MURRAY V. SCHOONER the insurance actually paid, and such expenses as were necessarily sustained in consequence of bringing the CHARMING Vessel into the United States, as the standard by which the damages ought to be measured. Each party to pay his own costs in this court and in the circuit court.All which is ordered and decreed accordingly. BETSY. A true copy. E. B. CALDWELL, Clerk Captain Murray was reimbursed his damages, interest and charges, out of the Treasury of the United States, by an act of Congress, January 31st, 1805. CAPRON V. VAN NOOR DEN. A plaintiff may assign for error the want of jurisdiction in that court to which he has chosen to resort. A party may take advan tage of an erFor in his fa. vor, if it be an error of the Court. The Courts of the U. S. have not jurisdiction unless the record shows that the parties are citizens of different states, or that one is an alien, &c. CAPRON v. VAN NOORDEN. ERROR to the Circuit Court of North-Carolina. The proceedings stated Van Noorden to be late of Pitt county, but did not allege Capron, the plaintiff, to be an alien, nor a citizen of any state, nor the place of his residence. Upon the general issue, in an action of trespass on the case, a verdict was found for the defendant, Van Noorden, upon which judgment was rendered. The writ of Error was sued out by Capron, the plaintiff below, who assigned for error, among other things, first "That the circuit court aforesaid is a court "of limited jurisdiction, and that by the record afore"said it doth not appear, as it ought to have done, that "either the said George Capron, or the said Hadrianus "Van Noorden was an alien at the time of the commence"ment of said suit, or at any other time, or that one of the said parties was at that or any other time, a citi"zen of the state of North-Carolina where the suit was brought, and the other a citizen of another state; or that they the said George and Hadrianus were for any cause whatever, persons within the jurisdiction of "the said court, and capable of suing and being sued "there." 66 And secondly, "That by the record aforesaid it man"ifestly appeareth that the said Circuit Court had not any jurisdiction of the cause aforesaid, nor ought to "have held plea thereof, or given judgment therein, but "ought to have dismissed the same, whereas the said "Court hath proceeded to final judgment therein." Harper, for the plaintiff in error, stated the only question to be whether the plaintiff had a right to assign for error, the want of jurisdiction in that Con to which he had chosen to resort. It is true, as a general rule, that a man cannot reverse a judgment for error in process or delay, unless he can shew that the error was to his disadvantage; but it is also a rule, that he may reverse a judgment for an error of the Court, even though it be for his advantage. As if a verdict be found for the debt, damages, and costs; and the judgment be only for the debt and damages, the defendant may assign for error that the judgment was not also for costs, although the error is for his advantage. Here it was the duty of the Court to see that they had jurisdiction, for the consent of parties could not give it. It is therefore an error of the Court, and the plaintiff has a right to take advantage of it. 2 Bac. Ab. Tit. Error. (K. 4.)—8 Co. 59. (a) Beecher's case.— -1 Roll. Ab. 759.-Moor 692.-1 Lev. 289. Bernard v. Bernard. The defendant in error did not appear, but the citation having been duly served, the judgment was reversed. CAPRON V. VAN NOOR DEN. HEAD & AMORY v. HEAD & AMORY, v. THE PROVIDENCE IN. THE PROVI SURANCE COMPANY. DENCE INSU- PANY. If the insured sition to the underwriters make a propo THIS was an action on the case brought by the plaintiffs in error, upon two policies of insurance, in the Cir. cuit Court of the first circuit, holden at Providence in the district of Rhode-Island, † in which action judgment was rendered at April term 1802, for the plaintiffs in to cancel the error, upon one of the policies only, viz. that upon vessel. the policy, which proposition is rejected-If the underwri Under the act of Congress of February 13, 1801, by which sixteen ters afterwards Circuit Judges were appointed HEAD & AMORY v. THE PROVI PANY. assent to the The declaration consisted of four counts 1st. A special count upon a policy dated September DENCE INSU- 12th, 1799, by which the defendants in error insured the RANCE COM plaintiffs "ten thousand dollars, on merchandize on board "the Spanish brig Nueva Empressa, at and from Malaga "to Vera Cruz, and at and from thence to her port of discharge in Spain; the property being shipped in the « name of Spaniards, and the assured not appearing as owners many of the papers,' "."beginning the adven"ture upon the said merchandize at Malaga as aforesaid, "and to continue during the voyage aforesaid, and until said vessel shall be arrived and moored at anchor. twenty-four hours in safety." proposition, but before information of such assent reaches the insured, they have notice of the loss of the vessel insured, such proposi tion and assent do not in law amount to an agreement to cancel the policy. A corporate body can act only in the manner prescribed by the act of incorporation which gives it exist. 2. A special count on another policy dated April 5th, 1800, on the vessel, at and from Cuba, to her port of discharge in Spain, by which the defendants ined the plaintiffs the sum of six thousand dollars. 3. A count for money had and received. 4. A count for money paid, laid out, and expended. The defendants pleaded the general issue, and the ence. It is the defence set up at the trial was that the first policy (viz. on the merchandize) was discharged by a subsequent agreement between the plaintiffs and defendants. mere creature of law, and de. rives all its powers from the act of incorpation.. The jury returned the following verdict: "We find on "the first count of the plaintiffs' declaration, that the "defendants did not promise in manner and form as set "forth in the declaration. On the second count we find "the defendants did promise in manner and form as set "forth in the declaration, and assess damages for the "plaintiffs in the sum of fifteen hundred and forty-two "dollars and five cents, being the sum due on said policy "after deducting the amount of the premium notes due on both said policies with cost." A bill of exceptions was taken by the plaintiffs at the trial, which stated that they gave in evidence, a copy of the act of incorporation of the said company, and the HEAD V. two policies of insurance, which were admitted by the defendants' counsel to have been duly executed in behalf & AMORY of the company. That the defendants' counsel "further THE PROVI agreed and confessed before the said Court and Jury, DENCE INSU"that the plaintiffs had interest in the said vessel, called RANCE COM"the Nueva Empressa, and the cargo on board the same, ،، 66 to the full amount of the sums assured as aforesaid in "said policies; and that the same were captured in and upon the prosecution of the voyage mentioned in said policy, on the first day of August, 1800, and after"wards on the 30th day of said month of August, were "condemned by the Court of vice-admiralty at St. 66 John's, Newfoundland, as prize of war to the officers "and crew of the British ship of war called the Pluto, "who captured the same as aforesaid, whereby the prop6: erty insured as aforesaid, was utterly lost to the plain"tiffs. Whereupon the said defendants, by their counแ sel, did contend and insist before the said Court and Jury, that the force, effect and obligation of said policy on said cargo, was settled and discharged by a subsequent agreement, which they alleged to have been "made between the plaintiffs and the said Providence "Insurance Company, and thereupon read and gave in "evidence to the Jury on the trial aforesaid, a certain "letter from the said Head & Amory to Nicholas Brown "and Thomas P. Ives, merchants, doing business under "the firm of Brown & Ives, bearing date the 21st of "August 1800, which letter was admitted by the plaintiffs," and is as follows. Messrs. Brown & Ives, GENTLEMEN, Boston, August 21, 1800. We have your favour under the 18th inst. The brig Nueva Empressa is still detained at the Havanna; having expected a convoy, and the place being closely watched by British cruisers, the master has thought it prudent for all concerned not to proceed to sea; we have no direct advices from him, but we learn by an American master from thence, that the vessel is very much eaten by the worms, and was so leaky that R PANY. HEAD & AMORY V. RANCE COM- great repairs must be made, and, perhaps, it will be neces sary to re-ship the effects in some other Spanish bottom. THE PROVI. We are about making the attempt to have the voyage terDENCE INSU- minated at the Havanna, which can only be done by the consent of the officers of the Spanish government there, and that gained by a considerable douceur, but before we make this attempt, we wish to know at what rate we can settle with the underwriters on the merchandize, and if we can make it for our interest, and permission as aforesaid can be obtained, we would terminate the adventure at the Havanna. Some of the concerned have made an agreement with their underwriters in this town to return twenty-five per cent, and anish the risk on the above conditions, the hazard of her getting safe to Spain, free from capture, being very great; we wish a conditional permission from our underwriters to end the voyage, if we can effect it, and the rate of premium they will in such case return. The bill of exceptions then states that the defendants' counsel further offered and gave in evidence to the Jury, the following papers. 1. A letter from Brown & Ives to the plaintiffs, dated August 26th, 1800, in which they say, "Your letter to "us on the subject of that vessel (the Nueva Empressa) "was laid before the Insurance Company, and the sec66 retary says, "If Messrs. Head & Amory are disposed "to make a settlement and cancel the policies, the directors will agree to return 25 per cent, but they are not disposed to make any conditional agreement.' 2. A letter from the plaintiffs to Brown & Ives, dated Boston, August 28, 1800, as follows, "We have your favour under the 26th instant. We note the answer of the Providence Insurance Company to our proposal; we are sorry they will not accede to our proposition for making the agreement conditional. On reflection we conclude to accept their offer and cancel our policy, they giving up our note on our paying one half the |