however, from the answers, that the two periods, of ten, and twenty years, are usually considered as establishing a title, and that persons claiming beyond those periods, must bring themselves clearly within some exception.

Crops may be mortgaged distinctly from the estate, and the crop may be mortgaged to one creditor, and the estate to another. The crops may be mortgaged to any amount, and of course, for any number of years. And if I understand rightly, a mortgage of the crops does not prevent a subsequent mortgagee of the estate from obtaining a decree of sale of the estate, to satisfy his mortgage; after the satisfaction of which, the excess of the price is paid over to the mortgagee of the crops, provided, of course, that his mortgage is registered; so that a mortgage of the crops may be defeated by a subsequent mortgage of the estate to the amount of two thirds of the valuation. But if the mortgage of the crops contains a stipulation not to mortgage the estate, and is registered, any subsequent mortgage of the estate, before that of the crops is satisfied, is void. And so an agreement for such a mortgage cannot be carried into execution, during the existence of the mortgage on the crops containing such a stipulation.

All kinds of property, both real and personal, are subject to attachment in Cuba at the suit of creditors; but to make an attachment of an estate valid against a subsequent purchaser or incumbrancer, the attachment must be registered in the registry of mortgages.

In case of the husband's decease, all his creditors are preferred to his widow, except to the amount of her portion or separate property, (dote) that is to say, the widow has no right of dower in our sense of the word. But still it is said that the laws here respect foreign laws in relation to contracts made abroad, or parties residing abroad. The doctrine of the lex loci contractûs seems to be adopted here in the same force as in the United States, and even to have a wider operation, for, as foreigners are allowed to hold certain descriptions of real estate here, the opinion seems to be that the laws of the place of residence of the parties, in relation to dower or separate property of the widow, will prevail, and be adopted here in disposing of the estate of the deceased husband. But there would be a good deal of difficulty in enforcing any claim of a widow for dower out of an

estate sold here during the life of the husband, it seems to me, since the laws here would no doubt prefer creditors in case of the estate being insolvent, and this would be so far a departure from a strict application of the foreign law. Then, again, the question would occur whether the real estate, at the place of residence, was not sufficient to satisfy the claim. And again, in case of sale by order of court on application of a mortgagee, unless the wife make application for a reservation of the amount of her dote, but leaves the proceeds of the estate to be paid over to others, she forever loses her claim upon the estate and can make none upon the purchaser. And both the jurisconsults whose answers were taken, stated very distinctly and emphatically, that a sale by a tribunal would cut off all subsequent claim by the wife, either before or after the death of the husband, and they evidently had never heard of the claim of dower in the sense and construction of the English law, being made, and much less, admitted in the island. But from what has been said already respecting the latitude in which the doctrine of the lex loci contractûs is admitted here, it seems to be a matter of some little doubt, in case of a marriage and residence in a foreign country, how much respect would be paid in Cuba to the laws of the country where the parties should be married or reside, in determining the right of the widow to dower in estates possessed in fee in the island by the husband. Though there would be difficulties in the way of establishing the claim here, and administering upon a doctrine so foreign and uncongenial to the laws and institutions of the place, besides the difficulty and expense and perplexity of maintaining any claim in the tribunals of the island, yet it is a claim which it is better to guard against, than to leave an estate open to it.

In case of a foreign proprietor, his estate here will descend, or may be devised according to the laws respecting descent of lands, and the right of making devises by will in the country where the proprietor resided.

No alcavala is paid on the estates of persons deceased in case of devise, bequest, or descent.

W. P.

ART. III-INSURANCE-DEDUCTION IN REPAIRS.1

A question has lately arisen among the Insurance Companies in Boston, as to the mode of adjusting a partial loss on a ship when the old materials or a part of them have been saved. It is said that the uniform practice in Boston has been, first to deduct from the cost of the repairs the allowance of one third, new for old, and from the balance to deduct the value of the old materials, and that the residue is the amount for which the insurers are liable; and this is said to be the usage in most, if not all, of the commercial States in Europe. It appears, however, that the Supreme Judicial Court of Massachusetts in a late case (Brooks v. The Oriental Insurance Company of Salem) which is not yet reported, have decided that the value of the old materials must first be deducted from the cost of the repairs, and the allowance of the one third be made only on the balance. A like decision was made in New York in the year 1823, 1 Cow. Rep. 265, Byrnes v. The National Insurance Company; and this opinion was adopted as the settled law by Chief Justice Savage in the case of Dickey v. The New York Insurance Company, 4 Cow. Rep. 222, 245. Chancellor Kent, also, in his Commentaries, 3, 283, states the law in the same way, but without citing any authority, other than the abovementioned case from 1 Cowen's Reports.

Under these circumstances several of the Insurance Companies in Boston have proposed to present this question anew to the consideration of the court; and they wish for an opinion upon it, considered as an open question, independently of the authority of any decisions or usage.

The Boston policies, in the clause containing the enumeration of the perils insured against, after specifying the seas, fire, enemies, &c. add, and all other losses and misfortunes which have or shall come to the damage of the said ship, &c. to which assurers are liable by the rules and customs of Assurance in Boston.' The insurance companies therefore inquire:

2dly. Whether this clause, coupled with the uniform practice or custom above mentioned, will not settle the question on all

1 The above opinion of Judge Jackson was published in the Boston Daily Advertiser of February 10th, 1831.

2 Since reported, 7 Pick. 259.

policies effected in Boston, whatever may be the general rule of law.

OPINION.

From the sketch which I have seen of the opinion of the court in the case of Brooks v. The Oriental Insurance Company, it does not appear whether this question was fully argued, and deliberately considered by the court; or whether it was hastily decided as a point already settled by the two cases in New York. However that may have been, as the point has never been considered but once in the Supreme Court of Massachusetts, it is no proof of disrespect to present it again for a revision by the same court. In New York, also, it may be said to have been argued and considered but once only; as in the second case the point was not at all discussed, but was taken for granted; and if these decisions are opposed to the common usage and the opinions of practical men, in this country and in Europe, it ought not perhaps to be deemed presumptuous if the insurers attempt to obtain a removal of them. I presume, therefore, that the court would have no objection to see the question brought again before them, and that they would readily give it a new examination.

When in repairing a ship her old rigging or other materials are replaced by new, it must generally happen that the ship is better than she was before the accident; and therefore if the assured recovers the whole expense of the repairs he will be more than indemnified. If we could always ascertain exactly the extent to which the value of the ship was increased, we ought to deduct that amount from the sum paid for the repairs, and the balance (when there is no salvage) would be the real amount of the loss to the assured. If he receives more or less than that balance, he receives so much more or less than an indemnity. But as it is difficult, and sometimes impossible, to ascertain precisely the amount of this increase in value, the law has assumed one third as the difference in all cases between the new and the old materials; and if the fact always corresponded with this legal presumption, I believe there would never have been any doubt on the question now under consideration. The sum which goes to increase the value of the ship, is obviously not paid to repair the damages caused by the perils of the seas; that sum, therefore, should always be first deducted, and the residue of the expenses is the amount of the actual loss, when

there is no salvage. If there is any thing saved from the old materials and sold, and the proceeds applied to pay for the repairs, this does not alter the proportion previously existing between the value of the ship before the accident, and her value after the repairs. If fifteen hundred dollars are expended in repairs, and her value is thereby increased five hundred dollars, it can make no difference whether the fifteen hundred dollars is received from one source or another; whether part of it is derived from the sale of the old materials, or the whole advanced by the assured or his agents. The allowance, therefore, on account of the increased value, should always be made on the gross amount expended for repairs.

The proportion of one third new for old, established by law, however convenient and just as a rule of practice, is often very far from the truth; and it is, I think, by imagining and stating strong cases arising out of that rule, that so much obscurity and doubt have been thrown on the other rule, which respects the manner of making or deducting the allowance.

If, in stating a case, we take in one part of our statement, the increased value at one third, as established by law, and in another part we take the increased value according to the fact, as for example, at one sixth, it is not surprising that the result should appear to be incorrect and unjust. But if, as before observed, the fact corresponds with the presumption; or if, in settling the present question, we look only to the fact, and disregard the presumption; or, thirdly, if we adhere to the presumption throughout the whole of the case, I believe it will appear that the rule which I am recommending will in every instance give to the assured a complete indemnity and no more.

Let us suppose, for example, that the ship loses a cable which is one third worn, and which in that state is worth two hundred dollars; and this is immediately replaced with a new cable which costs three hundred dollars. The loss is two hundred dollars, and if the assurer pays that sum, the assured is fully indemnified. If after this payment, the old cable should be recovered, and taken by the assured for his own use, it is obvious that he would receive more than an indemnity. But if the assurer takes it to his own account, the assured is still indemnified, He has lost nothing in consequence of the cable being fished up, and delivered to the assurer, and as he was indem