the death of the husband, for the life of the wife, if she herself is not the cause of the determination or forfeiture of it. 4 Co. 2, b. Every grant durant viduitate is an estate for life. 4 Co. 30, a. Lit. § 380. Co. Lit. 42, a, 234, b.

An estate during widowhood for jointure is an estate to the widow during life, and is a jointure within the act. 4 Co. 3, a. Dy. 317, b. New Benloe 210. Vernon's case, which was a feoffment by the husband after marriage of part of his lands to trustees, to the use of himself for life without impeachment of waste, then to the use of his wife for life, and after her deceased to the use of the right heirs of the husband.

DECEMBER TERM, 1800.

CORAM-SHIPPEN, CHIEF JUSTICE, YEATES, SMITH AND BRACKENRIDGE,

JUSTICES.

EDWARD STILES against CADWALADER GRIFFITH.

Replevin will not lie for goods seized for non payment of the city water tax.

MR. INGERSOLL, in behalf of the city corporation, moved to quash this replevin, issued for goods seized in execution for the water

tax.

Mr. Blair for the plaintiff, objected thereto. If the motion is made under the act of 3d April 1779, (1 Dall. St. Law, 796,) the words are all writs of replevin granted or issued," &c. in the past tense, and relate only to replevins taken out before the act was passed. When the legislature in the 5th section mean to guard against the entry of judgments, and issuing of attachments or executions against persons attainted of treason in future cases, they use proper words for that purpose, "or which shall hereafter be so entered or issued," &c. The law contemplated the war, in which we were engaged with Great Britten, and was not intended to continue in operation after the conclusion of the peace.

[Per cur. The words "granted or issued," refer in point to time, to the motion to quash the replevins, and which they must necessarily preceed.]

The words of the 3d section are "goods or chattels seized, by any constable, collector of the public taxes, or other officer, acting under the authority of the state," &c. Corporation taxes are not included berein.

[Per cur. Are not the city assessments public taxes.]

If an inferior jurisdiction issues an execution, replevin will lie for the goods taken by that execution Gilb Dist. and Rep. 122. Thus in a replevin, the defendant was put to justify by a condemnation before a justice of peace, for not entering strong waters, and a warrant on that for levying 20s. fine on the plaintiff. 3 Lev. 204.

Per cur.

The modern cases are otherwise.

An attachment was granted against a person, who took out a replevin for his goods seized under a warrant of a justice of the peace. 1 Barn. B. R. 110. So against an under sheriff, for granting a replevin of goods distrained on a conviction for deer stealing. 2 Stra. 1184.

Mr. Blair. The city water tax is illegal and cannot be supported. We wish to try its validity.

Per cur. Then bring trespass against the collector, and you may go into the inquiry. The court will not support this form of action in such a case, nor suffer such an abuse of their process. If one man may bring a replevin, where his goods have been taken for taxes, so may every other person, and thus the collection of all taxes might be evaded. Independently of the act of assembly, we are bound to quash the writ; and it was quashed accordingly, without hearing the counsel for the corporation.

ANN KEPPELE executrix of GEORGE KEPPELE against HENRY ZANTZINGER surviving partner of GEORGE KEPPELE.

On a capias ad computandum issued against a defendant, court will moderate the bail according to the circumstances of the case.

ACCOUNT Render. Judgment quod computet had been entered last September term, and auditors had been appointed by the court. Two several days had been fixed by the auditors to take the aocount, but the defendant had made default. Whereupon Mr. Levy for the plaintiff, issued a capias ad computandum against him, and marked bail in 20,000 dollars.

Mr. Ingersoll, for the defendant, now moved to discharge the bail, or at least to moderate the sum. He insisted, that there was a balance due from the plaintiff, if a full settlement was made, and showed some propositions made on her behalf to the defendant for a compromise. But the present bail indorsed on the writ, amounts to an actual imprisonment, unless the defendant be in affluent circumstances. The court must exercise their discretion in fixing the sum.

Mr. Levy, for the plaintiff, insisted, that the writ of capias ad computandum lies of right, if the defendant does not appear after a judgment quod computet. 1 Vin. Abr. 171. U. Cro. El. 82. In this last case, the plaintiff demanded 1001. and the defendant found mainpernors in 2001. to enter into account before the auditors, and finish it, &c. Here the plaintiffs' demand is 10,000 dollars, and the

defendant has twice neglected to appear before the auditors, without assigning a good reason for his absence. He moreover refuses to submit his partnership books to the inspection of the plaintiff's agent, which evinces that his intentions are not fair.

By the court. The capias has been rightly issued; but undoubtedly the quantum of bail cannot depend on the plaintiff's demand, but must rest in our discretion, which should be regulated by the amount of the probable balance. But here the defendant has been guilty of two defaults in not appearing before the auditors; and therefore let him give bail in 1000 dollars, to appear before the auditors and account, &c.

ISAAC NORRIS and JOHN HALL against the President and Directors of the Insurance Company of North America.

In covenant of the plea of covenants performed, defendant must begin the evidence, and conclude to the jury.

A policy of insurance may be explained and controlled by the written order to make in

surance.

To subject insurers to a loss, the risk run must correspond with the risk understood and intended to run at the time of subscription.

Insurers are bound to inform themselves of the course and usage of trade.

COVENANT against the defendants, on a policy of insurance, subscribed by Charles Pettit, their president, under their common seal, upon all goods laden or to be laden on board the brig" American," Thomas Town, jun., master, at and from Port de Paix to Philadelphia, with liberty to touch at one other French port, on the north side of the island of Hispaniola, beginning the adventure on the said lawful goods and merchandizes from and immediately following the loading thereof on board of said vessel at Port de Paix.

This policy was subscribed on the 9th March 1797, for 12,000 dollars at a premium of 8 per cent. and if no loss happened, 2 per cent. to be returned, if the vessel proceeds direct from Port de Paix to Philadelphia. It was expressly declared therein, that the insurance was made on goods and cash.

The plaintiffs' written instructions to the office of the defendants, were "insure 12,000 dollars property on board the brig American, Capt. Thomas Town, jun., at and from Port de Paix to Philadelphia." It appeared by a witness, that their chief object was to have this cash on board the brig, then understood to be at Purt de Paix, insured, and that they said at the office, they had been informed this would not be the case unless the specie was particularly mentioned.

Captain Town made two protests. The first at Port de Paix stated, that he sailed from Philadelphia on the 31st October 1796; cleared out for St. Bartholomew's, bound to Marigalante, where he arrived on the 18th November, and was refused permission to trade. He sailed next day, and on the 20th arrived at Port Petre in Guadaloupe, now called Port Liberte, where he sold his cargo, and received on board coffee, cotton and sugar. From thence he proceeded to St. Thomas's and arrived there on the 5th January 1797, and sold his cargo for 18, 247 dollars. He there bought 98 barrels of flour, and on the 22d January sailed from thence for Cape Francois, but being chased off Monte Christo by an English man of war, a brig and cutter, was forced on the 26th into Port de Paix. The administration at Port de Paix, on the 27th January, put a guard of soldiers on board the brig, and seized his papers and sent them to Cape Francois. He was obliged to go to the Cape to plead his cause, and on the 31st his papers were there returned to him, and declared to be in good order by the commissary. On his return to Port de Paix, the captain found the guard on board the brig, and was told by the administration, that the money should be lodged in the treasury, and he should receive payment in coffee: whereupon he put the specie under his bed, and affixed four seals to the lock of his cabin door. On the 4th February, the officers of the administration forced open his cabin door, and took away the specie, consisting of 15,449 dollars, and landed it, promising to deliver him coffee in return.

Captain Town's second protest, made at Philadelphia on the 29th May 1797, enumerated the preceding particulars, and then stated, that few days after the administration took the specie, they forcibly seized his 98 barrels of flour, also promising him coffee in payment. He then went to Cape Francois, and on the 13th February presented a memorial to Santhonax, who directed the chief of the administration at Port de Paix to make him payment in coffee at 23 sous per lb. Hereupon he solicited payment without effect until the 10th March following, and then again went to the Cape, and on the 19th March presented another memorial to Santhonax, who ordered him back to Port de Paix, with a recommendation in his favour, but it was likewise fruitless. On the 30th March he presented a third memorial to Santhonax, who directed the ordonnateur to make him payment in colonial produce within fifteen days at furthest, and he thereupon obtained in coffee duties and provisions, to the amount of about 35,000 livres, and after refusing to sign a proces verbal, he sailed from Port de Paix on the 13th May, and arrived in Philadelphia on the 27th May. In this second protest, Captain Town