1803. "debts of the said Peter Hoffman, which in equity we believe SNYDER'S "should be made liable to the judgment that may be obtained by Lessee "the said John Snyder on this award.” υ. HOFFMAN. To this report several exceptions were filed. 1. That the referees had decided on a matter not submitted to them; viz. the sum due from Peter Hoffman to Snyder. 2. That the award was not positive, as the referees merely say they believe that the premises should in equity be made liable to the judgment that may be obtained. 3. That the referees report that the premises should be liable to the judgment obtained on this award; whereas the question was whether they were liable to a judgment obtained in another suit. 4. That the sum awarded to be due was not the same that was recovered in the suit between Snyder and Peter Hoffman. Hopkinson in support of the exceptions, after opening the case, was stopped by the court, who desired to hear the opposite counsel. Rawle in support of the award. All the exceptions, but that which relates to the sum awarded, turn upon informality; and as to that exception, the referees have merely added interest to the original judgment; at all events there is no doubt an award may be good in part and bad as to the rest. This court has been astute to support awards where justice has been done, and the real question between the parties decided. They have gone even in the case of verdicts as far as is necessary here, by moulding an informal verdict so as to produce consistency on the record. Walker v. Gibbs, (a) Thompson v. Musser (b). The report is in effect a general finding for the plaintiff. For the only question between the parties was whether the premises in controversy were liable in equity to Snyder's judgment against Hoffman, and this the referees have substantially said, although they may have added immaterial matter. Condy in reply. There is evidently something more than informality upon the very face of the award. The referees do not find the house and lot of which they speak, to be the same for which the ejectment is brought; they award that the deed by Lessee V. HOFFMAN. Hannah Toy was intended to defraud, and not that to her; they 1803. report their belief, instead of saying that the fact is or is not so; SNYDER'S and instead of awarding that the premises are liable, which is the very question in dispute, they express an opinion that in equity they ought to be so. Further, it surely is no informality to award a sum to be due by Peter Hoffman the defendant, when he is no party to the suit, when that question was never submitted to the referees, and when it is confessed to be a different sum from that which Snyder actually recovered from Hoffman in a suit at law. This part of the report exposes the premises to two debts, or certainly to a larger one than was due. The Court, after the argument, being of opinion that the report was merely informal, recommitted it to the same referees to correct the informality; who on the next day reported generally that they found for the plaintiff with six pence damages. Condy and Hopkinson now objected to filing the second report, as the court had no authority to recommit without consent of parties. But, Per CURIAM. In the case of Eckart's administrators v. The executors of Vanderen there was a recommitment without consent after argument; and for these thirty years such recommitments have been frequent, when the report has been informal. Judgment for the Plaintiff TURNBULL against The Commonwealth. Monday, September 5th. INGERSOLL for the plaintiff, asked the court to give this The court will not grant cause a precedence upon the trial list agreeably to rule 52, precedence 7th January 1789, and rule 53, 8th April 1789, the common- to a cause in wealth being a party and interested in the event of the suit. which the commonwealth is interested, un M. Levy who was concerned in other causes, objected to the less it is askpreference, inasmuch as the rules embraced the case of common-ed by the wealth plaintiff, and not defendant. The preference he said was wealth. common 1803. an odious one; it had arisen from that very unjust partiality TURNBULL which in England is shewn to the business and rights of the crown, to the vast injury of the subject; and therefore should The Com- never be extended by a free construction. monwealth. v. M'Kean (attorney general) said he had never asked a preference in such a case; nor did he now; but he did not object to it. Dallas for the plaintiff replied that the ground of the rule had been misconceived by Levy; it was founded, he said, in this simple and equitable principle, that the business of the community, in which all are concerned, should be transacted in preference to that of an individual which concerns but one; it was therefore as just a provision in a case like this, as in the case of commonwealth plaintiff. The COURT held the matter under consideration until the next morning, when they said that as the attorney general did not ask the preference they would not grant it. Saturday, September 10th. Witnesses subpoenaed though not IN DE BENNEVILLE against DE BENNEVILLE.' N this cause, which was an action of trespass for mesne profits, a verdict was found for the plaintiff for 200 dolls. and the examined, prothonotary taxed the costs of witnesses at 162 dolls. From and examin- this bill the defendant appealed. ed though not subpœ titled to pay as many wit naed, are en- Rawle for the defendant alleged that eight of the witnesses ment. A par. subpoenaed by the plaintiff had been neither examined nor called ty may call by him, and that two others were called and examined solely nesses as he by the defendant; and he prayed the opinion of the court whethinks neces- ther in a cause in which a plaintiff knows he must recover someout his case; thing, and defendant has nothing to oppose to his demand, he not interfere may oppress his antagonist by summoning and charging the exunless he is pense of witnesses whom he never calls to the book. guilty of sary to make the court will oppression. Dickerson for the plaintiff stated that several of the witnesses were brought to prove the annual value of the estate and some other points which were unexpectedly conceded at the trial; but that there was no wilful oppression. 1803. DE BEN NEVILLE V. SMITH J. I examined this question a long time since, and this was the result; a witness subpoenaed though not examined DE BENhas a right to payment; so if examined though not subpoenaed. NEVILLE. A party has a right to call as many witnesses as he thinks are necessary to make out his case. Where there is oppression it must be proved, and the court will lay their hands upon it; but it is not to be presumed. SHIPPEN C. J. There must be proof of oppression, which does not seem to be the case here. Per CURIAM. The bill of costs, as it has been taxed by the prothonotary, is confirmed. WATSON and PAUL against The Insurance Company Tuesday, of North America. Sept. 13th. and proves a capture and tion of the he has never THIS HIS was an action of covenant upon a policy of insurance In an action by the defendants for 1000 dollars, on Goods by the sloop insurance on a policy of Rebecca, at and from her last port in Jamaica to Philadelphia, wherein the plaintiff dewith liberty to touch at the Mole. The plaintiffs declared for a clares for a total loss by capture; and at the trial before Shippen C. J. and total loss, Smith J. at Nisi Prius in March 1802, the following facts were cat in evidence. The sloop, with her complete return cargo on condemnaboard, sailed from Green Island in Jamaica on the 28th May property in1797, bound for Montego Bay, not with a view to take any ad-sured which ditional cargo, but to get the requisite clearance and papers abandoned from the custom house at that place, there being none at Green to the underwriters, the Island. On the 29th May, on her way to Montego Bay, she was captured by a French privateer, carried into Cape François, and estimate the together with her cargo, condemned. On the 3d August 1797, spes recuperthe protest of the captain setting forth the capture and con-andi, deduct demnation was exhibited at the office of the defendants, when whole sum a demand was made for a total loss, which the defendants re-insured, and fused to pay; whereupon this action was instituted. The plain-mainder as a tiffs' interest was proved. The cause was argued to the court and jury upon three objec value of the it from the find the re partial loss. 1803. WATSON and. PAUL υ. N. A. tions to the claim. First, That Green Island was not the sloop's -last port in Jamaica within the meaning of the policy; for as the policy was to attach only when she finished her coasting, and she had sailed to Montego Bay for her papers, it was evident that Montego Bay was contemplated to be her last port. Second, Ins. Co. That it was against usage for vessels loading at Green Island to go to Montego Bay for a clearance, but that Lucea was the port from which it should have been obtained over land; and that sailing to Montego Bay was therefore a deviation. Third, That there had been no abandonment, without which the plaintiffs could not recover a total loss, and no partial loss being proved, they could not recover any thing. The first and second objection the chief justice in his charge left very much to the jury; and they were not noticed in any subsequent stage of this cause. The third was reserved for consideration in bank. The jury, without following any rule that was suggested, but, as was understood at the time, by compromise with each other, found for the plaintiffs 740 dolls. 10 cents; and it was then agreed that the propriety of a verdict for this sum under the circumstances of the case should also be reserved as a point to be argued with the other upon a motion for a new trial by the defendants. The points were reserved in the following terms: 1. Whether an abandonment is sufficiently proved or waived by evidence of a demand as for a total loss and refusal to pay. 2. Whether where the demand is for a total loss, and there is proof of a total loss, the jury can find a partial loss or a less sum than is underwritten. They were now argued by M. Levy and Lewis for the plaintiffs, and by Moylan, E. Tilghman, and Ingersoll, for the defendants. On the first point Levy argued that no specific words are necessary to form an offer of abandonment. Any words will answer if they indicate a willingness in the assured to cede the property damaged or jeopardized, as soon as the loss shall be paid. All that is necessary is to do some act signifying an intention to abandon, Mitchell v. Edie (a); and a demand for a total loss is the fullest evidence of this intention. Upon the payment of the loss by the defendants the property would have vested in (a) 1 D. & E. 616 |