
    Leonard Smith and Others versus The Newburyport Marine Insurance Company.
    Of the reasonable time after receiving intelligence of a loss, within which the insured must abandon, to entitle him to recover for a total loss. [This depends on the facts; and when they are ascertained, it is a question of law. — Ed.]
    Case upon a policy of insurance, in which the plaintiffs caused themselves to be insured the sum of ten thousand dollars, on the cargo of the ship Hunter, from Newburyport to the Isle of France, and any ports or places in the East Indies, or elsewhere beyond the Cape of Good Hope, and at and from them, or either, of them, to her port of discharge in the United States. The plaintiffs declare upon a total loss, by the force and violence of the winds and waves.
    Upon the trial of this cause at the last April term at Ipswich, before Seioall, J., a verdict was found for the plaintiffs as for a total loss, subject to the opinion of the Court upon a case stated by the parties, in which it was agreed that if the Court should be of opinion that the plaintiffs were entitled to recover [ * 669 ] * for a total loss, the verdict should stand, and judgment be entered upon it; otherwise the damages as for a partial loss were to be assessed and reported by commissioners to be appointed by the Court, or named by the parties, and the verdict to be altered so as to conform to such report and judgment accordingly.
    The ship arrived with her cargo at the Cape of Good Hope, and there the supercargo sold nearly half the cargo, and was intending to proceed with the ship and the remainder of the cargo to the Isle of France, when a storm drove the ship on shore, where she was totally lost, a part of the remaining cargo damaged, and by that event the voyage was wholly broken up and lost. The plaintiffs received accounts of the loss by letters from the supercargo on the 21st of January, 1806, and further particulars of it on the 9th and 10th of February following, and on the 24th of the same February they received a full and distinct account of the nature and extent of it, with the necessary documents to prove it. The plaintiffs lived in the town of Newburyport, where the office of the defendants is kept, and the offer to abandon was made on the 10th of April following, which the defendants refused to accept; and the only question made was, whether the offer to abandon was made in such season as to bind the defendants.
    
      Prescott, for the plaintiffs,
    said he was not aware that any precise period had been fixed, within which the insured was bound to abandon. In the present case, the plaintiffs had no stronger inducement to abandon when they did it, than when they received the accounts of the loss. In the case of Livermore against these same defendants,  where the party had waited more than a month after notice of the loss before he abandoned, intelligence of a peace in Europe was received, a circumstance which appeared to have considerable weight with the Court in determining that he had lain by too long. The cases of Mitchell vs. Edie 
       and Allwood vs. Henkell 
      
      were also referred to, as showing that no definite period was fixed by the law within which the assured was bound to make his election to abandon.
    * Jackson, of counsel for the defendants,
    was stopped [ * 670 ] by the Court.
    
      
      
        Ante, vol. i. 264
    
    
      
      
        Marsh. 509
    
    
      
      
        Ibid. 512
    
   Parsons, C. J.,

observed, after stating the facts agreed, that the question reserved was simply whether the plaintiffs had, or had not, seasonably abandoned after the knowledge of the peril, so as to entitle them to recover a total loss. They had notice of the loss, and of the nature and extent of it, on the 24th of February ; they lived in the town where the defendants kept their office, but did not offer to abandon until forty-five days after notice of the loss was received ; and no reason is assigned for the delay.

The owner must abandon within a reasonable time after notice He shall not delay for the purposes of speculation, or wait for further intelligence to guide him in his speculations. What is a reasonable time must depend on facts. When the facts are agreed or found, it is a question of law. In the case at bar, the offer to abandon was delayed until the 10th of April. This delay, unaccounted for, is unreasonable ; and the Court are all of opinion that, in not offering to abandon sooner, the plaintiffs lost their right to abandon, and can recover for a partial loss only.

Let commissioners be appointed to liquidate the damages, and let t he cause stand over for their report.  