Page:United States Reports, Volume 2.djvu/147

 $m·nxua Coeur or Pemyjlwnim rp, Such was the cafe in Elton Es’Br¤gdm. On the other hand, the ::,9;, = mailer may unite ·a fmall interell of his owners, with a greater •,•,,`;; one of his own, yet we may difcover a dilhonell: heart, regardlefs ` of their clfcntial interelis. In every cafe therefore of this kind, we muit weigh every circumflancc, and form our judgment from the imprcllion of fraud, or fairnefs, which the whole tranfaéliou makes on our minds. Taking into view the whole condu& of Keeler, I cannot dif- eover any fraud or criminal conduél. Here was an a£t of piral ey committed in open day: The purfuit of the FQ was, in itfelf, a meritorious aélion; and if Keeler had been the owner of the America, he would have been applauded for it. The whole mer- cantile world feems intcrelled in the fnppreilion of fuch villany. He is folicited to employ his vellizl on the occalion; he {lipula- tes for a compenfation; and though he expe&ed to receive a part of it himfelf, yet that mult have depended on the pleafure of his owners. t would have been their money, eamed by tbeir fhip; yet the captainmight honeltly expeél, thatthey would aps prove his conduél and reward his exertions. It was a fudden thing; we cannot fay that he knew of this infurance, or that he was aware of the confequences of his deviation. Here are no marks of knavery, or even of a difregard to his owner': intereils. It was an imprudenoe ; and he is aufwerable for it to his own-L ers ;, but the infurers are difcharged. For thefe reafons I concur with the refl of the; Court, that judgment mult be for the defendant. Caron, Aflignee of the Sheriff} wp: M*Car.·rx·. EVT had obtained a rule to ihew caufe, why the pro- 6-SJ L ceedings on. the bail-bond {hould not be {laid, on the ground that thc plaintiff had accepted the defendant’s appearance, by filing a declaration in the original aéiion. This he contended was :1 waiver of bail, and cited Hgbm. tg;. 1 gy. I.£I@• P. y R. 86. Bm·ue.r. 257. Rid!. Prac. 132. Pcpb. I4;. _ Hm.•@·, in rcply,urged that the Englyb praélicc had never been extended here ; and if it was, the declaration ought to have been delivrml, before it could have had cfFe£l. 2 Term. R4:. 1 1:. 1 Cram). 94. Impey. Prac. 94. Ru]:. B. R 23. 24. Br rm; Count :-Ithas been the praélicc in Pemwlvania to file declarations before appearance. In thc cafe of fnmmons the ati requires that it fhould be liled days before the return day. It has never yet been determined, that the filing a decla- ration is a waiver of bail : We have no fuch rule ; and, uinlefs ome

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