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. A ADMINISTRATOR. A creditor cannot maintain an action ASSUMPSIT lies against an admi- scribed the conditions of the trust. 224 nistrator for a distributive share of ADMIRALTY. 450 An action may be maintained here by A surviving partner cannot maintain 436 In an action of covenant in a deed, ACTUAL SETTLER. ALIEN. services, if the party acted merely in ex- Whether an alien can be a juror. 35,3 111. 130 A report of referees cannot give a right Action of indeb. ass. lies for the claim- 147 169 AGREEMENT. ASSIGNEE. Where allowed. Assignee of a promissory note must f Infancy may be given in evidence on the plea of non assumpsit. 130 BLUNSTON'S LICENCES. 130 Special assum/sit to guarantee the Persons claiming distributive shares ATTACHMENTS. A promissory note negotiated in New 47 A fund remitted to pay particular 279 Where the garnishee is not entitled to AUCTIONEERS. 291 C CAST-AWAY. CERTIORARI. See Practice. CHALLENGE. 121 The right of challenging 35 jurors. CHECK. Sec. Bank-check. CITIZENSHIP. City lots cannot be located as vacant COLLATERAL WARRANTY COMMISSION. 29% A joint commission to four persons to 234 three. See Evidence. Notice. Sett-off. BILL OF FXCEPTIONS. When to be tendered Effect of a bill of exceptions 327 249 COMMISSIONERS' SAĻES. 410. App. xi. The confiscation acts of Georgia ar What questions are illegal to be put value of the land will be given in dam- to Electors. Where a plaintiff may recover dam- 149 EMBARGO. See Insurance. ENGLISH STATUTES. 253 |