
    Krumbhaar against The Marine Insurance Company.
    THIS was an action of covenant upon .two policies of insurance; one dated October 11th, 1810, on 832 bags of ginger, valued at 6500 dollars, on board the ship Union, at and from Philadelphia to Gottenburg and another port; warranted free from loss occasioned by seizure in port, or by illicit or prohibited trade : The other, of the same date, on ^ bags and one barrel of coffee, valued at 1300 dollars on board the same ship., for the same voyage and with the same warranty.
    
      Insurance <e at and from Philadelphia to Gottenburg and another port/* with warranty against illicit trade and seizure in port. The instructions of the captain were to touch at Gotten-burg for information, and then proceed to Eckenforde, where by the bills of lading the cargo was to be delivered. On arriving at the quarantine ground at Gottenburg, information was received of the Danish decree against the importation of colonial produce in neutral bottoms. Permission was then asked to land the cargo at Gottenburg, which was refused, on account of a similar decree of Sweden. The vessel being in a leaky condition then went to heith to refit. Here a quantity of cotton, amounting to one-third of the whole cargo, was sold. The rest of the cargo, not being permitted to remain at I-.eith, returned to Philadelphia in the vessel, upon the arrival of which the assui’ed abandoned.
    Held, That the^ plaintiff could not recover as for a total loss..
    Abandonment should be made as soon as it is known'the voyage is broken up.
    
      The plaintiff declared upon a voyage at and from Philadelphia to Gottenburg and another port, viz. Eckenforde, and averred that a total loss had taken place by seizure of the kings of Denmark and Szveden.
    
    By the bill of lading, which was dated October 8th, 1810, the cargo was deliverable at Eckenforde to C. N. Buck, & Co. or their assigns.
    The cause was tried on the 11th November, 1818, before Tilghman C. J. when the following facts appeared in evidence.
    The Union sailed from Philadelphia on the 12th October, 1810, and after having encountered stormy weather, which rendered her leaky, arrived at the quarantine ground at Gottenburg', on the 8th of the following December. Here the captain was informed of the decree of the king of Denmark, of the 8th September, 1810, prohibiting the entry of all vessels having on board cargoes of colonial produce, into the ports of his dominions, and directing them to be turned off on pain of confiscation. Finding it impracticable to proceed to Eckenforde in consequence of this decree, application was made for permission to land the cargo at Gottenburg, but refused on account of a similar prohibition of the king of Sweden. The leaky state of the vessel rendering it necessary to go to a neighbouring port to repair, she sailed from Gottenburg on the 5th January, 1811, and arrived át Leith in Great Britain, on the 10th of the same month.
    The protest of the captain, made in Philadelphia on the 20th May, 1811, stated that he sailed from Philadelphia bound to Eckenforde, with orders to touch at Gottenburg; that on his arrival at the quarantine ground at Gottenburg he was refused permission to enter or discharge his cargo, and hearing that Eckenforde and all the ports in the north of Europe were shut, he sailed from Gottenburg, intending to make the first port where he could refit: That he arrived at Leith in Great Britain, where the cargo was unladen, and the ship went into dock to repair: That when the repairs were finished, the cargo, which was not permitted to remain, was again put on board, with the exception of a quantity of cotton which was left to pay the expenses of refitting: That finding no place where the cargo could be landed, he sailed from Leith on- the 4th April, and arrived at Philadelphia on the 18th May, 1811.
    On the 11th January, 1811, the supercargo wrote to Abraham, Piesch, the owner of the Union, informing him of her arrival at Leith in distress; that he expected her to be ready to take in her cargo in twenty clays, and that he should re-ship all the cargo except the cotton, which he proposed to sell at Leith, and which, in order to take advantage of the rise of the market, he intended to store. This letter was shewn by the assured to the Company on the 4th April, 1811.
    The value of the whole cargo was 46017 dollars 41 cents.
    The value of the cotton was 16900 dollars 16 cents.
    On the 21st May, 1811, the plaintiff abandoned to the defendants and claimed for a total loss.
    The plaintiff gave credit for the nett proceeds of the goods sold in Philadelphia, and claimed the balance, 5808 dollars 40 cents, with interest from the 12th February, 1812. Th'e freight, 1731 dollars 89 cents, was deducted from the proceeds of sale before the balance was struck.
    A verdict was taken for the plaintiff for 6453 dollars 11 cents, subject to the opinion of the court on all the facts given in evidence. Judgment to be entered accordingly for the plaintiff or defendant.
    The cause was argued on the 8th and 9th July, 1814.
    
      Chauncey for the plaintiff.
    The insurance was to Gotten-burg and another port. The assured, therefore, had a right to go to another port, if he pleased ; but his going was perfectly optional. The plaintiff is entitled fo recover. — First, Because he was prevented from going to Gottenburg by a peril insured against. Secondly, Because he was prevented from going to another port by a peril insured against. First, The decree of Stueden, which rendered it impossible to land the cargo at Gottenburg, was not a municipal regulation. It was an act of a belligerent character, amounting to a restraint of princes. Such too was the character of the decree of Denmark, in consequence of which the Union could not go to Eckenforde, in Holstein. The declared object of these decrees 11733 to co-operate with the other continental powers, in order to effect an important purpose. An embargo, is an arrest or prohibition, which will authorise the insured to abandon. Parke, 78, 79. (4th ed.) So is a blockade; and surely a decree forbidding a vessel to enter her port of destination, is as much a destruction of the voyage as either an embargo or a blockade. The underwriter, therefore, who engages that the ship shall reach her destined- port in safety, and land her cargo, is bound to make good the loss which results from a decree rendering it impossible to do so. But it may be objected that the peril did not operate directly upon the subject insured ; that there was no actual seizure, but a fear merely that the ship would be seized, if she entered the port. It is a sufficient answer to this objection, that the assured were denied admission, and the voyage was broken up by vis major, which is tantamount to arrest. Thus it was impossible to go to Gottenburg, which the underwriter had undertaken the assured should do.
    Secondly, If the plaintiff was bound to proceed to Eckenforde, he was prevented by the decree of Denmark. Whether information that the port to which a vessel, is destined, is shut, will authorise an abandonment, has never been directly decided by this court. Mere apprehension of danger, it is true, will not justify the master in breaking up the voyage, or proceeding to another port; but where seizure is the obvious and inevitable consequence of an attempt to complete the voyage, it is a peril within the policy which entitles the assured to abandon. Shmedt v. United Insurance Company,
      
       1 Emerigon, 512. 542. Craig v. United Insurance Company,
      
      Savage v. Pleasants.
      Symonds v. Union Insurance Company.
      
    
    If the right to abandon ever did exist, it was not forfeited by any subsequent proceeding. The ship went to Leith not from choice, but because her leaky condition .made her immediate return to Philadelphia impossible.. It.is true a part of the cargo was sold at Leith, but as that part did not belong to the plaintiff, he of course cannot be affected by the cir.cumstance.
    
      
      Binney and Hopkinson for the defendants.
    Much depends upon a correct understanding of the facts. The insurance was “ at and from Philadelphia to Gottenburg and another portwith an express warranty against seizure in port, and seizure for illicit or prohibited trade. The instructions of the captain, and the bills of lading, show, that the vessel was only to touch at Gottenburg for information; the cargo being deliverable at Eckenforde. On arriving at the quarantine ground at Gottenburg, intelligence was received of the Danish decree prohibiting vessels, having on board colonial produce, from entering the ports of Denmark, and directing them to be immediately turned off. Permission was then asked to land the cargo merely at Gottenburg, which was refused on account of its character, under a decree made prior to the commencement of the voyage. Of the existence of this Swedish decree, there is however, no other evidence than the oath of the captain. The ship remained at Gotten-burg from December the 8th to January the 5th, when she sailed for Leith, without compulsion. On the 10th January she arrived at Leith. Here the supercargo determined to sell the cotton, and in order to get the best price proposed to store it. The allegation, that the cotton was sold to discharge the expense of repairs, has no force ; because those repairs bore no proportion to the value of the cotton, and because the Union remained at Leith much longer than was necessary for that purpose, viz. from January the 10th until April the 4th. Leith was the only port to which she attempted to go, and there she traded for more than one-third of her cargo.
    All the material facts were known on the 4th of April, 1811, when the letter of the supercargo was shown by the plaintiff to the Company; and the abandonment was not made until the 21st of May, after the ship’s arrival at Philadelphia. It was therefore contended, First, That there was no total-loss ; Secondly, That if there was, the abandonment was too late.
    There was no total loss, 1st. Because the prohibitory decree was enacted before the insurance was effected, and if the underwriter did not expressly undertake to indemnify the assured against the effects of it, he is not answerable. Richardson v. Maine Insurance Company,
      
       1 Emerigon, 542. 2d. The policy does not cover aright to trade; particularly as the plaintiff warrants against seizure in port, and seizure on account ^cit or prohibited trade. No fair construction of the policy caii extend it to the protection of the assured, against a prohibition of commerce; a risk expressly assumed by himself. Arrest is a stoppage by a prince in amity. 1 Emerigon, 535. Restraint and detention are the same thing, being the effect of superior force operating upon the subject insured. Richardson v. Maine Insurance Company. In speaking of the prohibition of commerce, Emerigon, (1. 542,) does not consider it as a cause of abandonment. At Gottenburg there was no arrest, no restraint, no detention. The Union arrived at the quarantine ground, and did not even attempt to go higher up. It is true, she was not permitted to land her cargo, oh account of the prohibitory Swedish decree ; a decree municipal in its character and not belligerent, for if an entry had been attempted, the ship would have been condemned, not as enemy’s property, but for a breach of the trade laws of Sweden. This is the true character of that decree, notwithstanding its object might have' been hostile to one of the great belligerents of Europe. Having arrived at Gottenburg, the Union had accomplished all that the underwriter had undertaken she should accomplish, as respects that port; the right to trade, being, as well by the general principles of insurance law, as by the express agreement of the parties, not within the policy. In 1 Emerigon, 210, the law is laid down generally to be, that the assuser is not responsible for loss by illicit trade; a fortiori where there is an express warranty against such trade, he cannot be answerable for a prohibition making the- trade illicit. In Foster v. Christie,
      
       it was held, that the detention of an English ship by a king’s vessel,- until intelligence was received of an hostile embargo being laid in the port of her destination, in consequence of which the voyage was broken up, and she returned to the port of departure, was not a loss within the policy. And the cases of Parker v. Tunno, and Blackenhagen v. London Insurance Company,
      
       are analogous in principle. In Hodkinson v. Robinson,
      
       where in consequence of the port of the ship’s destination being shut, she went to another port, in which the cargo was sold by order of the Court of Vice Admiralty for a very small sum, it was decided, that the assured could not abandon as for a total loss. Suydam v. Marine Insurance Company,
      
       is in point. In that case there was a denial of entry at St. Jago de Cuba, and it was not considered as authorising an abandonment. Here the voyage to Gottenburg was accomplished, and the case is very like that of Morgan v. North America Insurance Company,
      
       in which, although the vessel was forbidden to enter, it was held, that freight had been earned.
    The insurance was to Gottenburg, and another port; not a specijic port, but any port which was open to the trade. Although Eckenforde is mentioned in the bills of lading, and the instructions of the captain, yet he might have gone to any port in Russia or Prussia. But in fact, the plaintiff did elect to go to another port. He went to Leith, where he endeavoured to trade for the whole of the cargo, and where he actually did trade for a great part of it. All the cotton, amounting in value to more than one-third of the cargo, was -sold there. Ferguson v. Phœnix Insurance Company.
      
       It is no answer to this, that the cotton was not the property of the plaintiff; because the supercargo acted for all the parties in'interest.
    But if there ever was a good cause of abandonment, it was made too late. All the material facts were known on the 4th of April, and the abandonment was not until the 21st of May.
    
    
      Sergeant in reply,
    observed, that the question involved in this case had never been decided, either in England or in this country. The voyage had been defeated by vis major. The Supreme Court of Nexo Fork has decided, that the assured may abandon on account of the blockade of the port of destination, although there be no arrest; also, where there is an embargo by our own government; on the ground, that the voyage is destroyed. He therefore contended, that the assured was protected by the policy, until the cargo was landed. The plaintiff was insured to Gottenburg and another port; that is Gottenburg certainly, and any other port at his own election. This election he had a right to make before the ship left Philadelphia, provided he did not know the trac^e t0 ^at port to be prohibited. His election was made in favour of Eckenforde. When this insurance was effected, por(;3 0f Denmark and Sweden, were supposed to be open. The dictum, of C. J. Parsons, that what is not known, is not instated against, is certainly erroneous. He goes too far in endeavouring to lay down a complete system of law, comprehending cases not before him. The interdiction being unknown, is a strong reason why the underwriter should be liable.1 Here were two risks, and only two excepted from the policy, viz: seizure for illicit trade, and seizure in port. The decrees of Sweden and Denmark were not municipal. They formed part of the continental system, the declared object of which, was the destruction of the commerce of England', by shutting the ports of the continent against her, and as such, they were belligerent measures. Being refused permission to land the cargo at Gottenburg, and finding it impossible to proceed to Eckenforde, the captain resolved to break up the voyage and return to Philadelphia; but the leaky state of the ship rendering that voyage unsafe, he put into Leith to refit. Leith could not be considered as a market, no part of the cargo liaving-been sold there, except the cotton, and that did not belong to the plaintiff.
    • The abandonment was in time. The letter of the supercargo did. not state, what was sufficient to justify such a measure. The cause of the loss was not fully known, until the ship’s return to Philadelphia; and until he precisely knew by what it was occasioned, the plaintiff could not abandon, because he was obliged'to mention the cause of abandonment.
    
      
      
        а) 1 Johns. 249.
    
    
      
       6 Johns. 226.
    
    
      
       5 Binn. 403.
    
    
      
       4 Dall. 417.
    
    
      
       6 Mass. Rep. 111.
    
    
      
       6 Mass. Rep. 109.
    
    
      
       11 East, 205.
    
    
      
       11 East, 22.
    
    
      
       1 Camp. 454.
    
    
      
       3 Bos. and Pull. 388.
    
    
      
       1 Johns. 190.
    
    
      
      
         4 Dall. 458.
    
    
      
       5 Binn. 544.
    
   Tilghman C. J.

This is an action on two policies of insurance on goods, shipped by the plaintiff in the ship Union, on a voyage from Philadelphia to Gottenburg and another port; warranted by the assured free from damage in consequence of seizure for illicit trade or seizure in port. The ship arrived with her cargo at Gottenburg, where permission to land the cargo was refused, in consequence of a decree of the king of Sweden, prohibiting the importation of colonial produce in neutral bottoms. At Gottenburg the captain received information of a similar decree of the king of Denmark, and therefore declined proceeding to Eckenforde as had been originally intended, and went to Leith in the island of Great Britain. At Leith permission was given to land the whole cargo, in order to repair the ship, which had suffered damage on the voyage. Permission was also given to sell the cotton, but no other part of the cargo. The cotton was sold, and the ship returned with the rest of the cargo to Philadelphia. After her arrival at Philadelphia, the plaintiff abandoned, because permission had been refused to land the cargo at Gottenburg., or to sell any part of it, but the cotton, at Leith.

The declaration states a loss by seizure of the kings of Sweden and Denmark.

No actual seizure was made, but the plaintiff contends, that the decrees of Sweden and Denmark amounted to force, because the ship and cargo would have been liable to confiscation, had the captain attempted to act in contravention of these decrees. I shall give no opinion on the law, in case the captain had broken up the voyage and proceeded from Gottenburg to Philadelphia, because the facts exhibit a very different case. The plaintiff had a right to proceed to another port, after leaving Gottenburg, and although Eckenforde appears to have been the other port originally intended, .yet there was no obligation to go there. Gottenburg was very properly selected as the port at which the ship should touch for information, and according to the information received there, th'e captain might proceed to any other port. It is stated in the protest of the captain, that he determined to return to Philadelphia, but was obliged from necessity, to touch at some neighbouring port for repairs, and therefore went first to Leith. But we must judge not so much from his words as his actions. The ship arrived at Leith the 11th of January, and although the supercargo expected to be ready to leave it by the 20th February, they remained at that port until the 5th April. It appears that other American vessels had gone from Gottenburg to Leith, with a view of trading, so that notwithstanding the regulations of the British government, hopes were entertained of being able to dispose of colonial produce at Leith; and the fact was, that cotton was permitted to be sold, in consequence of which upwards of one-third of the cargo of the Union was disposed of. The amount of the whole cargo was about 46,000 dollars, of which about 17,000 dollars was cotton. The supercargo, Mr. Rush, wrote to his owners from Leith, on the 30th January, 1811, and informed them how matters were situated. It was the general opinion there, that if the non'ntercoul’se laws of the United States wei-e again enforced, the price of c.otton would rise considerably, and in order to t„j,e a¿vantage of this circumstance it was his intention to .store the cotton. No part of it was brought back to Philadelphia, so that the whole must have been sold in Great Britain. Here there was a trading to a very large amount, and there is no evidence of any great expenses for repairs, so that the pretence of selling this cotton for the purpose of raising money for repairs .will not avail. The supercargo’s letter was received in Philadelphia, on the 1st April, yet no abandonment was made till 21st May, after the ship’s arrival at Philadelphia. This proves, that the voyage was not considered as broken up, for if it was, the abandonment should have been made immediately. But in answer to this it is said, that no part of the plaintiff’s goods were sold at Leith; he had no cotton, but coffee and ginger only. This answer is not satisfactory, for the persons who sold the cotton were the agents of the plaintiff, as well as of the other owners. It is very material too, in determining the object of the voyage to Leith, that the plaintiff assigns as one of his reasons for abandonment, that the cargo, except the cotton, was not permitted to be landed in that port, so that he himself considered it as a port at which it was wished to trade. Upon the whole then, the plaintiff cannot say, that the voyage was .broken up at Gottenburg, because he intended to trade at Leith, neither was it broken up so as to claim for a total loss at Leith; because there tyas an actual trading there to a large amount. I am therefore of opinion, that the plaintiff ought not to recover for a total loss.

Yeates J.

A distinction is taken in Schmidt v. United Insurance Company, 1 Johns. 263, between an interdiction of commerce with the port of destination, happening after the risk commenced, and where it arose before the voyage began. In the former instance the insurers are responsible for the consequences of the interdiction; but in the latter the contract of insurance is dissolved. This agrees with 1 Emerigon, 542. A majority of the judges held that a prohibition to trade with the destined port, by means of a blockade, was a peril within the policy, and going to another port after-wards for the purpose of delivering the goods was considered, after the abandonment, as done for the benefit'of the insurers. Livingston J. in that case says, a blockade is not like a denial of entry, for that happens after arrival, and if accompanied with no restraint or detention, cannot amount to a loss, unless the assurer be considered in all cases as warranting a right to sell the cargo, whatever may be the laws of the country to which the property is sent. It was afterwardsheld in Craig v. United Insurance Company, 6 Johns. 252, that although the insured cannot abandon quia timet, in cases: where the danger is remote and contingent, yet an interdiction of commerce with the port of discharge, happening after the commencement of the risk, authorises the assured to dis-continue the voyage, and return at the risk of the insurer. 1 Emerigon, 544.

The voyage here was evidently projected on the unsettled-state of the political horizon in the north of Europe. We-know not with certainty when the Swedish decree was enacted, forbidding vessels with cargoes of colonial produce to be-admitted to entry in the Swedish ports. The defendants’ counsel, in their argument, have treated it as if it were cotemporaneous with the Danish decree of 8th September, 1810,, in which case it must have preceded the date of the policies above one month, which contained a warranty of the, goods being free from seizures in port. '

The ship and cargo -arrived in safety at the quarantine' ground near Gottenburg, on the 8th December, 1810, but permission was refused to enter the ship or discharge the cargo. The policies were on goods on board the ship Union, from Philadelphia to Gottenburg and another port. The vessel being bound to Eckenforde (a port in Holstein in Denmark) with orders to touch at Gottenburg, captain Barry hearing that the port of Eckenforde was also shut by the prohibitory Danish decree, sailed from Gottenburg on the 4th January, 1811, intending, as he swore in his last protest, to make the first port where he could refit the ship. She arrived at Leith, in Scotland, on the 10th of the same month, when a survey was had and the cargo unladen. When repaired in dock the cargo was reladed, which was not-permitted to remain on shore, except the cotton, which according to the protest was left to pay expenses. She afterwards sailed from Leith on the 4th April-, and arrived in this port on the 18th- May following, with all her outward cargo except the cotton. On the 21st of the same month the abandonment was made to the Company, on the grounds of the ship’s having been refused admittance into the port of Gottenburg, and not being permitted to leave the whole of the cargo at Leith. Upon the SOth January, 1811, the supercargo of the ship writes to his owner from Leith, that they had arrived there in distress, in consequence whereof they had been permitted to discharge ; that he proposed to sell the cotton on board, and would reship the rest of the cargo. Cotton sold there at Is. 2d. sterling per pound, and would rise if non-intercourse was enforced by the United States. This letter was made known to the plaintiff, who exhibited it to the Company on the 4th April, 1811. The time of the abandonment is very material. It was not made until the 21st May, 1811, which was one month and seventeen days after the plaintiff knew the contents of this letter. The plaintiff must be supposed to have waited for new events in Great Britain, which would lead to a relaxation of the orders in council. It appeared by the outward manifest of the cargo shipped in this port on the 10th October, 1810, that the total value of the manifest was 46,019 dollars 41 cents, including the cotton which cost -16,900 dollars 16 cents, and consequently that the cost of the cotton surmounted one-third part of the whole cargo.

I avoid giving any opinion whether the principle adopted by a majority of the judges of the Supreme Court of New York, in Schmidt v. United Insurance Company, (1 Johns. 249.) in the case of the destined port being in a state of blockade, is applicable to such port where trade is forbidden to cargoes of a particular description (ib. 262), or whether the interdiction of commerce at Gottenburg in this instance, supposed to have taken place before the commencement of the voyage, did not absolve the insurers from responsibility, particularly where the goods were warranted by the policies to be free from seizure in port. Other cases are said to be before us, where these principles must be decided, and I would not willingly disparage the claims of either party.Independently thereof the case before us affords sufficient grounds for our decision. Both policies on their face were effected on goods on board the ship Union from Philadelphia to Gottenburg and another port. The vessel and goods arrived in safety at Gottenburg but were denied an entry at that port. Besides the expressions of Livingston J. in the case first cited, we have decided in Morgan v. Insurance Company of North America, 4 Dall. 458, that when the vessel had reached the foreign port of destination, and the government of that port had refused permission to land the cargo after it had been tendered to the consignee, which had been brought back again, the assured on a policy for freight could neither recover for a total nor partial loss. See Suydam and Wyekoff v. Marine Insurance Company, 1 Johns. 190. I cannot agree that the voyage was broken up and the object of the parties defeated, on another ground. I am satisfied that Gottenburg was not contemplated by the plaintiff as a port of delivery. The invoice is of goods shipped on account and risk of the plaintiff, bound to Eckenforde, consigned to Messrs. C. N. Buck & Co. The bill of lading signed by captain Barry, is for ginger, sugar, and coffee to be delivered at Eckenforde to Messrs. C. N. Buck & Co. or their assigns.- And the protest of captain Barry taken at Philadelphia, expresses that he' sailed from Philadelphia on the 12th October, 1810, bound for Eckenforde, with orders to touch at Gottenburg. It therefore appears clearly by these different documents, that Gottenburg was not considered as the port of delivery, where the goods were to be landed; but merely as a port of information, in the critical state in which public events had thrown the commerce of Europe. Of this intention, information ought to have been given to the insurers as material facts, but it seems highly incongruous, that indemnity should be sought by the assured for a loss supposed to have been incurred by not being permitted to trade at a particular port which had never been in view.

It appears to me, that the arrival of the ship at Leith satisfied the expression, other port, in the policies. It is true, the captain in his second protest states, that in consequence of leak, and the state of the ship, he was obliged to go to Britain to repair, and in his last protest, that the cotton was left at Leith to pay the expenses of refitting. But the letter of the supercargo, already stated, puts the case on very different grounds. The letter of .abandonment also expresses that the vessel having arrived at Gottenburg, was refused admittance, and then proceeded to the port of Leith, but was not permitted to leave any of her cargo except some cotton, which was left to pay the expenses of repairs, which clearly implies that the ship proceeded to Leith for the purposes of trade connected with repairs. From none of the exhibits in the cause can we suppose' that so large a quantity of cotton sold at Is. 2d. sterling per pound could be necessary for refitting the ship.

This part of the case appears more in favour of the underwriters than that of Ferguson et al. v. Phœnix Insurance Company, 5 Binn. 544, where on a policy on goods on board the Logan from New York to Amsterdam, with liberty in case of being turned off on account of blockade, to proceed to a neighbouring port; the vessel after being twice captured proceeded to London, and there discharged her cargo; it was held, that London was a neighbouring port, and the insured had no right to abandon.

, Upon the whole, under all the circumstances of the case as submitted to us, I am of opinion, that judgment be entered for the defendants.

Bkackenridge J. concurred.

Judgment for the defendants.  