ate them. But no day or place of concealment are laid, which is contrary to all the precedents. The year and day of all material facts, must be stated. 2 Hawk. 235. Every material fact issuable and triable, must be laid with time and place. 5 Term Rep. 620. It is necessary to state some time, when each fact happened, that is material to constitute guilt. Ib. 624. In that case the offence was laid in one of the counts, during the time of the defendant's being one of the counsel, and was held ill. Ib. 625. Here the pronoun relative, refers only to the estate, and not to the time and place of the supposed fraudulent concealment.

Answer. The time and place are alleged as to the defendant's appearance in court as an insolvent debtor and exhibition of his schedule; and the taking of the false oath, as to the contents of the schedule; with intent to defraud his creditors, is connected therewith by the words then and there; moreover the true statement of his estate and effects, is alleged with time and place. And in all this, it is apprehended there is sufficient certainty, which may arise from a necessary inference The words shall be taken in their common sense. Cowp. 679 682.

The allegation of a day, prima facie, somewhat uncertain, may be helped by the apparent sense of the whole. 2 Hawk. 181. On an iudictment for a rescue, it shall be intended to be where the arrest was. Cro. Jac. 354. 2 Bulst. 208. A is indicted, quod prima die maii anno 21 Eliz. in quendam B, insultum fecit et ipsum verberavit, but says not ad lunc et ibidem verberavit, yet rule good, for the vi et armis day and place named in the beginning, referred to all the ensuing acts. 2 H. H. P. C. 178. The perjury here is one means of concealment. Vide. 2 Stra. 904.

6. This second account is grounded upon the 10th section of the law of 4th April 1798, which introduces an offence, suigeneris. It is neither at common law nor under the act of bankruptcy. It is described to be" where such debtor hath directly or indirectly sold, leased, or otherwise disposed of in trust, or concealed any part of his or her property of any kind, or any part of his or her debts, rights or claims, thereby to secure the same, or to receive or expect any profit or advantage thereby to deceive or defraud his or her creditors; and being thereof convicted," &c. It is true, the perjury may be one means of concealment, but not the only one. The acts of selling, leasing or concealing, must be to secure the same, or expect any profit, benefit or advantage thereby, to defraud creditors. The description of the crime in the act must be pursued. Thus, on an indictment

Leach 69, Cox's case.

for perjury on the statute of 5 Eliz. c. 9, the word willful must be inserted, because it is a material description in the statute of the offence. So an indictment on the statutes of 5 and 18 Eliz. for clipping and lightening coin, was held bad, for leaving out the words for lucre sake. 1 H. H. P. C. 220. No circumlocution can supply the want of technical words. 3 Bac. 113.

Answer. The object of the section was to prevent frauds practiced on creditors; it was made for their security. It enumerates independent offences; selling, leasing, disposing of in trust, or concealing with intent to deceive creditors, are all within the act. It is immaterial, whether the debtor gains or expects to gain by the cencealment of his estate. It is only of moment that the act is done, with the intent to deceive or defraud creditors.

7. It does not appear that the indictment was found by a grand jury on on oath. All the precedents in the books, as well as in the state, insert in the second count," and the jurors aforesaid upon their oaths and affirmations aforesaid respectively do present." &c. The several counts contain independent offences, and ignoramus may be returned as to some, and a true bill as to the remainder. The first count in this indictment is disposed of by the noli prosequi; but even admitting that this was not the case, the second count cannot be supported in its present form. An indictment, juratores presentant, is ill. 2 Keb. 676. Indictment quashed, for that the jury were not said to be sworn. 1 Keb. 329. If a special verdict found the words of the present indictment, no judgment could be rendered on it. Forms in criminal prosecutions particularly, should not be departed from. Our zeal for punishment should not absorb individual safety. In the language of Lord Mansfield (4 Burr. 2539) God forbid, that the defendant should not be allowed the benefit of every advantage he is entitled to by law.

Answer. The counts must necessarily be considered together, to render them intelligible. It always happens, that terms of relation are inserted in the latter counts, which refer to the first count, and the words said, aforesaid, &c. are frequently made use of for this purpose. The offences in each count are distinct, and in that sense independent; but it by no means follows, that the phraseology of the one count may not be applicable to a succeeding one, as in the instance of the county wherein the indictment is found, which is uniformly inserted in the margin of the first count, bnt is never inserted in the following counts. The noli prosequi only disposes of the first count, so far as it charges the perjury; but the presentment of the grand inquest upon oath and affirmation, still remains, as referable to the second count. If there

had been an acquittal or conviction on the first count, instead of a noli prosequi, and the defendant had been convicted on the second, and the same should be deemed sufficient in all other particulars, there is little doubt that judgment could legally be entered on it. The defendant ought not to be deprived of any legal advantage, but frivolous exceptions to indictments should be discouraged, and are justly liable to censure. 2 H. H. P. C. 193. 2 Hawk. 228. The substance of justice has often been lost in pursuit of the shadow of mercy. Eden's Princ. Penal Law 181.

The court on consideration reversed the judgment of the sessions, for the reasons assigned on the sixth exception, that the indictment did not pursue the description of the offence as contained in the 10th section of the law of 4th April 1798; and further said, there was considerable weight in the fifth exception. On the last exception, that they intimated no opinion, but directed that the defendant should stand committed until he gave security for his appearence at the next Court of General Quarter sessions of the peace, to be held for Berks county, to answer a new indictment.

MARCH TERM, 1803.

CORAM—SHIPPEN, CHIEF JUSTICE YEATES, SMITH AND BRACKENRIDGE, JUSTICES.

JESSE PRITCHET, who survived ISAAC STARR, jun. (for the use of HENRY SPARKS, jun. surviving partner of ISAAC LLYOD) against The Insurance Company of North America.

The policy and principles which gave rise to the British statute of 19 Geo. 2, c. 37, have been adopted here both in courts of justice and by commercial usage. Owner of a vessel and cargo may fairly insure in a valued policy to two ports in the West Indies, to the amount of the prime cost of the goods and the premium, and the costs of freight thereon to the first port.

ACTION on a policy of insurance, on goods on board the brig Neutrality, William Clark, master, at and from Philadelphia, to one port in Martinico, and at and from thence to St. Thomas's subscribed 2d March 1798. The goods were valued at $15,000, and insured at a premium of 17 per cent.; and the policy was assigned over by the insured to Sparks and Lloyd on the 29th March following.

The brig sailed from the capes of Delaware on the 16th March, and was captured in her voyage to Martinico on the 19th April, by the French privateer Jealous, captain Kautier, who put a French crew on board. On the 21st April she arrived at Point Petre, in Guadaloupe, and on the next day the captain made his protest. On the 1st May the brig and cargo were condemned in the French Court of Admiralty, on the ground of being bound to an enemy's port in rebellion against the French republic.

The defendants had likewise underwritten a valued policy on the body of the vessel for $5000, and admitting that there had been a total loss, had paid on account of both policies at different times, $15,858,9, and about three weeks before the trial, had tendered to Sparks $829,3, the return premium and interest thereon, but had neither paid off the costs nor brought the money into court. They resisted the plaintiffs' claim of $48128,on the ground of an over insurance.

The plaintiffs owned the vessel and cargo when the policies were under written, but effected no insurance on the freight of the goods, which at the usual freight of $2 per barrel, amounted to $3,814 16

And it appeared, that the prime cost of the cargo,

and the premium of insurance thereon, were

11,182 56 So that if it was intended to insured the freight, there was only over insured, the sum of

3 28

$15,000 00

A respectable merchant was called on after the trial had proceeded a considerable length, who gave evidence, that the premium of freight insured in this port was usually the same as on vessels and cargoes, though it was otherwise in the port of New York; and that the profits on goods were frequently insured as goods merely, and it was understood generally by the contracting parties. Coffee known to have been laid in at 16 cents per pound, had often been insured in valued policies at 22 cents per pound, the difference of 6 cents being contemplated on both sides as profits, and so of other articles.

Messrs. Ingersoll and Moylan for the defendant, admitted, that the profits on the cargo of a vessel were legal objects of insurance in a valued policy, as on a cargo of molasses, under a contract by the insured with government, to supply the army in Canada with spruce beer. 1 March. 111. So a valued policy on a commission expected

by the insured, as consignee of a cargo, is a good insurable interest. Ib. 112. But in both instances they must be insured eo nomine. Indeed in France, profits being precarious, and depending upon the uncertain event of future traffic, are not deemed a proper subject of insurance. But in England, it is not unusual to insure profit, eo nomine. Ib. 78. And there profit is not recoverable on an insurance on goods. Park. 267, 5th ed. So on a general insurance on goods, the party cannot recover money lent on bottomree. Though bettomree and res pondentia are a particular species of insurable property, yet it must be expressed in the policy to be respondentia interest. Park. 1st ed. 10, 301, 487. 3 Burr. 1394. 1 Bl. Rep. 405. These rules appear to be founded in good sense and strong reason.

The plaintiffs might certainly have insured the freight of their brig, which they have not done, and therefore cannot seek an indemnity on that ground.

The defendants rely on the legal objection that there has been an over insurance; and it is of great importance that the mercantile law should be ascertained with accuracy. It will scarcely be denied, that the British statute of 19 Geo. 2, c. 37, has been so far recognized here, as that wagering polices are not admitted by commercial usage. The causes which induced the paliament to enact that law are expressed in the preamble, and most of them are applicable to the mercantile interests of the United States. Park. 299.

The only difference between valued and open policies, is that in the former, goods or property insured are valued at prime costs, at the time of effecting the policy; in the latter the value is not mentioned. Park. 1. The value in the former policy is, or ought to be, the real value of the ship, or the first cost of the goods, at the time of effecting the policy. If they be much over valued, it must be done with a bad view. 2 Burr. 1171. 1 Marsh 199. The reason given before the passing of the statute, why the law allowed, that a man having some interest in the ship or cargo, might insure more, or five times as much, was, that a merchant cannot tell how much or how little his factor may have in readiness to lade on board his ship. 2 Vern. 270. That reason totally fails here. The goods were laid in at the port of Philadelphia, where the plaintiffs resided, and who knew the exact amount of the goods; but notwithstanding this knowledge, their valuation has exceeded the true amount at least 25 per cent. The president and directors of the company could know nothing of the prime cost of the goods, unless through the representation of the insured; and this policy presents itself