Feb. 18:4.

ALBANY, the money, or not furrendering himself, had happened at the time of the bankruptcy, the debt as against Blackford Governeur and could certainly be proved.

Kemble

V.

United Inf. Co.

• If a cemmander of a Convoy make a friendly capture of one of

is convoy it

will not exone

Without examining how long after the return of a ca. fa. and of a writ on the recognizance, the bail may surrender, it is fufficient as it refpects the prefent enquiry, to fay, that after the return of non eft inventus, on a capias ad fatisfaciendum, the condition of the recognizance is broken, and the bail are regarded as fixed in law. If the principal dies after that day, and before a surrender, he is fixed beyond relief; and were the plaintiff to apply to prove his debt while the bail were in that fituation, the affignees would have no right to fay, that the bankrupt ex gratia might yet furrender his principal, and thus defeat his claim. He might with propriety answer that what the bankrupt would do, he could not tell, but that until a furrender was made, which he would not compel the bail or his principal to make, the poffibility of fuch an event ought not to be alleged against proving an exifting demand, which accrued the moment the recognizance was forfeited.

In my judgment, therefore, Blackford was fufficiently fixed as the bail of Murray at the time of his bankruptcy to confer on the plaintiff a right to prove his debt under the commiflion against him, and that the fieri facias iffued fince. his difcharge muft accordingly be set aside with cofts.

Samuel Coverneur and Peter Kemble against the
United Insurance Company. The same against

the same.

THESE were two caufes, the one a policy on the cargo of the ship Indiana, the other on a fimilar policy on that of the barque Bekkefkow; verdicts having been rendered for the plaintiffs. Two queflions were submitted without ar

rate the under-gument;

writer, being a cafe of aban

1ft. Whether the verdicts for the plaintiffs were agreea

donment as for ble to evidence.

a total lofs.

2d. Whether they were agreeable to law.

The material facts in both cafes were the fame. The veffels and cargoes were Danish, infured as fuch at war premi

ums, at a time of actual hoftility fubfifting between Den- ALBANY, mark and Great-Britain.

The circumstances on which the question fubmitted arose were, that these policies were effected for account of a Mr. Murphy, a merchant of the island of St. Thomas, on voyages from thence to the United States. That Capt. Barry, commander of the American fhip of war United States, being on the West-India station, for the protection of the American commerce, was requested by Mr. Murphy, on whofe account the infurances were made, to take both veffels under his care, and protect them all in his power. That for this purpose captain Barry, when at sea, took from the mafters of both veffels their papers, against their opinion and confent, and put on board of them prize masters, ordering them for the United States as prizes to his ship. That after parting from the fhip United States, they were feverally captured, the one carried into Halifax and there acquitted on payment of cofts; the other into Bermuda and there condemned as good and lawful prize.

Per curiam, delivered by Lewis, C. J. The conduct of captain Barry was certainly not authorized by the request of Mr. Murphy. He acted, however, with the best intentions; and his measures, appear to me, rather to have lef fened than to have increafed the rifques. The acquittal of the one veffel was probably owing to them; for, their papers, fhewing the property to be Danish, must have insured the condemnation of both. I can fee no reason, therefore, why the underwriters fhould not be held to their refponfibility, and am of opinion the verdicts are neither against law nor evidence.

Peter Delamater against James Borland.

Feb. 1804.

Delamater

V.

Borland.

In a fuit to recover a ftake depofited on a wager,evidence of money due

on a note of

IN error on a certiorari from a juftice's court. The declaration was for ten dollars depofited in the hands of defendant below as a flake on a wager. The demand at trial was for 25 dollars due on a note, on which five had been at the

paid, and the judgment was for fifteen dollars.

the

the

hand,
be given. If
the declaration

cannot

be for ten dol

judgment for fifteen, it is

Per curiam. It appears that the plaintiff below declared fatal on error from a justices

for one thing, and gave evidence of another totally variant. court.

Feb. 1804.

ALBANY, To this the defendant made an objection, which was overruled. In the next place, the declaration is for ten dollars, and the judgment for fifteen. Both errors are fatal, and there must be a reversal with costs.*

Delamater

V.

Borland.

The multiplicity of cafes from the Juftices' Courts will excufe the infertion of the following determination, by which it was decided, that they have no jurisdiction under the joint debtor act.

Jofiah Jones and Jofiah Crawford v. David Reid.

JANUARY TERM, 1799.

Per curiam. It is a clear and falutary principle that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must fhew their power exprefsly given them in every inftance.

The found rule of construction, in refpect to Juftices Courts is accordingly this to be liberal in reviewing their proceedings as far as refpects regularity and form, and ftrict in holding them to the exact limits of jurisdiction prescribed to them by the flature.

To apply thefe principles to the prefent cafe:

The act making joint debtors anfwerable to their creditors feparately and giving a new mode of proceeding, is pofterior to the act granting civil jurisdiction to juftices of the peace, ard makes no mention of them. It directs that procefs thall iffue against the joint debtors in the manner then in use, and if either be taken and brought into court, he thall anfwer. This act contemplates, in every inftance. a compulfory process on which the defendant is taken and brought into court and until that be done the court cannot proceed in the caufe; whereas the ten pound act giving civil authority to juftices, intends only a fummons in the first instance against freeholders and inhabitants, having families, and if the fummons was perfonally ferved and the defendant does not appear, the justice cannot compel him, but is to proceed and try the caule without his either being taken or bro't into court. The joint debtor act accordingly gives a power and jurisdiction different from and unknown to the ten pound act. So in refpect to executions the joint debtor act directs,that the execution fhall be againft all the debtors; but hall not, however, ifiue against the body or fole property of the one not taken and brought into court. Whereas, by the ten found act, execution is di rected to go against the entire goods and chattels of the perfon against whom it is granted, and for want of fufficient goods of such perfon, to take his body. Here are new powers and new modes of proceedings, applicable to the courts of common law, and contrary to the exprefs forms and directions given to the Juftices' courts and in which no mention is made of them.

We are, therefore, of opinion, that, according to the settled rules of interpretation, juftices of the peace have no jurifdiction in the cafe of joint debtors, unless both are duly ferved with process, and, therefore, that the judgment in this cafe must be reversed.

PROMOTIONS IN THIS TERM.

Ambrofe Spencer, Efq. as Judge, vice Radcliff Judge, refigned.

John Woodworth, Efq. Attorney General, vice Ambrofe Spencer, promoted.

END OF THE FIRST VOLUME.

and mafter and wardens and pilots of See Commiffions, 1. Infurance, 16. Prae-
the port of New-York,