
    David Thatcher and Others versus John Bellows.
    The assured in a policy of insurance agreed, in case of capture, “ to claim and prosecute as Spanish property, until condemnation in the High Court of Admiralty, or acquittal; and the assurers agreed to contribute to the expenses thereof to the assured, according to their respective interests.” The vessel was captured and condemned, and the assured, after abandoning, failed to make any claim or prosecute any appeal; claiming of the underwriters to advance the necessary funds. It was holden, that they were not entitled to recover ; it being their duty to make the claim, and prosecute the appeal with their own funds, and for their expenses the underwriters would have been held to indemnify them in any event.
    Assumpsit on a policy of insurance, dated November 2, 1813 ; by which the plaintiffs, as well in their own names, as for and in the names of any other person or persons, are insured the sum of $500, on the Spanish brig San Pedro, and $2000 on her cargo, from Boston to the Havanna. There was a stipulation in the policy, that, in case of loss, no proof of property should be required, and that there should be no return of premium. The policy also contained a clause in these words ; — “In case of capture, the assured agree to claim and prosecute as Spanish property, and to prosecute the same until * condemnation in the High Court of Admiralty, or acquittal; and the assurers agree to contribute to the expenses thereof to the assured, according to their respective interests.”
    At the trial, w'hich was had at the last November term in this county, before Jackson, J., it appeared, that the plaintiffs were owners of one half of the vessel and cargo, exceeding in value the sum insured, the whole being covered as Spanish property. The vessel, while sailing on the voyage insured, sustained some damage in a storm, which rendered it necessary to put into the nearest port. She arrived at New Providence, where, after landing a part of the cargo, the vessel and the remainder of the cargo were seized as prize of war; and were afterwards, in December, 1813, libelled and condemned in the Court of Vice-Admiralty there.
    No claim was made in the said Court of Vice-Admiralty for the said vessel or cargo, nor was an appeal claimed from the said decree of condemnation. Th? Spanish master, who conducted the business there for the owners of the vessel and cargo, made a protest; and it was said by some merchants and others at New Providence, that the owners might, upon such a protest, claim and prosecute an appeal, as well as if a claim had been filed in the common form in the said Court of Vice-Admiralty.
    Upon receiving advice of the said loss, the plaintiffs communicated the intelligence to the underwriters on the policy, and demanded payment as for a total loss.
    Some time in the summer of 1814, the plaintiffs informed the underwriters by letter, that no appeal was claimed by the master at New Providence ; because he was unable to give the bond required in such case, or to deposit the £200 sterling, which is necessary when such bond is not given ; and upon receipt of that sum they undertook to claim the appeal.
    On the 31st of October, 1814, they sent another letter to the underwriters, stating, that they considered the said* underwriters as alone interested in the business ; and that they ought accordingly to instruct the plaintiffs how to proceed, and to furnish them with the money necessary for the purpose ; and adding, that, if there was any doubt which party ought to advance the money, they would leave that question'to any suitable men.
    On the 28th of November, 1814, the plaintiffs wrote a third letter to the underwriters, stating, that there was a person then about sailing to the Havanna, who would attend to the appeal, or any thing else concerning this vessel and cargo, which the underwriters should wish to have done.
    Neither the defendant, nor any of the underwriters upon the policy in question, ever advanced any money, or gave any directions to the plaintiffs concerning the business.
    Upon this evidence the judge was of opinion, that the plaintiffs had not shown any sufficient reason for omitting to claim the vessel and cargo in the Court of Vice-Admiralty, and to claim an appeal from the said decree of condemnation, according to their agreement in the policy ; and the jury were instructed to find a verdict for the defendant. Such a verdict being returned, the plaintiffs moved for a new trial, on account of the said direction.
    Welsh, for the plaintiffs.
    
      Shaw, for the defendant.
   Curia.

There is no doubt in our minds on the construction ot ¡.he agreement in this policy, respecting the claim and prosecution of an appeal in case of capture. The assured undertook to make the claim and to prosecute the appeal of themselves ; and their right to recover of the underwriters .depended upon their performance of this agreement. The underwriters were to contribute to the expense. But the expense was first to be incurred, or at least the foundation of it should have been laid by an actual claim. There is no excuse for the neglect to file a claim. It was not the business of the underwriters to give the necessary bond, or to advance any part of the sum of money required. They undertook to indemnify for this, * in addition to the principal loss, if there should be a final condemnation ; and to contribute towards this expense, if there should be an acquittal.

Judgment on the verdict.  