
    *Loomis and Tillinghast against Shaw.
    
      Goods were insured from New York, to Havre, and a separate policy was also made on the profits. The vessel was captured and carried into London, and the goods libelled there. Pive-eighths of the goods were restored to the insured who received and appropriated them to their own use. The insured abandoned to the insurers on the policy on the profits, as for a total loss. The insured claimed and recovered an average loss of three-eighths only on the goods. It was held that they were entitled only to a partial loss of three-eighths on the profits.
    This was an action on a policy of insurance on the profits of goods laden on board the ship Favorite, on a voyage from New York to Havre. The ship and goods were captured by a British cruiser, and carried into London, and libelled in the court of admiralty there. Five-eighths of the goods were restored to the plaintiffs, and accepted by them, and appropriated to their own use ; and the remaining three-eighths were detained in court, but whether condemned or not did not appear. By the capture, the voyage to Havre was broken up, and none of the goods ever reached France. Under the policy on the cargo, the plaintiffs claimed and recovered an average loss of three-eighths only. They abandoned to the defendant, and the question on this policy was referred to referees, who reported in favor of the plaintiffs, as for a total loss. The point now submitted to the court, by consent, was whether the plaintiffs are entitled to a total or partial loss only, and the report was to be confirmed or modified accordingly.
    
      B. Livingston, for the plaintiff.
    
      Harison, for defendant.
   Badcliff, J.

delivered the opinion of the court. The plaintiffs are entitled to recover a partial loss only. Profits are necessarily incidental and subject to the final disposition of the goods on which they are expected to accrue. The plaintiffs in the present case have actually received five-eighths of the goods, and appropriated the proceeds to their own use. Whether they yielded any profit, or sold at a loss, does not appear; and it is not material, since the plaintiffs chose to accept them at London, and take the benefit of the market there. They are, therefore, at most, entitled to an average loss of three-eighths only.

*Let the report of the referees be reduced, and judgment be entered accordingly.()() 
      
      
        (a) Old note. See Tom v. Smith, (3 Caines, 245.) Mumford v. Hallett, (1 Johns. Rep. 433.)
     
      
      
        (b) See 1 Phil, on Ins. 122-126; 2 id. 226, et seq.; id. 364; and Abbott v. Sebor, infra, vol. 3, p. 39.
     