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jez Calderon. The defendants do not deny it. I presume the 1806. parties can easily adjust this loss. Indeed, I understood so, from what fell from Mr. Levy, in the course of his argument.
4th. The last question in this case, is, whether the plaintiffs are entitled to a return of any part, and how much, of the premium? The general rule is, that where the voyage is entire, and the risk has once commenced, there shall be no return of premium. But when, by the course of trade, or the agreement of the parties, the voyage is divided into distinct parts; and, on one of these parts, no risk has been run, there shall be an apportionment of the premium, and part shall be returned. A voyage may be entire, though the ship is to go to a number of different places, and to take in different cargoes. But if, in the contract of insurance, there are certain contingencies introduced, which, at certain periods of the · voyage, may operate so as to make the insurance void, it has been considered, that, in such cases, the voyage may be supposed to have been divided, in the contemplation of the parties, into distinct parts. As in the case of Stevenson v. Snow, which was an insurance of a ship “at and from London to Halifax, warranted to depart with convoy from Portsmouth." The convoy was gone, before the ship arrived at Portsinouth; and by the judgment of Lord Mansfield, and the whole Court of King's Bench, there was a return of part of the premium. In the case before us, pears. to have been in contemplation of the parties, that on the voyage from the Havanna home, there might be contingencies, which would either avoid the policy, for that part of the voyage, or lessen the risk, so far as to require a part return of premium. The goods shipped on the outward voyage, are warranted to be the property of Don Alvarez Calderon. It was douotful, whether any goods would be shipped on the inward voyage. If a remittance was made in bills of exchange, there was to be a return of seven and a half per cent., part of the premium. If goods were shipped, they were warranted to be on account of the plaintiffs. It seems to be the spirit of this agreement, that the voyage may be divided; and that if no goods were shipped, there should be a return of seven and a half per cent.
On the whole of the case, I am of opinion, that the plaintiffs are entitled to recover for a partial loss, and a return premium of seven and a half per cent., with interest from the commencement of the action. I do not think, that they should be allowed interest for a longer time, because they demanded more than they were entitled to, and have put the defendants to the expense of contesting their claim for a total loss.
YEATES, Justice, being indisposed sent his opinion, in writing, to the Court, and it was read by the prothonotary. He concurred in the decision, that the plaintiffii, were entitled to recover a partial loss, for the goods lost and damaged; but he consi.
1806. dered the voyage as entire, and, consequently, was opposed to
the claim, for a return of premium.
SMITH, and BRACKENRIDGE, Justices, concurred; generally, in the sentiments delivered by the Chief Justice.
And judgment was entered for the plaintiffs, accordingly; the quantum to be calculated by the parties. (1)
(1) On the question of interest, Dallas took the liberty of suggesting to the Court, after the opinions were delivered, that the practice had uniformly been, to allow interest on the amount actually recovered, upon the expiration of 30 days, after depositing the proofs of loss; and that, on principle, the un. derwriters could-only discharge themselves from interest, or costs, by a tender, or payment into Court, of the sum due. But ihe Chief Justice answered, that the subject had been considered, and was now decided.
A creditor can: ct maintain an action
for a dividend against the voluntary trus-
teus of his creditc:', unless he has sub-
147 nistration granted in a sister state. 392
On a sale of land by an administrator, the deceased partner, unless their part-
450 In an action of covenant in a deed,
where the grantor covenants, that he has
an indefeasible titie, the grantee, after
the premises at the date of the deed, not
Whether an alien can be a juror. 35,3
120 ver dainages for # non-performance.
A gross misrepresentation of facts on
the subject of a contract, the contract is
12, 13. 25. 267
may sue in his own name.
When the damages, on a protested
son remitting it to a foreign creditor. 155
Payment of a forged draft cannot be
The validity of Blunston's licences for
The right of challenging 35 jurors
peremptorily at common law, in a capi-
tal case, remains in all cases, not specified
What facts constitute citizenship of
Penneylvania, in relation to a citizen of
City lots cannot be located as vacant
land, under a Wyoming grant.
234 take depositions, cannot be executed by
Irregularities and frauds at commis
not repugnant to its constitution. 14
Whether debts of testator are a lien
on his lands, after a bona fide sale by the
What circumstances shall be deemed
An American registered ship, sold in
436 part, while she is at sea, to resident Ame.
rican citizens, is not chargeable with
374. Anp. xxxiv.
376, 7, 8. (1),
See Mesne. Profits. Damages.
152 teral warrantees, ( 4 Ann. c. 16. 8. 21)
206 themselves : nor can tie door of equity