For the same reason we find it unnecessary to examine how far the French violated the agreement by their treaty of 1786 with Great Britain (15 Martens Recueil de Traités, 2d Ed., vol. 4, p. 155), or the efiect, by of abrogation of these agreements, of the Jay treaty, or the change in the form of government in France. way TITLE. Some argument has been made as to the ownership of this claim, based upon the provision of the statute that the court shall determine "the present ownership, and if by assignee, the date of the assignment, with the consideration paid therefor." (Sec. 3.) Whatever may have been the intention of Congress in inserting this provision, its terms are perfectly clear; the findings of fact show in this case that the claimant is the administrator with the will annexed of the owner of the Sally, and show all other facts necessary to a decision upon the subject, except as to one of the defendants' points; as to this we cannot agree that Congress intended this court to perform what is in effect a physical impossibility and to throw upon us the task of probate courts in the investigation of the rights of thousands of descendants and devisees of the original claimants, who are now scattered, in all human probability, to the four quarters of the globe. To ask this court to go back to the year 1800 and follow from that time down the succession of every then existing claimant is to ask us to do that which under our jurisdiction and powers would be an impossibility. A much more reasonable interpretation of the act appears upon its face, and applying that interpretation to this case we have found that the claimant, as administrator of the owner of the schooner Sally, is the owner of the claim. We consider it no part of our duty under the statute to place ourselves in the position of a court of probate and report to Congress the manner in which any ultimate recovery should under the laws of the thirty-eight States and eight Territories of this Union be distributed among the numerous next of kin or devisees of the original claimants and their descendants. The administrators are officers of those probate courts subject to their jurisdiction and control, and presumably have filed adequate bonds for the honest and proper performance of the trust reposed in them. Congress asks us for two facts: First, the present ownership. The owner, both in law and equity, the Supreme Court has said, is the administrator (Villelonga's Case, 23 Wal., p. 35), and that suffices for this particular case. Secondly, Congress asks, where there has been an assignment, not only the name of the present owner, but the date of the assignment and the consideration paid therefor. Of course these facts will be reported when such a case is presented. So we reach the end of this opinion as unlike the usual judicial expression in its form and supporting authorities as are the cases before us unlike those ordinarily submitted to a tribunal of the law. We are, however, for the moment invested with some of the powers and jurisdiction belonging to the political branch of the Government, and upon us is imposed an examination not usually or naturally committed to a judicial body. We have been required not to investigate legal rights, based upon the doctrines and principles of the common law, but to inquire into and to report upon the ethical rights of a citizen against his Government; rights which are never enforceable except by the consent of the sovereignin this country the legislature-as whose substitute we act to the limited extent prescribed and marked out by the remedial statute. The result which we have reached is supported by resolutions passed in each of the thirteen original States, by twenty-four reports made to the Senate by its committees, by over twenty similar reports made to the House of Representatives, by the fact that while three adverse reports have been made, one to the Senate and two to the House, no adverse report has been made in either body since the publication of the correspondence in 1826, and by the further facts that the Senate has passed eight bills in favor of these claimants, and the House has passed three of these, of which one is the present law, the other two having been vetoed, one by President Polk, substantially upon grounds not at this time important; the other by President Pierce for reasons which we have considered very fully in this opinion, and with which, after the most careful and painstaking consideration, we cannot agree. The arguments of counsel for claimants, marked as they were by ability, industry, and a frank desire for a just ascertainment of the rights involved, have been of great assistance to us; while the learned assistant attorney for the United States has presented the defense with a zeal and force of argument which we do not find in the history of the long discussions it has heretofore received. The chief justice and all the judges concur in this opinion, and we shall, in accordance with the statute, report to Congress the conclusions of fact and law in this claim, together with a copy of this opinion, which contains (using the words of the statute) the conclusions which, in our judgment, affect the liability of the United States therefor. No. 505.-GEORGE HOLBROOK, administrator de bonis non, estate of Edward Holbrook, deceased, v. THE UNITED STATES. Nos. 249 and 252.-CHARLES FRANCIS ADAMS, administrator de bonis non, estate of Peter C. Brooks, deceased, v. THE UNITED STATES. DAVIS, J., delivered the opinion of the court. The defendants demur generally in these cases upon the ground that the petitions do not state facts sufficient to constitute a cause of action, and they also move to strike out certain evidence as inadmissible. The argument, which was very general in its nature, has proceeded upon the understanding that the details of each case are to be considered at a later stage of the proceedings. It is unusual for general principles to be presented in a particular case when the case itself is not to abide the result reached by the court, yet, in view of the novelty of these claims, their age, their number, the peculiar jurisdiction conferred by the remedial statute, and in view of the importance to counsel of some light from the court in aid of the novel responsibilities cast upon them, we think it our duty to somewhat overstep the usual forms of judicial procedure in support of substantial right and justice. Three cases are presented together-one on behalf of the owners of the schooner Delight, the other two on behalf of the insurer of the vessel and cargo. The demurrer applies to all of these. Taking the petition of the owner's administrator as a model upon which to discuss the general question of form, we find it alleges the Delight to have been a duly registered vessel of the United States; that the claimant is, and his intestate was, a citizen of the United States; that the schooner sailed from Boston for Saint Bartholomew's, and during the prosecution of her voyage was "illegally captured on or about the 19th day of July, 1799, by a French privateer called the Courageuse," and, with her cargo, condemned as prize at Guadeloupe by a French tribunal, in violation of the law of nations and the treaties between the United States and France. In considering the demurrer to this petition it must be remembered that we are not here to enter judgment under this act, but to advise Congress; to report to that body our conclusions of fact and law. In performance of this duty we do not feel authorized to throw a case out of court because of some technical defect in form not going to the merits, and which may be remedied without injury to the defendants. It is urged that the use of the word "illegally" before the word "captured" is bad pleading, as involving a conclusion of law. This point may be passed with the observation that in our opinion the word is at most mere surplusage. The averment that the vessel was seized by a French privateer during a commercial voyage, at a date when, as we have hereto 17006-1 (49) fore held, this nation was at peace with France, and that she was afterwards condemned, is sufficient allegation of illegality in the capture. We are not quite so clear about the averment of place of seizure, which it is urged should affirmatively appear as upon the high seas, and at this early stage do not think it advisable to announce any opinion as to the presumption contended for by the claimants that a vessel prosecuting a voyage across the ocean, and seized during that voyage, is seized upon the high seas. Should future argument show this point to be important, the claimant will have leave to amend in accordance with the facts developed. We conclude the petition to be sufficient in form, and the argument made for the defense as to the validity of claims of this class against France and their assumption by the United States having been fully considered in the case of William Gray, administrator, decided after the argument of the case at bar, we overrule the demurrer upon these points. There remain to be considered in this connection the position and rights of insurers. One of the petitions alleges that Brooks, as agent of underwriters, insured the Delight against loss "from dangers of the sea, fires, enemies, pirates, assailing thieves, restraints, and detainments of all kings, princes, and people of what nation and quality soever, barratry of the master; and of the mariner and all other losses and misfortunes that have or shall come" to the vessel, and alleges further that insurance was paid after capture, that said Brooks repaid to each underwriter the amount underwritten by him, receiving in return an assignment of all the interest of such underwriter. The other important allegations, such as those concerning ownership and condemnation, are substantially the same as in the owner's petition. The only interest the Government appears to have in a question of this kind is, that there shall not be a double payment or an overpayment on account of any one loss, so that in effect we have but to solve the rights of the owners and insurers as between themselves, which are determined by principles of insurance law already well settled by the courts. Insurance is a contract whose object is indemnity, for which the consideration received by the insurer is twofold; first, his premium; second, his hope of recovery should a loss occur, his spes recuperandi. * * * This hope cannot exist unless there is a reasonable prospect of some recovery. It cannot exist where a vessel has sunk at sea, but it does exist where a vessel is simply stranded but not become a total wreck, "where any part of the property exists in specie as when the vessel is stranded and still alive." Where something may be possibly saved, the owner claiming absolute loss must "abandon" to the insurer, relinquishing thereby all his rights to any possible future recovery from the thing insured. Abandonment is always based upon the existence of some hope of recovery, and where the hope does not exist it is an unnecessary form. When abandonment is made and the insurance paid the insurer stands in the place of the insured, and is entitled to all the advantages resulting from that situation, and this right relates back to the loss. (Park on Ins., 143; 1 Wash., C. C., 443; 12 Peters, 378; 1 Sumner, 328 and 400; Phillips on Ins., 1707; 2 Parsons on Marine Ins., 194; 104 Mass., 107; 12 Pick., 348.) When a total loss has been paid there passes to the insurer not only what remains of the ship in a material form, but likewise all rights incident to the property of what |