Reports of Cases Ruled and Adjudged in the Several Courts of the United States, and of Pennsylvania

rez Calderon. The defendants do not deny it. I presume the 1806. parties can easily adjust this loss. Indeed, I understood so, trom 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 Portsmouth; 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, it ap 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 concur. red in the decision, that the plaintiff, 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 underwriters could only discharge themselves from interest, or costs, by a tender, or payment into Court, of the sum due. But the Chief Justice answered, that the subject had been considered, and was now decided.

ADMINISTRATOR.

A creditor cannot maintain an action
for a dividend against the voluntary trus-
tees of his credito:, unless he has sub-

ASSUMPSIT lies against an admi- scribed the conditions of the trust. 224

nistrator for a distributive share of
the intestate's estate, without proof of a
special promise.
147
An action may be maintained here by
an administrator, upon letters of admi-
nistration issued in a sister state.
292
On a sale of land by an administrator,
under an order of the Orphan's Court,
the purchaser takes it discharged from
the lien of judgments, as well as other
debts of the intestate.

ADMIRALTY.

450

An action may be maintained here by
an administrator, having letters of admi-
nistration granted in a sister state. 292

A surviving partner cannot maintain
an action on the case, for money had and
received, against the administrators of
the deceased partner, unless their part-
nership accounts had been settled.. 434
Form of pleading in an action of cove-
nant.

436

In an action of covenant in a deed,
where the grantor covenants, that he has
an indefeasible titie, the grantee, after
eviction, can only recover the value of
the premises at the date of the deed, not
at the time of the eviction.
441

ACTUAL SETTLER.
See Land.

ALIEN.

services, if the party acted merely in ex- Whether an alien can be a juror. 35,3
pectation of a legacy.

111. 130

A report of referees cannot give a right
to land, but it may settle a dispute about
land, either in an action of trespass, or of
ejectment.
120
Action by a bastard against the ad-
ministrators of his putative fathe upen
a promise made in consideration of ser-
vices.
130

Action of indeb. ass. lies for the claim-
ants of distributive shares in an intestate's
estate, against the administrator, with-
out proof of an express assumpsit.
Action by the assignee of a stock con-
tract in his own name.

147

169

AGREEMENT.

ASSIGNEE.

Where allowed.

Assignee of a promissory note must
set forth his citizenship on the record.
Vol. IV

Infancy may be given in evidence on

the plea of non assumpsit.

130

BLUNSTON'S LICENCES.
The validity of Blunston's licences for
Assumpsit by a bastard against the ad- taking up lands, under the proprietary,
ministrators of his putative father, in con-
sideration of services.

130

Special assum/sit to guarantee the
payment of debts.
133. 226

Persons claiming distributive shares
of an intestate's estate, may maintain
indebitatus assumpit, against the adminis-
trator, without proving an express as-
sumpsit.
147

ATTACHMENTS.

A promissory note negotiated in New
York cannot be attached.

A fund remitted to pay particular
creditors, cannot be attached.

279

Where the garnishee is not entitled to
set off a debt due to him from the de-
fendant in a foreign attachment.

AUCTIONEERS.

291

CAST-AWAY.
See Ship.

CERTIORARI.

See Practice.

CHALLENGE.

121

The right of challenging 35 jurors.
peremptorily at common law, in a capi-
tal case, remains in all cases, not specified
in the Act of the 30th of April, 1790.
413, 414

CHECK.

Sec. Bank-check.

CITIZENSHIP.