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NEW-YORK, t0 the prefent moment,

Nov. 1803. r

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The voyage to St. Jago de Cuba, was compleatly broken up, and the plaintiff has never had it in his power to convey the goods thither, even had it been incumbent on him fo to do, for he has not been able to recover the poffeffion of them. There is no ground then, «n which either the firft, fecond, or third objections can be fupported. Had the plaintiff even recovered the poffeffion of his goods, it would not, in my opinion, alter the cafe. No direct intercourfe can be prefumed to fubfift between the colonial ports of two belligerents; and were the contrary the fact, this is not a cafe, impofing an obligation on the plaintiff to procure another veffel.

The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permiflion in the policy, to labour &c. without prejudice Sec. the infurer became liable to an average of the expence incurred in the attempt to recover the captured property. It is true, he was not bound by the adjuftment of Mr. Ferrers, and was at liberty to have (hewn that it was erroneous. But this was not even attempted. A circumftance which, when taken in connection with the character and employment of that gentleman, will warrant the conclufion, that his adjuftment is correct. We are, therefore, of opinion, judgment be for the plaintiff, for the largeft fum found by the jury.

John Given against Bartholemew Driggs.

THIS was an action by the Sheriff of Albany, on a bond of indemnity, dated 22d April 1798. The declaration was in the common form; for debt, 862 dollars.

The defendant, in his plea, fet forth the condition of the bond, reciting, that on the 10th March preceding, two writs of capias ad fatisfaoiendum had been iffued out of the fnpreme court, againft George Driggs: one, at the fuit of Wendover and J. Hopkins, for S05 dollars; the other, at the fuit of B. Dudley, for 126 dollars, returnable on the third Tuefday in April in the fame year; that George Driggs> bad been taken, on both thefe fuits, by S. Hamilton, one oi the plaintiff's deputies ; that the condition of the obligation was, that if the defendant fhould pay all Tuch fums of mo- NEW-YORK,

r' Nov. 1803.

ney, charges and damages whatever, as the plaintiff mould v-^~-r-«w/ be obliged to pay, after due proceedings at law had againft G,vvcn him, and adjudged and decreed, by reafon of the aforefaid D»ge»faking of the faid George Driggs on the faid writs, then the "~ obligation to be void, otherwife, &c. The defendant then pleaded the ftatute, for preventing vexatious and oppreflive arrefts, and, that the plaintiff took the writing aforefaid, for cafe and favor to George Driggs, and by colour of the plaintiff's office:

2dly. That the plaintiff had not been damnified. To thefe pleas the defendant replied,

1ft, That at the time when the bond was given, George Driggs was not a prifoncr of the plaintiff, nor of Hamilton on the writs of ca. fa. but was then at large, and difcharged from his imprifonment thereon; and that the bond wa» given to indemnify the plaintiff for taking George Driggs, and difcharging him from the arrelt and imprifonment aforefaid, traverfing the eafe and favor.

2d. That in April term 1799, Wendover, furvivor of Hopkins, and B. Dudley, impleaded the plaintiff, for taking and arrefting the faid George Driggs, and permitting him to go at large; that, in July term following, judgment was obtained againft the plaintiff, for the debts and cofts in the »bove fuits, avering, that he is bound, and charged to the farisfaction of the judgments, and that he was damnified by the fuits and judgments thereon.

Rejoinder; that the plaintiff, fraudulently, and deceitfully, and with intent to deceive and defraud the defendant, permitted the faid judgments to pafs againft him by default, and that he fraudulently and deceitfully neglected to make any defence to the faid actions.

Surrejoinder; that the plaintiff did not fraudulently and deceitfully neglect to defend,nor did fo fuffcr the judgments to pafs againft him by default, and iffue thereon.

The caufe came on for trial before Mr. Juftice Thompfon, ~il the Albany circuit in September laft, when the counfcL agreed that the only two points in queftion were,

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NF.w-YORK, ] ft. Whether the bond in queftion was given for eafe and ■■ j-' -^J i favor, and deliverance of the faid George Driggs, contrary Gitcn i0 t;he form of the ftatute, and therefore void.

V.

Driggi. 2d. Whether the judgments aforefaid, were entered thro'

fraud and deceit of theplaintiff,orwerenegligentlyandh-audu-
lently fuffered or not. The pltff. proved that j udgments in the
two fuits-of Wendoverand Hopkins, and of Dudley, were duly
obtained, and executions regularly fued out againft George
Driggp. That he was taken upon them feme time in March
1798, by one of the deputies of the Sheriff, named Hamilton,
and that, at the time of the arreft, many threatening obfer-
vations were made, by the defendant and George Driggs, in
cafe the Sheriff fhould detain his prifoner in cuftody, as they
infifted he was not liable to be held, having lately obtained
his difcharge under the infolvent aft ; that at the fame tine,
there was fome converfation about giving a bond to try the
validity of the arreft, and fecure the Sheriff, in cafe the faid
George Driggs fhould ultimately be liable to the above exe-
cutions •, that, direftions were given to one Frazer, the at-
torney in the fuits againft George Driggs, to prepare Inch
a bond; but before it was finifhed, the defendant told Fia-
zer he need not go on, for that he [the defendant] would
have nothing to do with it; that fmce the arreft, Hamilton
had declared he had permitted George Driggs to go at large •,
that Ccorgc Driggs went a journey to the weftward, and
the defendant faid he would fee him forthcoming i
days; that Frazer did not confent to George Driggs* going
at large, but on being afked, whether he could be rccularlf
fet free, on fome perfon's undertaking for his return into cu
tody; Frazer anlwered, fo it Lad been praftifed by others
that Driggs had been feen, after coming back from the wc
ward ; and that Hamilton had been heard to fay, Geor
Driggs had returned according to his agreement; that i
the 23d of April 1798, the bond, on which the prefent afti
was inftituted, wasdrawu by Frazer, at the requeft of Ih
milton and the defendant, when George Driggs was not pr
fent, and that it was executed by the defendant, at a hou
to which he and Hamilton went for that purpolc; that i
arreft took place on the 10th or 12th of March precedk.-,

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between which time, and the 23d of April following, when NEW-YORK, tlie bond was executed, George Driggs had been frequently v^»»~v-«^/ feen in the ftreets of Loonenburgh, where he and Hamilton "ea

refided; that, previous to the execution of the bond, Jofeph Driggs. Hopkins confented to its being given, and told Hamilton he ~"

would be fafe if he took it; that, at the time of its execution, the defendant faid he was not afraitl of the bond, as he waspofitive hU fon's difcharge was good; but, that he did not wifh the flieriff to be hurt. The plaintiff here clofed his cafe. The defendant gave in evidence, by a witnefs prefent when the arreft wasmade, that Hamilton agreed with George Driggs, that he might go a journey to the weftward, and that the defendant became his furety that he mould return in ten or twelve days; that he did return within that time, and was delivered up by the defendant to Hamilton; that the attorney, in the caufes againfl George Driggs, faid the fheriff would be fafe in letting him go, if the defendant was furety for his return; that from Hamilton, it was under. ftood, that George Driggs was not his prifoner, at the time the bond was given. Frazer's affent to Driggs's being fet at large, was denied by Hamilton, who faid, he himfelf permitted Driggs to go the journey to the weftward, on condition of the defendant's undertaking for the return of Driggs, the prifoner; that he did come back, as was promifed; but that Hamilton recolledcd no furrender of him into cultody \ that the defendant faid he was willing to give a bond to indemnify the flieriff, and, on Hopkins's confenting to the bond in queftion, it was executed ; but that, at the time of its execution, George Driggs was abfolutely at large, and had been fo ever fince his return; nor had the flieriff exercifed

• authority over him, as the deputy did not confider him in cuftody, in confequence of Hopkins's confent to the bond; that of fuch confent, the plaintiff, fhortly after the fuits agtfAft him were commenced, was informed, and that he had fatisfied the judgments obtained therein againft liim, within about five pound?. On this teftimony the jury found a verdict for the defendant.

The prefent application was for a new trial.

NEW-YORK, Metcalf and Emmot for the plaintiff. The motion now

Nov. 1803. , r

v _,- -+_ 1 made, is for a new trial, the verdict being contrary to law

Glven and evidence \ and it may be added, though it does not apDriggs. pear in the cafe, contrary to the opinion of the court alfo. It is an action of debt on a bond of indemnity, with a condition after a recital, as follows : "The condition, therefore, « of the above obligation* is fuch, that if the faid Bartholo"mew Driggs, mail well and truly pay, or caufe to be paid, "to the faid John Given, or his affigns, all fuch fums of roo"ney, charges and damages whatfoever, as he, the faid John "Given, as fheriff, as aforefaid, fhall be obliged to pay, af"ter due proceedings at law had againft the faid John Given, "and adjudged and decreed aga'mjl him, the faid John Given, "or his affigns, by reafon of the aforefaid taking of the a"forefaid George Driggs, on the faid writs as aforefaid, then, "and in fuch cafe, the above obligation to be void, otherwife "to be and remain in full force and virtue." To this the defendant has pleaded, that the bond was given by him to the fheriff for eafe and favor. The firft queftion is, whether the bond was fo given, and therefore void? the fecond, whether the judgments obtained againft the plaintiff were deceitfully or negligently fuffercd? The firft point includes matter of law and matter of fac~t. "Whether a bond to indemnify a fheriff from an efcape given fubfequent to an efcape, and when not in cuftody, be a bond for eafe and favor and therefore void by the ftatute is the queftion of law? Whether the party was then in cuftody or not is that of fact. By recurring to the teftimony in the cafe, it will appear, that Driggs, for whofe eafe the bond is alleged to havebeei! entered into, was out of cuftody long before it was executed, and the very right of taking him was qucftionable, as heh*l been difcharged under the infolvent acl. Againft what H advanced, the agreement to let him go, on a promife to return, cannot be urged; for, though he did return, he never was in cuftody, and the liberation itfelf, under the agreement, was an efcape, after which the bond was given, b then, this bond, fuch a bond, as is made void bv the ftatute. It exprefsiy refers to bonds given for deliverance, and refer*

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