PIIIL'A, 1807.

V.

Duane.

that purpose; and, by our constitution, all warrants must be grounded upon an oath or affirmation. Upon the Com'wealth whole, the most that can be said, with regard to the recognizances for good behaviour, is, that hey are demandable or not, at the discretion of the judge. They differ from recognizances to keep the peace, in two important features: 1st. Surety for good behaviour is more extensive in its nature than surety for the peace, and may be more easily forfeited, and, therefore, should be exacted with greater caution. 2d. Surety of the peace is demandable of right by any individual who thinks himself in danger of bodily hurt, and will make the necessary oaths; but this principle has not been applied to surety for good behaviour. I will not say that there are no circumstances in which surety for good behaviour ought to be exacted in cases of libels before conviction; on the contrary, I have no doubt but there are occasions on which it may be proper and necessary to insist upon it. But I am of opinion that it will be most agreeable to the spirit of our constitution, and most conducive to the suppression of libels, to adopt it as a general rule, not to demand surety for good behaviour before conviction. Under these impressions, I must discharge the defendant on his entering into recognizance for his appearance at the next Mayor's Court.

of the act of in

arrest of an

J. V. N. Yates, Recorder. The prisoner claims to Construction be discharged under the 23d section of the act of Con- congress, gress of March 16th, 1812, which enacts, "that no non- relation to the commissioned officer, musician, or private, shall be arrest- enlistened soled, or subject to arrest, or be taken in execution for dier in the U. any debt under the sum of twenty dollars contracted March 16th, before enlistment, nor for any debt contracted after enlistment."

འ

It appears that the prisoner is confined in the prison of Albany county, on mesne process, issuing out of the said county, at the suit of John Shepard, for a debt of twenty-eight dollars and fifty cents. The facts in this case, as disclosed on the return of the habeas corpus being made to me, (of which the plaintiff by my order had previous written notice, and attended accordingly,) appear to be as follows:

The prisoner is a private, duly enlisted in the United States army. Before his enlistment, he was indebted to three several persons in small sums, neither of which amounted to twenty dollars, but which in the aggregate exceeded that sum. After his enlistment, the prisoner was induced to give his note to each of those three persons, for the sums he respectively owed them, which notes came to the plaintiff's (Shepard's) hands by purchase or assignment, and being negotiable, the plaintiff

S. army,

1812.

ALBANY, consolidated them in one suit, and in this suit the prisoner is at present in custody.

In the Matter of

Technically speaking, the cause of action in this case Amasa Roode. accrued to Shepard after the enlistment; and if the debt is to be assimilated to the cause of action, then no doubt can remain that this demand was contracted after enlistment; certainly before the enlistment Shepard was not a creditor his right as endorser arose subsequently, and the very form of declaring by endorser against drawer, alleges a promise or assumption (the basis of the action) by the defendant to the plaintiff, after the notes were assigned or endorsed. Hence, upon a strict application of legal principles, the relation of debtor and creditor did not exist between the parties until after enlistment.

In this case, I am inclined to adopt these principles: By it, full effect is given to the act of congress, which ought to receive a favourable construction, as being made for the support and defence of the country; this, too, will prevent a volunteer creditor from ínterposing his claims between the government and its military forces, and will prevent fraudulent or colourable purchase of debts being made, with a view either to harass the soldier, or diminish the national strength.

I am clearly of opinion, therefore, that the prisoner, under the particular circumstances of this case, comes within the operation of the act of congress, and must be discharged from imprisonment.

The prisoner was accordingly discharged from prison, and delivered over to his commanding officer.

William Wirt, Esq., Counsel for the United States.

Messrs. Upsher and Murdaugh, Counsel for the

oner.

pris

board the ves

sel; it cannot be received to

The leading facts proved on the part of the prosecution, justify piratiwere the following:

cal acts committed under

A nation beinde

The schooner Romp, armed with six eighteen pound it. The seal of carronades, sailed from Baltimore early in April last, osone governtensibly on a commercial voyage for Buenos Ayres. She ment not retook with her an American register, and was, in all re- the other procognized by spects, documented as an American vessel. About 12 ves nothing. days after leaving the capes of Virginia, her crew were comes mustered, when they were informed of the destination of pendent from the vessel against the commerce of Spain. A salute was as it respects fired; the colours of Buenos Ayres hoisted; the name of its own govthe vessel changed from the Romp to the Santafecino, and independent articles under the government of Buenos Ayres signed by the crew.

its declaration

ernment; and

as to other nations when recognized by them.

To make a

robbery upon the high seas piracy, it is

There was some disagreement between the witnesses. as to the manner in which the crew received the intelligence of this change in the national character of the ves. sel, some affirming that the colours of Buenos Ayres were that robbery saluted with cheers, and affirming that they were saluted should be punwith murmurs.

not necessary

ished by death upon land.

RICHMOND

V.

Hutchins.

The Santafecino, however, proceeded on her cruise, December. and in the course of it, captured five Spanish vessels, out United States of which they took every thing valuable, sent two of them to Buenos Ayres for condemnation, and gave up the rest to the prisoners. Near an hundred vessels, American, Portuguese, Dutch, English, and others, which were neutral between Buenos Ayres and Spain, were spoken during the cruise; all of which were treated politely. The general conduct of the Santafecino, appeared to be that of a regular commissioned vessel, her prisoners being treated humanely, and their private property restored to them, and perfect respect always paid to the vessels of neutral nations. Some of the witnesses, who were of the crew of the Santafecino, farther proved that the crew were dissatisfied with the colours under which they sailed, and that the revolt among them was in consequence of this dissatisfaction.

The only evidence offered on the part of the prisoner was a paper, purporting to be a commission to the Santafecino, and a commission to the prisoner, as sailing master on board of her, from the government of Buenos Ayres. The district attorney objected to their going to the jury, because,

1st. There was no evidence of their being genuine papers, as there was no proof that Buenos Ayres was an independent government, nor that the seals attached to these commissions was the seal of Buenos Ayres.

2d. If the commissions were genuine papers, they obviously did not belong to this vessel, for they bore date in November, 1815, and the name of Santafecino was not borne by this vessel until the April following.

These points Mr. Wirt pressed with his usual eloquence and vigor.