, the consignee, 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 admissibility was saved by plaintiff.

Roget's testimony was, that he never authorized the mate to sell any of the cargo; and that the whole consignment was sold 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 counsel offered to prove other declarations and admiffions of the captain, as well before as after the sale of mahogany by the mate to plaintiff, that such fale was by

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