
    Wm. Budd, survivor of Schult & Budd, vs. Union Insurance Company. John Rose vs. the same.
    
      The insured eannot abandon for a total loss, unless the loss from the sea damage exceed one half of the goods ensured, or the gross amount paid for them.
    Where the jury give a verdict for a partial loss, it does not follow that they must give interest on the amount of loss, and the verdict will not be disturbed where the defendants had offered to pay the partial loss.
    
      rp JL HESE were two separate actions on two policies of Insurance on certain goods, viz: 114 whole and 29 half casks of rice shipped on board the sloop Hope, Captain Johnston, tried before Mr. Justice Richardson, at Charles - ton. The policy of Schult & Budd was dated 21st September, 1821, from Charleston to New Orleans, with liberty to touch at Pensacola, on $¡1,550. The policy of John Rose was dated 23rd September 1821, for the same voyage, on $2,000. The sloop Hope sailed from Charleston on her destined voyage. At the time of her departure she was sound, staunch, and in every respect, seaworthy; but on the 24th October 1821, she met with severe gales which compelled a deviation. She made for the Balize at the mouth of the Mississippi River;. heavy gales still continuing, and on her arrival at the Balize, she struck on an old wreck; on getting her off the wreck and bank, it was discovered that the leak had gained so fast as to render it necessary for the pilot to run her as near the mud bank at the Balize as possible, to prevent her going down. The cargo was all landed at the Balize. The ground floor consisted of 54 casks which the Captain thought were all more or less damaged. On the 30th Oct. the Captain departed from the Balize for New Orleans with a part of the cargo in lighters, where he arrived on the 3rd Nov.and landed the same on the 5th and 6th of November. On the 11th November, he again sailed from the Balize for New Orleans with another portion, and on the 20th November, the residue of the Hope’s cargo arrived at New-Orleans. The regular-protests were noted and extended. On the arrival of the eai-go at New Orleans, a survey by the Port Wardens was called, and the surveyors returned that 28 casks were more or less damaged. As to the number of casks found to be damaged, there was a variance; one witness testifying that as many as 46 were actually damaged, and, perhaps, more. The cargo was abandoned to the underwriters, as a total loss, and the same was sold by order of the consignees at public auction. The amount of nett sales was §2,367,10. Of this amount Schult & Buck} were entitled to receive §864,90, after paying other expenses, exclusive of salvage, and John Rose was entitled to receive §1,079,08, after paying the expenses, exclusive of salvage; and the amount of salvage allowed was 44 per cent on the whole amount.
    The plaintiff contended at the trial for the right to abandon, and claimed for a total loss. The defendants objected that there was not a total loss, and that the plaintiffs were entitled only to receive compensation for the 28casks, said by the Port Wardens tobe injured.
    RiciiardsoN, J. charged the jury that in his opinion there was a total loss, and that if they gave the plaintiffs the 28 casks or more as the amount damaged, they were at liberty to find a verdict for the true loss with or without interest at their sound discretion.
    The jury found a verdict for 46 casks injured, but allowed no interest, giving to Schult & Budd §612,78 and to John Rose §801,28. From these verdicts, the plaintiffs appealed, and Cogdell and Gilchrist made the following points—
    * 1st. That the verdicts of the jury were erroneous, in as much as a partial loss was found and no interest thereon allowed.
    2nd*NThat the presiding Judge was wrong in charging the jury that a partial loss only was proved, when in fact the evidence established a total loss.
    Toomer, for the defendants.
   Curia, juer

Coucock, J.

Two questions are presented in this ease: 1st. Whether the insured had a right to abandon as for a total loss? and 2ndly, Whether the plaintiffs were entitled as a matter of right to interest on the amount found by the jury for a partial loss? It is now,! with us, the well settled doctrine that the insured cannot abandon as for a total loss, unless the loss exceed the" one half of the goods insured, or the gross amount paid for them, and that from the sea damage which they sustain. Marshall on Insurance. Gardiner v. Smith, 1 Johnson’s Cases 141. Ludlow and Col. Ins’ce. Co., 1 Johnson’s Rep. 335. Vandenheuvel v. Un. Ins’ce. Co. ib. 435. 2 East 581. 3 Johnson’s Cases 217.. The ordinance of the Marine of Lewis 14th which in this, as in most other particulars, is collected from the same ancient sources from whence other countries have drawn their principles of the Law of Insurance, confines abandonment to these five cases, i. e. Capture, Shipwreck, Stranding, Arrest of Princes, or the entire loss of the things Insured. 2. Marshall 562. Here stranding, if the vessel be not destroyed, (and so perhaps it may in the French law,) is not a ground for abandonment. And it has been allowed on all hands that the doctrine has been carried already too far. How it came to be introduced is not satisfactorily accounted for; it is certainly a right never exercised, but with most manifest injustice to the insurers, and it is the most unfair and unequal principle ever introduced into contracts.

On the second question, there is some difficulty arising from the different opinions which have been expressed on the subject. But it appears from the English authorities to be well settled, that in no cases of unliquidated damages is interest recoverable; and although we have in some cases allowed interest to be given under the name of damages, we have never gone so far as to say that in cases of Insurance it was recoverable as a matter of right. Some obiter dicta may be found in our cases perhaps to that effect, but no decision directly on the point. To call the offer to pay the amount of the loss sustained a tender, is certainly not speaking technically. But the cases referred to, (Peake Nisi Prius Cases, 88, and 1 Campbell, 184,) are to be understood and may be reconciled by ibis view of the subject. When the jury are required by the assured to give interest by way of damages, it is certainly admissible for the insurer to reply that interest should not be allowed by way of damages, because an offer to pay what was actually due was made and refused: and such offer is considered analogous to a tender. One, certainly, claims with a bad grace from a jury that which he himself has refused to accept. It may be well said to him, if you had been content to take that which was justly due to you, the expenses and trouble of this suit might have been avoided; and such a consideration, I think, not without weight in assessing damages. We cannot then disturb the verdict on this ground. The motion must be dismissed.

Motion dismissetJ.  