
    Bell and others against P. N. Smith, President of the Columbian Insurance Company.
    Where a ves-selby the per-becomesiesoSCa as'to're’nier'a necessary to sell her in a foreign port, her ^'aju'c * 0°n «eral averafe" is to be calculated, is the a-tualK^and bona'fide sold ■the’ four*fifth of her original value, as in case of capture, whether mentwas ac-“ífque'stion^ ?f fact f°r the mine,
    
      . # This was an action on a policy of insurance, on the ship Mary, on a voyage from Charleston to Glasgow, and ^rom thence to Philadelphia. The cause was tried at the New-Yorlc sittings, on the 13th of June, 1806, before Mr. . J UStlCG 1 hompsOU.
    The Mary set sail on her return voyage with a cargo for Philadelphia, but was compelled by stress of weather, to put into LamlashBay, ami afterwards van aground; and became so much injured, that it was thought best to break up the voyage, and sell her at public auction.— The vessel did not sell for one half of her first cost. An abandonment was made to the defendants, as for a total loss ; and proof given of an acceptance of the abandonment. But the suificicncy of the proof was much contested on the argument. The counsel at the trial agreed to submit the single point to the decision of the jury, vvhe-ther there had been an acceptance of the abandonment or not; and if the jury should be of opinion that the abandonment was accepted, that then a verdict should be entered for the plaintiff, subject to an agreement to refer it to two persons, with liberty to choose a third, to adjust the amount of loss on the principle of a total loss, and that the referees in the report should state the principle on which they made the adjustment, in order that it might make part of the case, and be submitted to the decision of the court. It was further agreed, that either party might move the court to set aside the verdict, on the point submitted to the jury.
    The jury found a verdict for the plaintiff on the point of an acceptance of the abandonment.
    As the only point decided by the court related to the mode of adjusting the amount of loss, it is unnecessary to state the particulars of the evidence given to the jury, or the arguments of counsel, on the other question, which would not be well understood without a reference to the various documents and papers accompanying the case.
    
      Ilarison and T. L. Ogden, for the plaintiff.
    
      Bogart and Hoffman, for the defendant.
   Per, Curiam.

Whether there was an acceptance of the abandonment or not, under all the circumstances, was a matter of fact for the jury to decide, and we are not disposed to disturb their verdict. The only point for our decision is as to the rule to be adopted for calculating the amount which ought to be paid bv the defendants,

The case of Leavenworth v. Delafield, only settled how the different interests were to contribute towards a general average in case of capture, where no disaster had happened to injure the vessel or cargo. It would be obviously unequal to apply the same rule, where a vessel, by perils of the sea, has been so much deteriorated as to render a sale abroad necessary, and where the proceeds fall so far short, as they do in this case, of her original value. Where her real value is thus ascertained, that •is, by an actual and bona Jide sale, the owner should be made chargeable only on the amount for which she sold, which mode .of adjustment must be pursued in this case.

Judgment for the plaintiff. 
      
      
         1 Caines, 578.
      
     