1805.

I cannot see, that it will be materially disadvantageous to commerce, to settle this question, in either way, contended for in this cause. It is of most importance, that the point should be clearly decided and settled in one or the other way; that merchants may know, and accommodate their affairs to the decision. This court can, at least, commence the means of final decision.

I believe with Professor Smith, in his "Wealth of Nations,” cited in this cause, that distributing the burthen of losses, among the greater number, to prevent the ruin of a few, or of an individual, is most conformable to the principles of insurance, and most conducive to the general prosperity of commerce. The wisdom and experience of the British nation, grown out of their more modern and extended state of commerce, have given additional value to this opinion. Whatever respect (and it is not slight), I may entertain for the laws of other nations, I deem myself bound to follow, what was the established law and custom of merchants in England, at the time of our becoming an independent nation: not because it was the law merely of that country; but because, it was, and is, our law.

There is sufficient evidence in my mind, in the cases produced out of the British books, to this point, to satisfy me of the law and custom there established on this question. I, therefore, conclude, according to the case of Newby v. Reed, (Sir Wm. Bl. Rep. 410.) that "the insured may recover the whole sum; and leave the in66 surer to recover a rateable proportion, from other insurers, on "a double policy," and the insured may elect, which set of insurers, or which of the individuals, he will sue, for the amount of actual loss; beyond which he cannot recover, as he can have but one satisfaction.

On the point stated, (the details of which merchants can best adjust) I am of opinion, that the defendant is liable to pay to the plaintiff, a contribution, upon the loss paid by him, as stated. This contribution must be made by all the insurers, on all the policies rateably, as their respective subscriptions bear a proportion to each other, and all of them to the actual loss. The defendant of course, must pay to the plaintiff his rateable proportion, on these principles, according to the amount of his subscription.

SINCE

Willing et al. versus The United States.

INCE this case was reported, (ante. p. 374), at February term 1807, the Supreme Court, upon argument, affirmed the judgment of the Circuit Court.

INDEX.

A

ADMINISTRATOR.

A creditor cannot maintain an action
for a dividend against the voluntary trus-
tees of his creditor, 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 title, 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.

ACTUAL SETTLER.
See Land.

ALIEN.

An action cannot be maintained for
services, if the party acted merely in ex- Whether an alien can be a juror.
pectation of a legacy.

111. 130

AGREEMENT.

441

353

A parol agreement will not give a
title to lands; but the party may reco-
ver damages for a non-performance.

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 father, 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.

152

250

Illegal contracts cannot be enforced

269

See Illegal Contract.

AMENDMENTS.

12, 13. 25. 267

ASSIGNEE.

Action of indeb, ass. lies for the claim-
ants of distributive shares in an intestate's by a suit at law.
estate, against the administrator, with-
out proof of an express assumpsit. 147
Action by the assignee of a stock con-
tract in his own name.

Where allowed.

Infancy may be given in evidence on
the plea of non assumpsit.

130

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 assumpsit to guarantee the
payment of debts.

133. 226

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

ATTACHMENTS.

147

A promissory note negotiated in New
York cannot be attached.

47

C

CAST-AWAY.
See Ship.

CERTIORARI.

See Practice.

CHALLENGE.

121

The right of challenging 35 jurors
peremptorily at common law, in a capi-
A fund remitted to pay particular in the Act of the 30th of April, 1790.
tal case, remains in all cases, not specified
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

common law Courts of Pennsylvania. how fara subsequent execution shall pre-
235. 347, 8 vail.
167. 208.213.353

See Covenant. Evidence. Action.

EVICTION.

FORFEITURE.

SOB

See Confiscation. Georgia.
Maryland, across Delaware to Pennsyl
Forfeiture for transporting goods from
vania, without permit and report.

28

Tenant by the curtesy initiate has
not an estate forfeitable by his attainder
for treason.

The charter of incorporation must be
proved, before any corporate act, or in-
strument, can be given in evidence. 415
The seal of a state proves itself, with
out the attestation of any public officer. 416
If a record of a foreign Court of Ad-
miralty is permitted to be read to the
jury without objection, it is evidence, not
only of the grounds of the sentence, but
so far as it exhibits documents, which, if See Illegal Contract. Insurance. Voluntary
themselves produced at the trial, would
be evidence.

421

In an action of covenant, after eviction
of the grantee, by verdict, judgment and
execution, when the grantor may, or
may not, give evidence of title. 436. (1)

EXECUTION.

Goods taken in execution permitted to
remain in the hands of the defendant,

FRAUD.

Assignments.

FREIGHT.

See Insurance.

G
GEORGIA.

168

0