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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.

dered

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

A creditor can: ct maintain an action

for a dividend against the voluntary trus-
ADMINISTRATOR.

teus of his creditc:', unless he has sub-
ASSUMPSIT lies against an admi: scribed the conciitions of the trust. 234
a

here
the intestate's estate, without proof of a an administrator, haring letters of admi-
special promise.

147 nistration granted in a sister state. 392
An action may be maintained here by A surviving pariner cannot maintain
an administrator, upon letters of admi- an action on the case, for money had and
nistration issued in a sister state. 292 received, against the administrators of

On a sale of land by an administrator, the deceased partner, unless their part-
under an order of the Orplan's Court, nership accounts had been settled. - 434.
the purchaser takes it discharged from Form of pleading in an action of cove.
the lien of judgments, as well as other nant.

436
debts of the intestate.

450 In an action of covenant in a deed,

where the grantor covenants, that he has
ADMIRALTY.

an indefeasible titie, the grantee, after
See Jurisdiction. Insurance. Evidence. eviction, can only recover the value of
ACTION.

the premises at the date of the deed, not
at the tiine of the eviction.

441
See Practice. Covenant. Assumpsit.
Action of debt against executors, on a

ACTUAL SETTLER.
simple contract of testator, when main-

See Land.
tailable.

108
An action cannot be maintained for

ALIEN.
services, if the party acted merely in ex.

Whether an alien can be a juror. 35,3
pectation of a legacy.

111. 130

AGREEMENT.
A report of referees cannot give a right
to land, but it may settle ä dispute about A parol agreement will not give a
land, either in an action of trespass, or of title to lands; but the party may reca-
ejectment.

120 ver dainages for # non-performance.
Action by a bastard against the ad-

152
ministrators of his putative fathe upon

A gross misrepresentation of facts on
a promise made in consideration of ser.

the subject of a contract, the contract is
vices.

130
void.

250
Action of indeb.ass. lies for the claim Illegal contracts cannot be enforced
ants of distributive shares in an intestate's by a stiit at law.

269
estate, against the administrator, withi See Illegal Contract.
out proof of an express assumpsit. 147

AJIENDMENTS.
Action by the assignee of a stock con-
tract in his own name.

Where allowed.
169

12, 13. 25. 267
Action against the owner of a ship, in

ASSIGNEE.
charge of a pilot, for sinking another Assiguee of a promissory note must
ship, through negligence and want of set forth his citizenship on the record. ?
skill.

?05

Voli

'130

may sue in his own name.

69
See Promissory Note8.

Notice. Das
l'he assignee of negotiable paper, or mages.
an assignable bond, takts it discharged of

When the damages, on a protested
all equity between the original parties, bill of exchange, shall belong to the per.
of which he had no notice. 47.370

son remitting it to a foreign creditor. 155
ASSUMPSIT.

Payment of a forged draft cannot be
See Action.
recalled.

234
Infancy may be given in evidence on BLUNSTON'S LICENCES.
the plea of non assumpsit.

130

The validity of Blunston's licences for
Assumpsit by a bastard against the acl- taking up lands, under the proprietary,
ministrators of his putative father, in con-

121
sideration of services.

C
Special nesumfisit to guarantee the
payment of debts.

133. 226

CAST-AWAY.
Persons claiming distributive shares

See Ship.
of an intestate's estate, may maintain
indebitatus assumpit, against the adminis-

CERTIORARI.
trator, without proving an express as-

See Prac'ice.
sumpsit.

147

CHALLENGE.
ATTACHMENTS.

The right of challenging 35 jurors
A promissory note negotiated in low

peremptorily at common law, in a capi-
York cannot be attached.

47

tal case, remains in all cases, not specified
A fund remitted to pay particular in the Act of the 30th of April, 1790.
creditors, cannot be attached. 279

413, 414
Where the garnishee is not entitled to

CHECK. .
set off a debt due to him from the dea
fendant in a foreign attachment. 291

See. Bank-check.

CITIZENSHIP.
AUCTIONEERS.
An auctioneer's bond is a surety for his

What facts constitute citizenship of
customers, as well as the public. 95

Penneylvania, in relation to a citizen of
another state, coming here.

360
AWARD

CITY LOTS.
See Referees

City lots cannot be located as vacant

land, under a Wyoming grant.
В.

COLLATERAL WARRANTY
BANK CHECK.
.

See Warranty.
If the bank pass to the credit of one of
its customers in his cash book a forged

COMMISSION.
check, they cannot rescind, or annul the A joint commission to four persons to
credit.

234 take depositions, cannot be executed by
three.

410
BANKRUPT.
See Evidence. Notice. Sett-off.

COMMISSIONERS' SALES.
"The repeal of the bankrupt law, was

Irregularities and frauds at commis
sioners' sales.

219
a bal lo any prosecution 101 perjury pre-
viousiy committed under it. 327

CONFESSION.
BILL OF EXCEPTIONS.

See Evidence.
IVhen to be tenderech

249

CONFISCATION.
Effect of a bill of exceptions App. xi. The confiscation acts of Georgia are

29

rican port.

not repugnant to its constitution. 14

DEBTS.
See Forfiiture. Georgia.

Whether debts of testator are a lien
CONNECTICUT INTRUDERS.

on his lands, after a bona fide sale by the
heir?

119
The law against them is constitutional.

DESTROYING.

255
CONSIDERATION.

See Shis.
See Agreement. Evidence. Illegal. Con-

DEVISE.
tract.

See M'ill.
CONTRACT.

DISTRESS.
See Agreement. Illegal contract.

See Rent.
CONVICTION.

DOMESTIC DUTIES.
Errors in convictions before a magistrate.

Ses Duties.

266
CORPORATION.

DOIVER.
See Witness. Evidence.

What circumstances shall be deemed
a waiver of dower.

300
COSTS.
See Practice.

DUTIES.
COVENANT.

See Forfeiture.

An American registered ship, sold in
Formn of pleading in an action of cove-
nant.

436 part, while she is at sea, to resident Ame.
Effect of general and special covenants

rican citizens, is not chargeable with
in the same deed.

ib.
foreign cuties, on her return to an Amc-

374. Anp. xxxiv.
See Action. Practice. Damages. What is an error in the liquidation of
CURTESY.

duties.

376, 7, 8. (1),
Tenant by curtesy initiate, has not an

E
cstate forfeitable by his attainder of trea-

168

EJECTMENT.
D

See Mesne. Profits. Damages.
DAMAGES.

ELECTORS.
Under what circumstances, the full What questions are illegal to be put
value of the land will be given in dam. 1o Electors.

253
ages, for obstructing a water course. 147
Where a plaintiff may recover dam-

EMBARGO.
ages commensurate to the injury; not.

See Insurance.
withstanding the contract contains a
penalty.

149

ENGLISH STATUTES.
Though title to land cannot be ac The English statute of frauds and per-
quired by a parol contract, the contract juries does not extená.

152
is good, and damages may be recovered The English statute, respecting colla-
for non-performance.

152 teral warrantees, ( 4 Ann. c. 16. 8. 21)
\Vhether mesne profits can be re roes not extend.

168
covered in ejectment by way of dani-
ages.

138

EQUITY.
The owner liable for damages done by Equity cannot decree agair:st the legal
his ship to another ship, though she was and express stipulation of the parties
in the charge of a pilot.

206 themselves : nor can tie door of equity
Rule for assessing damages. 206 be allowed to renain op 1: forever. 347
See Bills of Exchange. Action. Covenant. How far equity is administered in the

son.

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