The vice chancellor was clearly right in overruling the demurrer in this cause, notwithstanding the objections to the complainants’ right to relief upon the case made by their bill. There is no substantial difference in respect to awards made by the commissioners under the recent French treaty, and similar awards made under the previous treaty with Spain. The decision of this court in Delafield v. Colden, (1 Paige’s Rep. 139,) and a similar decision of the supreme court of the United States, in Comegys v. Vasse, (1 Peters’ Rep. 193,) which, was made about *567the same time, in cases arising under the Spanish treaty, are, therefore, authorities in point to show that the decision of the commissioners, awarding to the defendant a part of the fund given as an indemnity for the cargo taken by the French government, is not conclusive as between them and these complainants.
That the whole amount allowed for the seizure of the cargo belonged exclusively to the complainants, equitably as well as legally, cannot, I think, be doubted. If the underwriters, when there was a technical total loss of the cargo by the seizure, had accepted the abandonment and paid the $15,000, which they agreed to pay in such case, together with the expenses to which the assured had been subjected in endeavoring to save the property, they would unquestionably have been subrogated to the rights of the assured as to that part of the cargo which was insured by the defendants ; and the indemnity allowed by the treaty, to that extent, would have belonged to them. But by compromising the claim made by the assured for a total loss, without accepting the abandonment or stipulating for an interest in the spes recuperandi, the underwriters must-be considered as having relinquished any claim or interest in the future chance of recovery from the French government; in consideration of the relinquishment by the assured of their right to the other two thirds of the insurance money, in case the loss should eventual^ turn out to be total. And having by the compromise secured to themselves an exemption from this portion of their liability, in case the loss should be total, the underwriters cannot in equity or conscience insist upon the repayment of what they paid to the assured upon that compromise; although the result of such compromise has been favorable to the assured.
Although it is probable that an action for money had and received might have been sustained in this case, in the name of the surviving owner of the cargo, the case of Randal v. Cochran, (1 Ves. sen. 98,) shows that a remedy in equity is also given; upon the ground that the person receiving the fund under such circumstances is a trustee thereof, for the benefit of the party who is equitably entitled to the same. *568The equitable action of assumpsit is now allowed in many cases of this kind, where the remedy originally was inequity only. But the fact that a remedy now exists at law in such cagegj ¿oes not deprive this court of its ancient jurisdiction to grant relief here. Or, in the language of an English chancellor, this court is not at liberty to give up its jurisdiction because courts of law have fallen in love with it. But I admit it probably would be wise in the legislature to take from this court a great portion of the jurisdiction which is now concurrent with courts of law, and confine it exclusively to those courts; where the parties could have the benefit of an open examination of the witnesses in the presence of the court and jury.
The decision of the vice chancellor overruling the demurrer in this case is affirmed, with costs.