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. Hugust V. J. Hallet. exoneretur or dered on pay ment of cofts; no demand or Plaintiff went on. am. Per curi fhould have That there was no precedent for this double proceeding, which was a strong 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 fpecial bail. The plaintiff had no other poffible remedy for his costs than the mode he has adopted, and as the defendant's irregular conduct has compelled the plaintiff to proceed, the whole costs 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. He went on to judgment, and proceeded on the bail bond to recover cofts. The plaintiff's attorney states 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 regu Cannon 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 costs. The application is to fet afide the proceedings and execution in the bail bond fuit. It is eftablifhed, with refpect to tendering costs on a rule to stay probill prefented. ceedings on the bail bond, that it is the defendant's duty, wet when the rule is obtained, to plead and tender cofts. There The cofts was no rule to ftay proceedings: but an equivocal agreement been paid with- in the place of that rule, and should receive the fame conftrucout waiting a tion. It was the duty of the attorney of the defendant to The relief now 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 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 muft be fet afide on payment of cofts up to the time tion. See Grove when fpecial bail was entered and notice of that bail given.+ demand or bill. of coûts ordered, ings, and refift Potter against Briggs. NEW-YORK, Potter V. Briggs. After a lapfe 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 body over to one of his deputies, and a refcue, but omitted his return, actotally the commitment to prison. of five years the court will not order a former sheriff to amend cording to the truth of the cafe, the defendant had efcaped from prifon, if it was at a time when many others forcibly Troup, on an affidavit stating the preceding circumstances, by ftating that infifted on the court's being under a moral obligation to order a return according to the truth of the cafe. That by the false one made, the sheriff avoided that liability for the full amount of the debt from which nothing but an enlargement broke out. by public enemies of the State could exonerate him. It was a device to get rid of his legal responsibility; to leave the plaintiff only to his action for a false return, in which he could recover no more than his damage actually sustained, and in which the defendant's infolvency might be urged against a recovery of any thing. Harrison contra obferved, that Troup had stated 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 shilling 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 indicted and fentenced to the State-Prifon. The application too was very ftale: the second sheriff was now in office fince the efcape, and five years had elapfed in filence. Perhaps the court might have fome doubt how far it could in this manner interpose. Troup, in reply, infifted on his former pofitions. Per curiam. The plaintiff is not without remedy; 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 circumstances, we think the plaintiff must be left to fuch redress as the law will give him without our interference. NEW-YORK, May 1803. John M'Vickar and Co. against Gideon Alden. Whilft a pub lic profecutor is THIS was a motion for judgment as in cafe of nonfuit attending the for not proceeding to trial according to stipulation. duties of his of- Riker, diftrict attorney, oppofed the motion on an affidavit fice, his caufes, though called ftating that he was employed for the plaintiff, and had been on, are not put prevented in confequence of his official duty as public profecutor, from attending the court when the cause was called on, and had not afterwards been able to bring it to trial. at the foot of the calendar; but if after the court of oyer 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 several 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 perwhole shipment, to the amount of two thousand, had been obliged to depofit property to obtain special bail, kept here many months, and had loft, by the detention, more than the fum for which he was arrested. fons. Radcliff and Livingfton, 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 question, had been tried. Thompson 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 fhould not be prejudiced being concerned as public profecutor ought not to caufe any injustice to the defendant: he ought to have the effect of his motion. Riker for the plaintiffs, offered to confent to common bail. May 1803. bail though not impofed, Judge Radcliff and myself think NEW-YORK, the motion must be refused. The plaintiff, however, will ftipulate and pay the cofts of the laft circuit. J. M'Vickar On its being fuggefted that younger caufes had been tried at the circuit, after the court of oyer and terminer had rifen, Gideon Alden. the court deferred pronouncing judgment till the calendar fhould be examined and that fact afcertained. By a certificate, from the clerk of the court, it appeared that the prefent fuit had been called and paffed, and the affidavit of the defendant's attorney ftated, that younger iffues had been determined. On these grounds the court ordered judgment as in cafe of nonfuit, faying the certificate of the clerk was equivalent to an affidavit, and it must be intended the cause had been regularly passed. W. P. Van Nefs against George Gardiner. THE laft proclamation of a fine had been omitted, it ought regularly to have been made laft term; the application now was, to have it made nunc pro tunc and indorsed as of the last term. Per curiam. We fee no objection to it at present. Rule accordingly. Ex parte Manning. * THIS was an application on a petition, to which the court gave the following answer. Laft procla mation of a fine made nunc pro tunc. * Query tamen. A public pro fecution muft be at the ex pence of the profecutor, un ject of public +21st March. Per curiam. The court is called on to allow against the county of Albany, an account for expences incurred by a pro- lefs on difclofecutor in carrying on a public profecution. The application fure of his ciris made under the fifteenth fection of the act † "regulating the court, they certain proceedings in criminal cafes." This claufe, taken in find him an obconnexion with the one that follows, we confider as limiting charity. the difcretion of the court to thofe perfons who are objects of 1801. See I public charity, and as never intended to apply to thofe who Rev. Laws N can bear the expence of difcharging their duty by a public profecution. The next claufe limits the difcretion of the court to twenty-five dollars: and this, according to the 15th fection, only on confideration of the circumftances of the profecutor: the words are his circumftances: therefore, till they Y. Ex parte Manning. NEW-YORK, are disclosed, the court has not any discretion to allow comMay 1803. penfation. However hard it may be to individuals to attend a fuit, and to compel a witness to leave his home, that is a fubject in which the legislature must interfere. We can give no other confideration to this than what the interpretation of the act allows. There are charges here for fums paid to witnes fes, and the act states that no witness is to receive a compenfation, unless poor, A veffel driv en by diftrefs into a French port, where a part of her cargo is taken by the officers of the government, and fhe prevented from incurring the with the de Mr. Attorney General. Allowances, fimilar to that prayed for, have been made at oyer and terminer. Livingston J. When prefiding in that court I have refufed them, and decided according to the opinion of the court now delivered, Ebenezer Jenks and others Richard S. Hallet and Walter Bowne. THIS was an action on a policy of insurance: a special verdict was found containing the following facts. That on the twenty-feventh day of April in 1799, the defendants, for a premium of twenty-five per cent. infured for the plaintiffs against all risks, one thousand dollars upon twenty-five thousand pounds weight of coffee, valued at twenty taking away her cents per pound, on board the floop Nancy, from Hifpaniola original lading, to St. Thomas. That in the margin of the policy was inmay without ferted a clause in the following words, "warranted the propenalties of the perty of the plaintiffs, all Americans," but that the words acts forbidding all intercourte all Americans, were added after the policy was fubfcribed; that the floop Nancy was built at Rhode-Ifland, and belonged to citizens of the United States, refident in Rhode-Island, as well when fhe left that state as at the time of her capture, and, being chartered by the plaintiffs, failed from New-Port country. A paffport grantin Rhode-Ifland, on the twelfth day of December, in the year ed by any par- 1798, on her first voyage to the Havannah; that in the course ticular govern of the faid voyage fhe was compelled, being in distress, to put against its own into Cape-François in the island of Hifpaniola, a country in failing under the the poffeffion of France, where fhe arrived on the fifth day of January 1799; that the captain and fupercargo of the government, fo floop were part owners of the cargo, and are two of the plain pendencies of France, purchafe and load with the produce of the ment to protec cruifers, is not a protection of the flag of that |