NEW-YORK, Per Curiam. It will be obferved that this is the cafe of a special verdict, and the court can intend nothing but what E. Jenks and al. is found by the jury. This remark is an answer to much of the reasoning on both fides, and narrows the grounds of difcufand W. Bowne. fion to the following points : V. R. S. Hallet Ift. Whether the veffel and cargo, although literally American according to the implied warranty in the policy, had forfeited the privilege of that character, by accepting the protection of a paffport from one of the belligerent nations ? 2d. Whether the purchase of the cargo in a French port was within the prohibition of the act of Congrefs of the 13th June 1798, and an illegal trade. In As to the first, it appears that the Nancy failed with the ufual documents of an American veffel, and was in every respect entitled to be confidered as such, unless the French paff port which the received at St. Domingo would deprive her of that privilege. The general rule by which to determine the national character of a veffel is the domicil of the owner. the prefent cafe the owners refided in the ftate of RhodeIfland-We admit the exception to this rule where the veffel navigates under the flag or affumed character of a country to which she does not belong-but the inftance before us we apprehend is not the case of a veffel failing under that protection, or, as it is termed by Sir William Scott, under the pass of a different nation; her papers were all American except the one in question; fhe was in fact American, if we believe the verdict, and fhe profeffed no other than the American character. The additional paper which fhe received on board at the Cape, according to its import, was not inconfistent with that character; on the contrary she was therein stated to be the property of Mr. Jenks, merchant at Providence, state of Rhode-Island; that paper, accompanied with the other documents the poffeffed, could not be evidence of her being French property, or employed as a French veffel: fhe had come from a French port, and was deftined to a Dutch Ifland, both of which were lawful; and it was natural, and we believe is ufual in such cases, for veffels to feek for protection, and guard themselves against the cruifers of the power whofe ports they have vifited. This paper, unfupported by other evidence of belligerent property or employment, could be received in that light only. Connected with the fact that all V. R. S. Hallet intercourfe had been prohibited by our government at that NEW-YORK, period with the French nation, we think it afforded a reafon- May 1803. able ground of fufpicion that he was employed in the fervice E. Jenks and al of the French and perhaps the risk was thereby enhanced, but fo far as that fact was material, the prohibition was known to and W. Bowne. the underwriters before they fubfcribed the policy, and they muft have estimated the increased danger, if any, that resulted from it. Of itself, we think, it would afford an additional fe-( curity against one of the belligerent parties, (the French) and could not alone be a caufe of capture, or fufficient to authorize a detention by any other belligerent. In practice, we believe it is cuftomary for veffels to endeavour to protect themselves, by papers of this defcription from the public agents of every nation from which they can be obtained, and they have been confidered as affording fecurity, instead of endangering their neutrality. In determining the fecond question it is again neceffary to recur to the facts found by the verdict. From them it appears that the veffel was compelled to put into the Cape in diftrefs; that when there the cargo was landed for the purpose of repairing her; that nearly all the provifions were taken by the French government which prohibited relading any part of the cargo, and permitted to barter what was left for the produce of the island only, and to difpofe of it in no other if this be true they had no alternative but to comply with the terms prefcribed, or facrifice the whole of their property. Their acts were acts of neceffity and coercion, and the law of Congrefs which fufpended the commercial intercourse with France and her dependencies, cannot reasonably be conftrued to apply to a cafe of this defcription; its object was to prevent an intentional, or voluntary traffic, and not to compel a facrifice of property or inflict a penalty in cafes of diftrefs or neceflity. That would be a conftruction exceffively fevere, and contrary to the fpirit and intent of the act. this point we understand a fimilar decifion has been made in the District Court of this ftate, which on appeal, was affirmed by Judge Patterson in the Circuit Court of the United States. We are therefore of opinion, on both points, that the plaintiffs are entitled to recover. K On NEW-YORK, A. M'Gregor V. C. Loveland. If after fuit A. M'Gregor against C. Loveland. THIS was a question of practice fubmitted to the decifion brought the fum of the court on the following statement : be reduced by a partial payment lars, and a cog The above fuits were brought on notes exceeding two hunbelow 250 dol- dred and fifty dollars each; afterwards a fum of money was novit be taken paid, and security given by Loveland the indorfer, by which Supreme Court the amount was reduced below 250 dollars: cognovits were cofts cannot be then given for the refidue by each defendant. It was under for fuch refidue, claimed. Practice as to cofts or a con ftood at the time, by the defendant's attorney, that the judgments should carry Supreme Court cofts. Query. May not the clerk tax them accordingly? Per curiam. No: the plaintiff fhould have taken his cognovit and entered his judgment for a fum above 250 dollars, to entitle to Supreme Court cofts; they cannot otherwife be allowed. The following question was alfo submitted: Several fuits are confolidated by rule on a policy of affurfolidation rule. ance; if the leading fuit should recover more than 250 dollars, and the other fuits lefs, will the party be entitled, by virtue of the confolidation rule, to Supreme Court cofts on the fuits that are under 250 dollars? If a fuit be com promised be James and Samuel Watson against Frederick THIS, and three other fuits were commenced, against the above defendants and feveral others, on a policy of infurance the knowledge tered. tween the par- on the brig Defiance, and a confolidation rule figned and enties, without About a year afterwards the defendants, in the above of the attornies, fuit, compromifed with the plaintiffs who cancelled the policy and nothing faid about cofts, each as to them; of this the defendants' attorney had no information nor was there any rule to difcontinue, or other rule entered, and the other fuits proceeded. The principal cause party pays own. his V. went on to trial, and the jury found a verdict for the defend- NEW-YORK, ant, which was acquiefced in. The defendants' attorney May 1803. thereupon entered rules for judgment as in case of nonfuit in J. & S. Watson all the causes, pursuant to the confolidation rule, and the costs F. Depeyster were taxed and judgment rolls ready to be figned. It was & Co. now fubmitted to the court on these facts, to decide whether the rules for judgment, and the judgment for costs as in cafe of nonfuit, were regular or not; or, whether they ought to be fet afide. N. B. At the time of compromise nothing was faid about cofts. Hoffman, as amicus curiæ, informed the bench, that in Wallace v. Lockwell it had been decided, that if a party compromised without knowledge of his attorney and the plaintiff went on, each paid his own cofts. Per curiam. In every fuit each party is fuppofed to advance as his fuit proceeds. If each has paid cofts and then they compromife, the fuit is fettled; for the transaction imports no further proceeding is to be had; nothing more than a fimple discontinuance to enter on record, and nothing being faid about cofts each muft pay his own. The parties ought to have informed their attornies there was a compromife. Hudfon against Henry. MR. Henry moved for judgment of nonfuit against the plaintiff for not proceeding to trial. Notice of the motion had been sent to the adverfe attorney by the mail. Per curiam. This notice is infufficient. A letter may mifcarry-or the attorney may be abfent when the mail arrives, or not immediately inquire for letters, though an affidavit of a plea fent by the mail might fave a default. Let the defendant take nothing by his motion.* To an application for a fuper fedeas for not Manhattan Company against Smith in custody. THIS cafe was brought up from the Mayor's Court. The application was to prevent the difcharge of the defendant on account of the plaintiffs' not proceeding to execution in due time according to the act for the relief of debtors with refpect charged on excto the imprisonment of perfons; the counsel for the plaintiff months after relied on Brantingham's cafe, Cole. Cas. Prac. 42. having been cution within 3 The judgment, it is a good answer NEW-YORK, Court, without hearing any argument for the defendant, said the authority cited was conclufive. May 1803. J. & S. Watson v. P. Depeyfter & Co. that the defend ant has fince been charged. Attorney on be ings; though it fo in a fuit ter a default en ry and interlo Livingston J. acquiefced becaufe it had been fo decided, but confeffed he did not believe the legislature intended the conftruction put upon the act by the court, fhould ever be given to it. The rigour of the practice was in his opinion enough to condemn it, for he thought the neglect in the plaintiffought to accrue to the advantage of the prifoner. Steele and ux. at the fuit of Tennent. Steele, and Fuller, his bail, at the fuit of Tennent, affignee of the theriff of Washington. THE original fuit. was trefpafs quare clausum fregit, in ing retained for which Steele and his wife had been held to bail under the ftaa defendant fhould examine tute;* after the return of the writ the plaintiff obtained an state of proceed alignment of the bail bond on which he iffued the ufual prois but fair prac- cefs, filed his declaration on the first of October 1802, and entice for plaintiff's attorney to dif- tered a default the eleventh of November; on the 17th the clofe them for partner of the plaintiff's attorney received, when in his office, want of doing notice of the retainer of an attorney on behalf of the defendagainst bail, af- ants in the bail bond fuit, but no information was then given tered execution of any default having been entered. In January following of writ of inqui-final judgment was figned. On the eighth of March 1803, cutory judg the attorney for the defendants in the bail bond fuit was fervment in original ed with a notice of executing a writ of inquiry + in the original fuit; a declaration alfo in the fame fuit was then deliv31 March ered, which the plaintiff's attorney fwore was merely to apprize the defendant of the nature of the demand; but the attorney of the defendant fwore it was ferved abfolutely not on any condition, and that he did not know of the entry of the default in the bail bond fuit or that any declaration had been ought not to be filed; that acting under that impreffion he did not attend the on application to the court by execution of the writ of inquiry or apply to the court laft term. On thefe facts the defendant now moved that the default and interlocutory judgment in the original action and all the proceedings in the bail bond fuit be fet afide and the defendants in the original caufe let in to plead. fuit fet afide on terms. 1801. c. 102. f. 3. + Under f. 16 of ch. 90. of 31st March 1801. Query however if this motion. Per curiam. The court are of opinion the defendant's at, torney was in default. He ought to have feen that the proceed |