Page:United States Reports, Volume 1.djvu/327

316 

1788.

an exception during the continuance of the late war) we have uniformly acceded ; and 3dly, where there has been a vexatious and unreafonable delay to making payment, which will induce the Court to direct, and the Jury to grant, an adequate compenfation, under the name of damages, for which the rate of intereft is generally made the rule of computation.  The doctrine upon this fubject was fully cifcuffed and determined in Henry Exor. vs. Riʃte et al. ant 265.  We think it eftablifhes a juft and ufeful principle, which tends equally to promote credit, and to prevent feuds and litigations.  In tranfgreffing this principle, the Referees have miftaken a clear point of law, which would alone be fufficient for fetting afide their report.

But, befides this, we find by the evidence under the ʃixth exception, that they have alfo allowed the charge of premium and commiffion for making an Infurance, without requiring the Policy to be produced that, in fuch cafes, can be admitted in any Court, either of civil or common law jurifdiction. It is, indeed, a fundamental maxim in the laws of evidence (wifely framed for the prevention of frauds) that the beft proof, of which the fact reafonably admits, ought to be given. This had not been complied with on the prefent occafion ; and the Referees in over-looking it, have violated another plain principle of law.

Upon the whole, as our decifion againft the Plaintiff can produce no material injury, but if againft the Defendant, would forever preclude him from a chance of juftice, unanimoufly direct.

That the Report be fet afide.

For the Plaintiƒƒ were cited :– 5 Bac 250. 1 Bac. 134. 2 Burr. 701. Salk. 71.73 3. Burr. 1259. 2 Vern. 705. 1 Vern. 157. ''Bull. L.N.P.'' 170. 180. 8 Vin. 61. 1. Atk. 67.2 Vern. 706. 3 P.Wms. 25. 408. 3 Atk. 509.

For the Defendant were cited:–2 Vern. 515. 1 Atk. 64. 2Vern. 705. 3Atk. 494. 3 Burr. 1259. 5Burr. 2729. 1 ''Ld. Ray.'' 271. 12 Vin. 25. pl. 35. Cowp. 445. Doug. 627. 1 Shew. 173. 1 Salk. 392. ''Gilb. L.E.'' 4.5.16.17. 

HIS was a Certiorari to one of the Juftices of the city and county of Philadelphia, and the proceedings being returned, it appeared, that Plowman, the Defendant, before the Juftice, had appeared to the Common Pleas  and entered fecurity agreeably to the act of Affembly; but on a certificate from the Prothonotary of that Court, that the appeal was not filed, the Juftice iffued an execution againft the Defendant. Dallas