The second section of the act concerning mills, after directing several distinct matters to be inquired of by the Jury, concludes with a direction that they shall certify whether in their OPINION the health of the neighbours will be annoyed by the stagnation of waters. The fifth section enacts, that " If, on such inquests, or on OTHER evidence, it shall appear to the Court that certain inconveniences may result, or the health of the neighbours be ANNOYED, they SHALL NOT give leave to build the mill and dam. From hence it appears to me that if the opinion of the Jury be affirmative, (as in the present case,) that the health of the neighbours will be annoyed, the same is conclusive against the party applying to build the mill: but that, if it be merely negative, a person supposing himself likely to be aggrieved thereby may controvert such opinion of the Jury by other evidence; and if, by such other evidence, it shall appear to the Court that the health of the neighbours will be annoyed, they are bound by the terms of the law not to give leave to build the mill. Judge ROANE was of the same opinion, and observed that the finding of the Jury was substantially that the health of the neighbours would be injured. Judge FLEMING. It is the unanimous opinion of the COURT that the judgment be affirmed. November 2. Same point decided, as in Leftwich v. Berkeley, 1H & M. 61. Saunders against Wood, late Governor. THIS case depending upon the same principles as that of Leftwich v. Berkeley, 1 H. & M. 61. the judgment against the appellants was reversed by the whole Court, (consisting of all the Judges,) for the reasons given in that casc. Sutton against Mandeville. space of Thursday, Assumpsit for lies on an im express pro SUTTON brought an action against Mandeville for the use and occupation of a house in Alexandria. First count, use and occu indebitatus assumpsit for the use and occupation of the pation of land, house for the of the plaintiff, years: Second count, in consideration that the plaintiff had, at the special instance and plied,as well as request of the defendant, before that time permitted him to mise. hold and occupy another messuage or dwelling-house of the said plaintiff with the appurtenances, &c. and that the said defendant had, according to that permission, held and occupied the same for a long time, to wit, years, before then elapsed, the defendant undertook, and to the plaintiff faithfully promised, to pay the plaintiff so much money as he reasonably deserved to have, &c. and avers he deserved other five hundred dollars, &c. On non assumpsit pleaded, the Jury found a verdict for the plaintiff for 500 dollars damages, subject to the opinion of the Court whether it was necessary for the plaintiff in that action to prove an express promise to pay some rent for the house: if such promise be necessary, they find for the defendant. The District Court decided in favour of the defendant; from which judgment the plaintiff appealed. Thursday, October 25. The Judges pronounced their opinions. Judge TUCKER. In considering a similar question to the present in the case of Eppes v. Cole, 4 H. & M. 161. (except that in that case an express promise that the plaintiff should be paid to his satisfaction was proved,) I had occasion to cite a passage from Wooddeson's Lectures, vol. 3. p. 152. in which he says that such an action as this is maintainable, to obtain a recompense for the occupation of the plaintiff's land, by his permission, where there is no stipulation for any precise rent; and adds, that scarce any 1810. Sutton V. OCTOBER, thing is more usual than such an action of assumpsit for the use and occupation of the plaintiff's house by his permission. I cited also the opinion of Judge Buller, in the case Mandeville. of Birch v. Wright, 1 T. R. 387. in corroboration thereof. He there said, the action may be maintained either upon an express or an implied promise. I beg leave to refer to the case itself for further particulars; and shall conclude with giving it as my opinion, that the judgment of the District Court is erroneous, and ought to be reversed, and judgment rendered for the appellant. Judges ROANE and FLEMING were of the same opinion. BY THE WHOLE COURT, judgment reversed, and directed to be entered for the appellant, according to verdict. Wednesday, Marine Insurance Company of Alexandria against October 17. 1. A marine insurance, "at Stras. THIS was a controversy about a return of premium andfrom Nor- upon two policies of insurance effected by William Hodgson, folk to Curracoa, with li- on behalf of George Frederick Stras, on a voyage "at and berty of going to any other from Norfolk to Curraçoa, with liberty of going to any other island in the island in the West Indies, or any one port on the Spanish West Indies, oranyone port Main, and at and from thence back to Richmond,” the first on the Spanish Main, and policy being "upon any kind of lawful goods and merchan at and from thence back dises, valued at 6,000 dollars, laden or to be laden on board to Richmond," must be un derstood as an insurance “at and from Norfolk to Curracoa, in the first place, with liberty of going from Curracoa to any other island," &c. 2. If, therefore, the vessel put into the island of St. Thomas, and thence return to Norfolk, without ever going to Curracoa, it is a deviation from the voyage; and, there being no proof that such deviation was occasioned by stress of weather, or other unavoidable accident, the person insured is entitled to no return of premium; such being the terms of the policy. S. A protest before a Notary Public, by the master of the vessel, after his return to Virginia, is no evidence in such case: and quere, would such a protest, made at St. Thomas's, have been any evidence; the person who made it being alive, and no impediment to prevent his deposition from being regularly taken? OCTOBER, 1810. V. Stras. the good schooner called the Sophia, George C. Leacy, master, and to continue and endure until the said goods and merchandises should be safely landed at Richmond aforesaid," Mar. Ins. Co. the second, "upon the body, tackle, apparel and other furniture of the said schooner, valued at 4,500 dollars," and to continue "until the said vessel be safely arrived at Richmond aforesaid, and until she be moored twenty-four hours in good safety." In each policy there was a clause expressing that "it should and might be lawful for the said vessel in her voyage to proceed and sail to, touch and stay at any port or places, if thereunto obliged by stress of weather, or other unavoidable accident, without detriment to the insurance." The rate of premium was 27 1-2 per cent. "to return five per cent. if the vessel did not proceed to a second port, and five per cent. (a) if the property returned in the said vessel,(b) and (a) If she was no loss happened: in all cases of return premium, one half per policy on the vessel.) cent. on the sum insured to be retained by the assurers: and (b) In the poit was mutually agreed by the parties, in each policy, that lie on no part of the premium should be returned, or abated, on account of any deviation which should be made by the owners, or their factors, from the present voyage." Hodgson, the agent of Stras, having, on the 2d of Decem ber, 1799, given his own note negotiable at the Bank of Alexandria for the amount of the premium being 2,754 dollars, with James Patten and James Dykes,endorsors, pay able in six months; Stras, on the 13th of May, 1800, filed a bill in the late High Court of Chancery against The Marine Insurance Company and the said Hodgson, and obtained an injunction to inhibit the defendant Hodgson from paying 1,825 dollars, part of the said note, until the further order of that - Court. The bill stated that "the said schooner, while on her direct course to Curraçoa, was chased by an armed vessel, which overtaking her fast, the Captain, to escape being captured, thought it most prudent to put into the island of St. Thomas, then not far to the leeward, where he arrived in not sold inthe cargo. the 1810. Stras. OCTOBER, Safety; that, on his arrival, he was deterred from proceeding to Curraçoa, from the information he had, of the way thither Mar. Ins Co. being greatly infested with privateers, so as to render it almost impossible to have escaped capture, had he continued his voyage; in consequence of which, and by the advice of his supercargo, he thought it for the benefit of all concerned to remain at St. Thomas's, sell the cargo, and take a return one, on freight, to Norfolk; that he accordingly did so, and left St. Thomas's on the 11th December, and arrived at Norfolk on the 30th of the same month, without touching at any port or place in the West Indies other than St. Thomas's; that the risk on a voyage to St. Thomas's being considerably less than on one to Curraçoa, the rate of insurance was of course less, and could have been effected at 10 per cent, on the outward voyage, and at the same rate on the return; so that the putting into St. Thomas's was a benefit to the insurers, whose risk was thereby considerably diminished. The plaintiff did not claim any thing on account of that difference of risk, but conceived himself, within the express terms of the policy, entitled to a return of 10 per cent. on the insurance, (which would amount to 1,000 dollars,) and to a farther deduction of premium on the return cargo, as no return cargo was taken on board, aud no risk incurred; (this at 13 1-2 per cent. on the said cargo amounts to 825 dollars ;) that, on the return of said schooner, it appeared the Captain had neglected to make any protest at St. Thomas's, or immediately on his arrival in this country; and, as it was deemed neces sary, for obtaining the return premium, that such proof should first be presented to The Marine Insurance Company of Alexandria, the Captain was written to at Norfolk, and requested to make out a protest stating his reasons for going into St. Thomas's; which was accordingly done; as would appear by his protest annexed to and made part of this bill." William Hartshorne, President of The Marine Insurance Company, answered, for and in behalf of the said company; averring the true intent and meaning of the policies to have been to insure from Norfolk to Curraçoa, with liberty, after arrival at Curragoa, to go to any other island in the West |