
    * Commonwealth versus Samuel Dana
    The remission of the penalties of recognizances, provided by the Stat. 1810, e. 80, was intended to apply only to cases of irresistible necessity or unavoidable accident, and for the relief of unfortunate sureties. .
    Debt upon a recognizance, in which the defendant was surety for the appearance of one Lathrop, an inhabitant of Vermont, indicted for a misdemeanor.
    After the defendant had been defaulted, Shaw moved the Court to remit the whole or part of the penalty of the recognizance, under the provisions of the statute of 1810, c. 80. In support of the motion, he stated that the father of Lalhrop, the principal, had secured an indemnity to the defendant for all costs and damages he might incur as such surety for his son. Shaw then read several depositions, showing that the father was in very moderate circumstances, and of slender constitution, having a family dependent upon him, and that the payment of this recognizance would greatly embarrass him; showing also, that the principal had been well educated, and except in the act for which he was here indicted, had been correct in his conduct and habits; and that since that particular act he has constantly resided in the house of his father in Vermont.
    
   The Court

said the statute was plainly intended for cases of unavoidable accident, or irresistible necessity, and for the relief of unfortunate persons who are induced by humane feelings to become sureties for persons who afterwards abscond, leaving their bail without indemnity or remedy. In the present case,-the principal is quietly in the house of his father, who may be considered as the only party interested in this application to the discretion of the Court. It is in his power to produce him, and subject him to the proper animadversion of the law upon his offence. It would be a gross misapplication of the power given by the statute, to apply it to a case thus circumstanced. The defendant can take nothing by his motion.

J. T. Austin for the commonwealth.  