total loss, the whole ship must have been abandoned to the first underwriters, and nothing would then be left to cede to the defendants; it is a sufficient answer to say, that the event has not occurred; a partial loss only has taken place, in which case there is no difference between a valued and an open policy; no abandonment has been made to either set of underwriters, or could be called for. If a total loss had happened, and the plaintiffs had actually made a cession of the whole ship to the insurers, then indeed there might be ground to urge that the policy now under consideration would have been rendered void; but the question before us is, whether it was void in its inception and creation. An event might occur where it might be the interest of the insured, situated as the plaintiffs are, to abandon on a total loss, to the second underwriters, and not resort to the first at all; as for instance, if the first should be insolvent. Emer. 275, and Johnson's New-York Reports vol. 1. p. 385, * were cited to show that a valuation was only conclusive between the parties, to the policy containing it.

For the defendants, it was urged that the first policy being valued, the second was absolutely void; the insured having deprived themselves of the power of ceding any part of the property to the defendants, inasmuch as the first underwriters would be entitled to total loss and abandonment to the whole; that as the defendants had no notice of the prior insurance when they subscribed their policy, they on that ground were discharged, it being a concealment of a material fact on the part of the plaintiffs. The cases of M'Kim against the Phanix Insurance Company in this Court; and of Yard's Assignees against Murgatroyd, in the Supreme Court of Pennsylvania, were cited and relied upon by the defendant's counsel, as having decided principles which must govern this case, and terminate it in favour of the defendants; they went into a full examination of those cases, and comparison of them with the

[* Where a vessel was valued at two thousand dollars, and insured for that sum, and there was a prior insurance for three thousand dollars, the insured were allowed to prove that the vessel was worth enough to cover both policies. 1 Johns. N. Y. T. R. 385.]

with the present; they insisted also, and entered into arguments of considerable length, to prove that the plaintiffs were conclusively bound by the first valuation.

On the 26th, Judge Washington delivered the opinion of the Court as follows:

The case seems almost too plain to warrant an argument. The parties to this suit have agreed by the policy, on which the action is founded, that the property insured was worth six thousand dollars; and the defendants bound themselves to the extent of four thousand, the sum subscribed to cover so much of the agreed value as had not been covered by any prior insurance. It turns out that four thousand of that value had been previously insured in New-York. As to that sum therefore the defendants are not liable; but they would have been liable to that amount, had the agreed value of the property been eight thousand dollars, because so much of the value was uncovered by any prior policy. But as in the present case only 2000 dollars of the value was uninsured when the policy was effected, the defendants cannot be called upon for a sum exceeding that so left uncovered.

This is the plain import of the contract between these parties; and why should not the defendants comply with it? The reasons assigned are that the first policy being valued, the insured, in case of a total loss, must have abandoned the whole property saved to the first underwriters; and were thereby incapacitated to cede any thing to the defendants, without doing which they could not demand a total loss from the defendants; and that the omission to communicate to the defendants the existence of the first policy is such a concealment, as renders this policy void in its inception. In answer to these objections it is sufficient to say, that the plaintiffs do not claim a total loss; and in point of fact, if this were material, they have not abandoned to the New-York company. Claiming only a partial loss from these defendants, they are not entitled to an abandonment. It is not the incapacity or the failure to abandon which can defeat the right of the insured to recover, unless he goes for

a total loss. But if the law were otherwise, still the insured is not incapacitated to abandon to the second underwriters, until he has deprived himself of the power of doing so by having previously abandoned to some other underwriters. It was correctly observed by one of the plaintiffs' counsel that he might, if he chose, and sometimes it might be his interest to, abandon to the underwriters on the second policy, and take from them so much as such policy, from the terms of it, covered. It follows from these principles, that whether there was or was not a prior policy, was a circumstance of no consequence to the underwriters on the second, except as to the amount for which the latter, in case of loss might be liable; and therefore notice of such policy to them was unnecessary and idle. Besides, the very terms "in case the assured shall have made any prior assurance" imply that whether he has made such or not is a fact unknown to the underwriters on the second policy.

The case of M'Kim v. Phanix company is, so far as it resembles the present, against the defendants. In that case the first policy was underwritten by the Philadelphia insurance company, to the amount of twelve thousand dollars, and was clearly open. The Phoenix insurance company afterwards underwrote fifteen thousand dollars on the return cargo of coffee, valuing the same at twenty cents per pound; and the question was, whether the plaintiff could recover any thing upon the latter policy, and if any thing, how much? The Court decided that the first policy covered as much of the coffee as twelve thousand dollars would absorb at prime cost and charges, instead of the value fixed on that article in the second policy, which of course would leave, to be covered by the second policy, as much less of the cargo, as the difference between the prime cost and charges and twenty two cents would amount to; and for so much of the cargo the Phoenix company was held to be answerable. The Court therefore decided that the subsequent agreement of the Philadelphia company, to waive all their right to the property which might be saved, could not change the nature of the contract entered into by the plaintiffs with the Phanix insurance company; be

cause at the moment it was made, no more of the cargo was insured but that which the first policy left uncovered, and was void as to so much as was so covered; if so, the subsequent agreement with the Philadelphia company, was, in relation to the Phenix company, res inter alios acta, and could not affect the rights of the Phanix company. The notice spoken of in that case was not in relation to the existence of a prior policy, but the nature and extent of it.

The case of Yard's Assignees v. Murgatroyd is very imperfectly stated, but it appears, so far as I understand, to resemble this as little as the one just noticed.

The opinion of the Court is, that the plaintiffs are entitled to recover the sum reported by the referees.

PENNSYLVANIA, 1807.

Commonwealth v. William Duane.

Habeas Corpus directed to the gaoler of Philadelphia, to bring the body of the defendant before the honourable William Tilghman, Chief Justice of the commonwealth.

Opinion of the honourable WILLIAM TILGHMAN, esquire, Chief Justice of the state of Pennsylvania, on the law respecting surety for good behaviour and of the peace.

Ix Pennsylvania, a party charged with the publication of a libel may be bound in a recognizance for his appearance at the next Mayor's Court. There are occasions in which it may be proper and necessary to insist upon surety for good behaviour, but as a general rule, it ought not to be demanded before conviction.

THIS

HIS case comes before me in consequence of a habeas corpus, directed to the gaoler of the city and county of Philadelphia, commanding him to bring before me the body of William Duane, together with the cause of his being imprisoned. The gaoler, in obedience to the writ, has produced the body of William Duane, and returned that he was detained in prison, by virtue of a warrant of commitment from the Mayor of Philadelphia. This warrant recites, that William Duane had been charged on the complaint of the Marquis de Casa Trujo, made through the attorney general, and on the oath of William B. Hight, with having on the 19th and 21st of July last, in a public newspaper called the Aurora or General Advertiser, edited by the said William Duane, published certain libels on the said Marquis, and that the said William Duane had been required by the said Mayor, to enter into a recognizance, as well for his appearance at the next Mayor's Court, as for his good behaviour in the mean time, which he had refused to