cargo in order to examine it accurately) were of opinion, that the cargo had fuftained damage to twelve and a half per cent or one eighth of its value; but this estimate was founded on conjecture only. On this subject, the captain, in his depofition taken by confent of parties before the trial, depofed in the words following, to wit: "That, to avoid the expence of unlading the cargo, to afcertain fuch damage, it was thereupon agreed to leave the quantum of fuch damage and injury to this deponent and the prize-mafter; who, after taking into confideration the quantity both of sugar and coffee that had been pumped up, did concur in opinion, that the cargo had fuftained damage to one eighth of its value, or to twelve and a half per cent, which the deponent verily believed to be the cafe." Eighthly, That after deducting twelve and a half per cent from the appraised value of the cargo, for the damage and injury as above estimated, the confignees of the veffel and cargo paid to the recaptors, for falvage and other incidental expences, 1953:11:3 Sterling. Ninthly, That the confignees refitted the veffel at Plymouth, to enable her to carry her cargo to London, being the place of its deftination; and, that the refitting and difburfements, together with provifions for the crew, pilotage and other charges, amounted to £944:7:7 Sterling, the appraised value at Plymouth being £891:10: 0 Sterling. Tenthly, That the confignees of the veffel and cargo, in London, wrote to the faid Archibald Gracie, a letter, dated 7th February 1801, announcing the preceding facts; and that, as they could not confult the underwriters, that they had infured from Plymouth to London £2000 at 3 G. per cent, to return 15s. for convoy to Portfmouth, and 15s. more from thence to the Downs. They defired this to be communicated to the underwriters, and that, as foon as the fhould get round, and her cargo examined, whether found or damaged, it fhould be fold for their account. Eleventhly, That the veffel was unavoidably detained at Plymouth till towards the laft of March, and did not arrive at London until the first day of April 1800; and fhortly af ter, both veffel and cargo were fold at public auction, on account of the underwriters. 5.1 NEW-YORK, May 1803. Muir & anr. V. U. S. Co. NEW-YORK, Muir & anr. V. U. S. Co. Twelfthly, That, in confequence of felling the cargo at auction, it was fubjected to the following charges, viz. Advertising for public fale, Auction duty Brokerage to vendue master, £16: 9:1 596: 1:8 159:12:3 £772:3:0 The reafon affigned by the confignees to the captain, for felling at auction was, that the veffel and cargo had been abandoned to the underwriters, and that they were fold on their account. Thirteenthly, That the captain depofed, had the cargo been fold at Plymouth for payment of falvage, it would not have brought, by 30 per cent, as much as it did in London. Fourteenthly, That the feveral items charged by the confignees, viz. auction duties, advertifing, commiffions, &c. &c. were proved to be regular and cuftomary charges. Fifteenthly, That by the act of Congress of the second of March 1799, fection 7, it is enacted, viz. "That, for the fhips or goods belonging to the citizens of the United States, "or to the citizens or fubjects of any nation in amity with the "United States, if retaken from the enemy within twenty"four hours, the owners are to allow one eighth of the whole "value for falvage; if after twenty-four hours, and under "forty-eight, one fifth thereof; and if above that, and under "ninety-fix hours, one third part thereof; and if above that, "one half thereof; all of which is to be paid without any de"duction whatsoever, agreeable to the articles herein before "mentioned." Sixteenthly, That the Supreme Court of the United States have determined that the subjects of France were to be confidered as enemies within the act of Congrefs, above in part recited. Seventeenthly, That the rule adopted in the court of admiralty in Great-Britain, as to the quantum of falvage, is established on principles of reciprocity, and regulated by the laws of that country, to which the recaptured property belongs. But Sir William Scott, the 7th of December 1798, in pronouncing sentence in the cafe of the Santa Cruz, declared it to be the practice of the Court of Admiralty in England, to 53 restore, on its own rule, American property, without enquiring NEW-YORK, into the practice of America. The rule established in the May 1803. English Court of Admiralty, with respect to the recapture of Muir & anr. British veffels, is as follows: V. U. S. Co. 2 Marshall, If recaptured by one of his majesty's fhips of war, one eighth; and if retaken by the joint operation of one or more Stat. 33, Geo. 3. of his majesty's fhips, the Judge of the Court of Admiralty, Ch. 66. f. 12. or other court having cognizance thereof, fhall order fuch fal- 472,3vage, and in fuch proportions to be paid to the recaptors by the owners, as he shall, under the circumftances of the cafe, deem fit and reasonable. By confent of the counsel in the above caufe, it was agreed, that the jury fhould render their verdict, fubject to the opinion of the court on a cafe to be stated, and if the court should be of opinion that the plaintiffs were entitled to recover a total lofs, then that judgment should be entered in their favour for the twenty-five thoufand five hundred and eighty-one dollars. But if the court fhould be of opinion, that the plaintiffs were entitled to recover only the amount paid for falvage, the auction duties, together with the expences incident to the fales at auction, and also the damage lofs and injury the cargo fuftained while in the hands of the captors and recaptors, then they find a verdict for the plaintiffs for the fum of nine thousand five hundred and fixty-one dollars and twenty-four cents. But if the court fhould be of opinion, that the damage fuftained by the cargo has not been properly afcertained, or that the charges attending the fale at auction in London were not properly incurred: then, and in such case, a proportionate deduction to be made for the benefit of the defendants. Per curiam. The question arifing from these facts is, as to the extent of the plaintiff's right to recover. This, we think, is not a case of a total lofs. The news of the capture, recapture and arrival at Plymouth, all come together; and the only pretence of a total lofs exifting when the abandonment was made, is founded on the claim of falvage. The amount of this could not be afcertained with certainty, from any information poffeffed by the affured, at the time of the abandonment. Although by the act of Congress of 2d of March 1799, f. 7. the falvage of veffels and goods recaptured from the enemy, after having been in their poffeflion ninety May 1803. Muir & anr. V. V. 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 reftore American property on the rule of the English Admiralty, without enquiring into the practice of America. The English rule of falvage is one eighth, if recaptured by a single ship; and if by the joint operation of two or more, the falvage is left to be settled 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 eftimating 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 infured, 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 THIS was a motion in an action on a bail bond to fet afide the proceedings and execution fued out. It appeared, that foon 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 bail bond, and, 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 was bound to do. The plaintiff, on fpecial bail being en- of a right to a tered, went on in the original fuit, and in July one thousand bond fuit; if the eight hundred and two, obtained final judgment, on which plaintiff proceed execution was iffsued, and thereupon fatisfaction obtained. Af- bond, he will ter this the plaintiff went on with this fuit, entered a default, and in January last obtained final judgment, and iffued an the time of the notice of fpecial execution, on which the fheriff, by direction of the plaintiff's bail, and on attorney, levied the costs only, but still had them in his hands. payment of thofe, all fubfeThe defendant in the last vacation obtained an order of his honour Judge Radcliff to ftay all proceedings. The application now was, that the sheriff restore to the defendant so 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 frequently 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 presented, 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 ftay 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. on the bail be entitled to cofts only up to quent proceedings will be fet afide. |