
    [Philadelphia,
    Tuesday, July 7, 1812.]
    B. and J. Bohlen against The Delaware Insurance Company.
    Although the assured does not elect to abandon upon receiving intelligence of the capture of his property, he may nevertheless abandon and recover as for a total loss, upon the event of its condemnation, at any distance of time from the capture.
    This was an action upon a policy for 5000 dollars on thirty casks of coffee valued at 5250 dollars in the brig Rising Sun, at and from Philadelphia to Tonnington, or Bremen if not blockaded; warranted American property to be proved in Philadelphia only, and not to abandon in case of capture until after sixty days’ detention, unless previously condemned.
    The brig sailed upon the voyage insured on the 25th September 1807, and was captured on the 7th of December by the French privateer Jena, and carried into Amsterdam. On the 21st March 1808, the plaintiffs received a letter from their correspondents at Amsterdam informing of the capture, and that they were busy in bringing forward every thing to obtain a release, but were fearful it would be decided by the council of prizes at Paris. On the 10th of September they received intelligence from the same source that both vessel and cargo had been condemned on the 8th of June by the council of prizes, and that an appeal had been entered. On the same day the plaintiffs duly abandoned, upon the ground of the condemnation, their being deprived of the property, and not being able to get it to the place of destination.
    The cause was tried before the Chief Justice at a Nisi Prius in February last, when upon making these and the formal proofs in the cause, it was agreed that a verdict should be entered for the plaintiffs for the sum of 5929 dol*lars 50 cents (being a total loss) subject to the opinion of the Court on the following points:
    1. Whether under the circumstances of the case the plaintiffs abandoned in due time.
    2. If they did not, then whether they are entitled to recover deducting the value of the spes reeuperandi.
    
    If the Court should be of opinion with the plaintiffs on either of these points, then the verdict to stand. If the Court should be of opinion with the defendants on both these points, then the verdict to be set aside, and a new trial granted.
    
      Sergeant and Ingersoll for the plaintiffs.
    The points reserved admit the interest and the loss, and that the condemnation has not falsified the warranty; they therefore bring before the Court the case of the capture of American property,followed by a condemnation of the whole, and appropriating it to some one in total exclusion of the original proprietors. It is in truth the case of an absolutely total loss, leaving no fragment of property in the owners.
    Upon this state of facts two questions are reserved. First, "Whether the plaintiffs abandoned in due time. Secondly, If not, whether they are entitled to recover, deducting the value of the spes recuperandi.
    
    
      First point. The case presents the peril of capture, operating upon the whole property insured, involving it all in one common jeopardy, taking it all out of the possession, power and control of the insured, and leaving him in the first instance no one right of an owner, but to prosecute a claim for its recovery. It presents also a subsequent condemnation postponing still further his chance, and increasing in a very great degree the hazard of the adventure. Upon this state of facts we contend, 1. That in such a case an abandonment may be made at any time while the loss continues total. 2. That even if the right to abandon upon the capture merely '"were waived by the delay, it was revived upon the condemnation.
    1. Upon this branch of the first question no rule has been established in Pennsylvania, nor is there any rule upon the subject clearly established in England; and it certainly deserves very serious consideration, as it may affect the interests generally of both the parties to the contract of insurance. Whether it be true as is stated by Park, that the doctrine of abandonment is coeval with the law of insurance, or as stated by Marshall, that it arose from the practice of introducing particular stipulations in the policy, it is certainly to be found in every code of commercial law, where insurance is known. It is equally certain that in all of them it is given as a privilege to the insured which he may exercise at his election, and that it is intended for his benefit, that he may, in case of necessity as Lord Mansfield expresses it, “ disentangle himself.” Goss v. Withers, 2 Burr. 697. While however they all agree in giving the assured the right in certain cases to abandon, and nearly agree as to the cases in which he may abandon, they differ as to the time within which he must exercise the right. In France it was and still continues to be a matter of positive and equitable regulation. In England the law is far from being systematic and settled. The first reported case upon the subject is that of Hartley v. Pringle, 3 Atk. 195, in the year 1744. There the term abandonment is not used, nor does it appear at what time the offer to relinquish was made ; but the Lord Chancellor says, “ when he is willing to relinquish his interest in the salvage, he ought to recover the whole money insured.” He puts the right to recover a total loss upon these two facts,—that nothing has come to the hands of the plaintiff in the action, and that it is uncertain whether he ever will receive any thing. From that time until Mitchell v. Edie, 1 D. & E. 608, in 1787, the eases that occurred turned principally upon two general questions ; first, what state of facts amounted to such a loss as gave the insured a right to abandon, and secondly, how far a right to abandon once existing, might be divested by circumstances occurring before an abandonment made. Such were Goss v. Withers, 2 Burr. 683, in 1758, and Milles v. Fletcher, Doug. 230, in 1779, in *both of which there had been a recapture before abandonment, but the voyage having been wholly defeated and lost, the abandonment was therefore held good; and such also was Hamilton v. Mendes, 2 Burr. 1198, in 1760, where Lord Mansfield limits the generality of the language he had used in Goss v. Withers, and lays down the distinction between the eases where a recapture devests, and where it does not devest the right to abandon. Still no rule was given as to the time within which an abandonment must be made. In the law of England it is expressly recognized by Park, that there was no limitation of time until Mitchell v. Edie; and this case being subsequent to the revolution, even if it applies to the present, is of no more authority here, than the ordinances of France or of Middleburgh. But that decision establishes no rule except for a case similarly circumstanced; and the judges have themselves confined their opinions to a case where a part of the property is saved, and is in the power of the owner or his agents previously appointed, or become so by adoption. It was in fact only the companion of Goss v. Withers and Milles v. Fletcher. Those cases had decided, that although there was a recapture; yet if the voyage was lost, or the greater part of the goods destroyed, the insured might abandon what was saved. This case decides, that if he did not abandon, but received them and treated them as his own, he should not afterwards abandon. It therefore furnished no rule for a case, where the totality of the loss continued to the time of abandonment; and yet it is upon this case, and this only, that the rule for which the defendants contend, has rested for its foundation. Upon the same ground with Mitchell v. Edie stands Allwood v. Henckle, Park 172, in 1795, and which is usually cited as corroborating the rule. But that also was a case in which a part of the property was placed in safety, and the insured took to it. In both, the insured received an indemnity for the loss he had sustained by the perils in the policy, but not for the loss occasioned by the misconduct of his agent, into whose hands the property saved had been placed, after being freed from those perils, and whose acts he had adopted with full knowledge. were cases in which of the had been rescued *from the common jeopardy in which all had been once involved, and in which the are constantly referring to this fact as the basis of the rule. It may therefore be said with great safety, that no rule has been established in England for a case like the present, where the loss being total, and the property taken wholly out of the hands and control of the assured and his agents, he has neglected to abandon at first, but has afterwards abandoned while the loss continued total. Kelly v. Walton, 2 Campb. 155, is not at all to the contrary ; for that was the case of an embargo merely, in which the owner had his property entire and at his own control, for every purpose but the voyage. Indeed it cannot be doubted that Sergeant Marshall, when he wrote his treatise upon insurance, had in his mind a distinction between such a ease as the present, and one in which an instant abandonment is necessary ; because he asserts a right to abandon in case of capture, at any time while the ship is under detention. 2 Mor. 563 a, 565.
    If we resort to the usages and laws of other commercial nations, what do we find"? By the ordinances of France there is a limitatioU indeed, not such as is here contended for, scarcely allowing to the assured a moment for deliberation, but a period of from six weeks to two years, according to circumstances; and this is not so much a limitation of the right, as it is of the action of abandonment, the assured still having a remedy by an action of average as it is called, after he has lost his right to abandon. 2 Emerigon 176, 178.
    But we may with more propriety resort to decisions of our sister states, whose commerce,in all respects situated like our own, must furnish the same description of cases, subject to • the same considerations, and therefore affording a better guide than the laws either of England or Erauce. Circumstances have indeed justified a peculiar rule for America, in consequence of her neutrality. To an English subject, capture by an enemy approaches so nearly to a certain loss, that it might be required of him to decide instantly. But a neutral has always a right to believe that his property will be ultimately restored to him. Until the case of Rhinelander v. The Insurance Company of Pennsylvania, 4 Cranch 29, in 1807, he did not know that he was entitled to abandon uPon capture j and *from that day to this, the underwriters, who are now insisting upon a prompt abandonment, have by the instrumentality of special clauses, one of which is in this policy, constantly exerted themselves to postpone, instead of accelerating this step. They have therefore expressed their sentiment in favor of a late abandonment. In New York the rule is perfectly settled, that the assured may abandon at any time while the loss continues total, provided it be such a loss as takes the property away from him. Earl v. Shaw, 1 Johns. Ca. 313 ; Steinbach v. Columbian Insurance Company, 2 Caines 132; Smith v. Steinbach, 2 Caines in Err. 158 ; Lawrence v. Sebor, 2 Caines 203 ; all are to this point. It is true that in Tom v. Smith, 3 Caines 245, Judge Livingston, being pressed with the New York rule in a case to which it did not properly apply, finds fault with it, and says that it is in contradiction to the English rule; but he admits it to be established where the property is out of the hands of the assured, and in Suydam v. Marine Insurance Company, 1 Johns. 191, he states the rule in the same way. In Massachusetts this rule is also established. 2 Condy’s Marsh. 561. So that in no country is there a contrary rule, and in this there is a more perfect coincidence upon the subject between decisions of courts, the practice of underwriters, and the interest of trade. The only objections that are urged against it, are that in this way the insured may speculate upon events,- and that he deprives the underwriter of an opportunity to take measures for the security of the property. To these objections there is an answer already prepared in a note to the appendix to the second volume of the American Review, page 154, note 140. 
       The insured is entitled to the profits, because they must be earned by his capital and labor; and his own interest is a sufficient pledge that he will make due exertions to recover the property. If he does not, that will constitute a distinct objection to his claim. As to the underwriter, he never should gain by the misfortunes of the assured; the contract *is a contract of indemnity, non versatur in lucro. No rule but that for which we contend, will give a fair indemnity, or will not oblige the insured to turn over to the underwriter the chance of a market, and to break up the voyage upon every detention. And what will be the operation of the rule? The insured will honestly exert himself for the recovery, and when there is no hope of success, turn over the chance that is left, in nowise impaired by him. He will be in most cases a better agent, more intelligent, and more active ; he will gain no more than an indemnity ; and the underwriter will be spared the necessity of becoming a merchant'in every case of capture, will not be compelled to pay in the first instance, and incase of restoration before abandonment, will be wholly discharged from a total loss. In fine the existence of positive regulations on the continent of Europe, is conclusive to show, that independent of them, the contract of insurance implies an indefinite right to abandon during the continuance of the loss.
    2. But if by delay after capture he has waived his right to abandon for that cause, the condemnation is a new crisis, and has revived it. The election to be beneficial to the assured, should recur upon every important event increasing the hazard of the property. By condemnation the presumption of recovery is gone. A new proceeding is to be instituted, new expenses to be incurred; the assured has a right to say, he will carry it no further. In support of this position is a dictum of Judge Livingston in Suydam v. The Marine Insurance Company, 1 Johns. 191, the case of M’Kenzie v. Shedden, 2 Campb. 431, and Kelly v. Walton, 2 Campb. 155. The position is indeed conclusively established by all those decisions which show an abandonment to be unnecessary in' the case of a final condemnation; Abel v. Potts, 3 Esp. 242; Gracie v. New York Insurance Company, 8 Johns. 237; for if the right of recovery is not absolutely lost by delay in the first instance, and these cases show that it is not, every new disaster must be a new ground of abandonment.
    
      
      Secondly. The plaintiffs may, at all events, recover to the extent of their damage, by deducting from a total loss the *va,5-ue °f the spes recuperandi, which they did not abandon in due time. Eor this there is in the first place, the binding authority of Watson v. Insurance Company of North America, 1 Binn. 47. The idea of valuing the spes was at the date of that case new; the court were driven into it, to avoid the monstrous hardship of denying all sorts of indemnity to the assured; but it is now the law of the land. The decision has entered into the contract of these very parties. It may be considered as a part of the basis upon which the premium has been settled. In addition to this, the principle of the case is fortified by several decisions the analogy of which is extremely obvious—such in the first place as Story v. Strettell, 1 Dall. 10; M’Masters v. Shoolbred, 1 Esp. 237; and Berens v. Rucker, 1 W. Black. 313, in which the assured recovered from the underwriters, the amount of a bona fide compromise with captors, recaptors, and the like; and the propriety of the compromise could, be ascertained only by valuing the hope of recovery. So is the case of ransom, in which the prize is identically the spes recuperandi. So is the case of an action against the sheriff for an escape from mesne process, and against an attorney for neglect, in which the measure of damages is the hope of recovering the debt. Russel v. Palmer, 2 Wls. 375. In all ■these cases the jury must, by the lights afforded to them, value the spes, or in other words must apply the rule; and the only solid objection ever urged against Watson’s case, is the difficulty of its practical application. In Barker v. Atkins, according to a newspaper report inserted in 2 Amer. Review, 161, App. Lord Ellenborough expressly told the jury to value the spes in a case of capture, where there had been no seasonable abandonment.
    
      Condy and Hawle for the defendants.
    We contend that on both points reserved, the judgment of the Court should be with the defendants.
    1. The plaintiffs have no right to a total loss, because to entitle them to this, there must be an abandonment within a reasonable and short time after well authenticated intelligence of the loss; and in the preseut case the abandonment was not made until the expiration of nearly six months after that event.
    ^is ffues,:5on 5s considered without reference to particular authorities, but only upon general principles, and the nature and reason of abandonment, it is extremely clear. When the contract of insurance may be supposed. to have had little that was artificial about it, that is to say, in its earliest day, only two kinds of losses were known to it, and both of them real and substantial; an actual destruction of the whole, and an actual injury to or deprivation of a part. In this stage of the contract, abandonment probably was not known, because it was not necessary; and the circumstances which at length introduced it, for the advantage of the assured, introduced along with it such qualifications as made it a comparatively safe practice for underwriters. Losses purely artificial, or technical, were admitted as a ground of claim, because in some eases they were as ruinous to an adventure, as an actual loss; but as this was not always the case, and as the property in such instances still existed, a prerequisite to the right of claim, was the surrender of the property. A surrender, however, at the end of a fruitless pursuit, when difficulties had become confirmed by time, and embarrassments multiplied by bad management, was of little use to the underwriter; and hence another qualification of this right to recover for an artificial loss, was that the surrender of the property should be prompt. Wherever the subject of capture, detention, or any such peril is spoken of as a loss, it is accordingly without exception spoken of as a loss made complete by abandonment; and ■wherever abandonment is noticed, it is as universally connected with the circumstance of reasonable time. That illustrations of this position are not to be found in any remote age of the legal history of'Great Britain, is of no moment, because the whole .system of insurance in that island is but of modern date; but wherever the subject is spoken of, illustrations are found, and those neither few in number, nor of light authority. Park 6th ed. 109, 110, 192, 239, 240, note (a); 2 Marshall, 589, 590, 836. So in other codes. Boccus 119, note 54, 195; 2 Valin. 96,117. It cannot be contended, that in any case capture is stated to be a loss, before the assured has made his election to consider it so. No instance can be found in our system of law, in which a party entitled to an election affecting a third person, is not bound to make it in a reasonable time, and to communicate ^proper notice of it; and certainly the law of insurance does not record a case, in which mere notice without abandonment, has ever been deemed of the least importance. It must be such notice as justifies them in looking over the property, in appointing their own agents, in prosecuting or deserting a claim for restitution, a notice in fine by abandonment. When otherwise is the insurer’s liability to be ascertained, when is he to know whether he has earned his premium, what is to prevent the assured from keeping the contract for ever open? The underwriter is in fact a surety. He agrees to guarantee the assured against all technical as well as actual losses, upon the condition that as to the former, which may be increased by agency, or may be wholly removed by it, there shall be notice. When has notice in such a case been omitted, without exonerating the surety?
    Thus it stands upon general grounds. Upon authority it is equally plain. In Pennsylvania, there is the case of Bell v. Beveridge, 4 Dall. 272, 1 Binn. 52, in notis, precisely in point; for there, in a case of detention by the French government, and a complete conversion of the property, the Court say that average loss is out of the question, and that the plaintiff’s right depends wholly upon his abandonment being made in due time. In the case of Calbraith v. Gracie, 2 Marsh. 599, b, we have Judge Washington’s opinion to the same point. In Livermore v. The Newburyport Insurance Company, 1 Mass. Rep. 274, two judges of the Supreme Court of Massachusetts, against a third, assert the same doctrine; and long since the case of Mitchell v. Edie, in Barker v. Blakes, 9 East 282, a case of blockade, where the whole property suffered the same peril, the King’s Bench adhere to the old and salutary principle of reasonable time. The French law, beyond doubt asserts the rule by fixing a precise time in all cases, after which no abandonment shall be received. What is this but the same principle which in England, and in this state, has fixed a reasonable time ? The rule here is better, but the origin is the same. In no part of the world then but the state of New York, has the plaintiff's rule received any sanction ; and that sanction originates in the case of Earl v. Shaw, where, whatever may be the true rule, all will agree the reasons of the court are bad, where there apPears t° have been no argument upon the point, and where the decision of this question was not at all necessary to the cause. It stole imperceptibly into that code, and maintained its ground in all subsequent cases simply by the stare decisis. It has however more than once been reprobated by an excellent judge of commercial law, Judge Livingston, who was counsel in the cause in which that rule was first asserted; and well does it deserve his reproach, if it be considered that it makes an underwriter answer for fire, war, theft, and a thousand other risks, at the distance of ten years from the subscription of the policy, and enables the assured rashly and wantonly to incumber his insurer with an immense expense in the prosecution of the most absurd and indefensible claim that can be imagined. Nay, since the assured is not bound to claim or appeal in ease of capture and condemnation, Tyson v. Gurney, 3 D. & E. 477, it enables him to pursue the property while it is convenient to him, and to desert it at the most interesting stage of the pursuit, in just such a manner as to prevent the underwriter from having time to take it up.
    If the abandonment is gone by neglect after the capture, no subsequent event can revive it, or indeed the rule is useless; for upon what conceivable reason can the right be taken away, and afterwards permitted to revive? It is the protection of the underwriter that lies at the root of the doctrine. How is he protected by denying the right now, and confessing it to-morrow ? A condemnation is however nothing per se. It is but a consummation of the original capture ; and unless it is final, it no further devests the property than the capture itself.
    2. There • is then no ground but the spes recuperandi; a notion started suddenly in the case referred to, in which the judges did not coincide, which has been publicly repudiated by the Supreme Court of New York, in Gracie v. The New York Insurance Company, and which has been a theme of perpetual reproach by the bar of Pennsylvania, since the hour it was promulgated. What is to be valued ? The chance that the French emperor may restore. Who is to value it? A jury who have no access to the means of learning his actual relations with, or disposition toward this country. By *what evidence? Newspaper speculations, and conjectures of the most idle kind. It is not after this manner that the rights of individuals are to be settled in a court of justice. It is as shocking to every man’s sense of right, as it is new in the law of insurance. As it is without precedent to authorize it, so is it without reason to countenance it. It requires but the slightest investigation to detect its mischief, and to show that it in the first place displaces abandonment from our system of insurance, that it enables a jury to make underwriters pay for the property they have insured, without getting it or getting a right to it, and-that it introduces a thing never before heard of, a technical partial loss in consequence of not abandoning, made out of what would have been a technical total loss in case of abandonment. If the cases which are supposed to be analogous to it are considered, they will be found without exception to be cases in which the loss was not metaphysical but actual, and where its extent could be ascertained by evidence, such as a jury could understand and apply, and such as a party can always obtain.
    
      
       The underwriters preferred paying a total loss, and taking a cession from the plaintiffs which they agreed to make, rather than permit a jury to value and deduct the spes recuperandi, by which it would be reserved to the plaintiffs.
    
    
      
      
         For a valuable translation of the Napoleon Code de Commerce, made more valuable by a body of learned notes, one of which is above referred to, the public it is understood are indebted to Peter Stephen Duponceau, esquire, of this city, a gentleman whose various learning has in more than one instance reflected lustre upon the profession of which he is a member.
    
   Til&hman C. J.

was of opinion that the judgment should be entered for the plaintiffs. His reasons are given in the next succeeding case.

Yeates J.

The facts out of which the law arises in the present case have been already stated.

The defendants resist the payment of the loss on the ground that the abandonment of the coffee insured was not made to them in a reasonable time. The brig was captured by the French privateer Jena on the 7th December 1807, and the abandonment was not made until the 10th September following; that is, in the course of nine months and three days after the capture. The plaintiffs insist that the first information which they received of judicial proceedings had against the brig and her cargo, was by a letter from the widow Yanween and Son, dated at Amsterdam 27th June 1808, which conveyed to them intelligence of the condemnation in the imperial council of prizes at Paris on the 8th of the same month, and that the abandonment was made immediately after the receipt of that letter. They have con-that the of a neutral as a belligerent is a total loss, which entitles the assured in common cases to abandon, according to the decision in Rhinelander v. Insurance Company of Pennsylvania, 4 Cranch 29, yet this does not preclude the assured from abandoning upon a condemnation of the property, which is a new substantive ground of cession; and that in this instance, the clause in the policy, introduced for the benefit of the insurers, that the insured should not abandon in case of capture until after sixty days’ detention, unless previously condemned, takes the plaintiffs out of the general rule, and shows the clear understanding of the contracting parties to have been, that the abandonment should not be hastened but postponed.

The doctrine of abandonment rests on the broad basis of natural equity and moral honesty. Insurance is a contract of indemnity, and the insured ought to recover no more than the amount of the loss actually sustained. If he be allowed to recover for a total loss, and yet retain the property saved, he would derive a benefit in direct opposition to the spirit of his insurance. Abandonment necessarily presupposes that the whole property is not lost; for it is impossible to cede or abandon that which does not exist. It is agreed on all hands, that it is at the election of the insured, whether they will abandon or not; and the question here is, whether they may not abandon at any time, while the loss continues total ?

This question has been determined in the affirmative in several eases, in the Supreme Court of New York. Earl v. Show (in 1800), 1 Johns. Cas. 317; Roget v. Thurston (in 1801), 2 Johns. Ca., 248; Bordes v. Hallet (in 1803), 1 Caines 449 ; Lawrence v. Sebor (in 1804), 2 Caines 207, 208; Steinbach v. Columbian Insurance Company (in 1804), 2 Caines 132, which was affirmed on error brought in 1805; 2 Caines in Error 161, 174; Tom v. Smith (in 1805), 3 Caines 245 ; Suydam and Wyckoff v. Marine Insurance Company (in 1806), 1 Johns. 191; and in Livermore v. Newburyport Insurance Company (in 1804), 1 Massa. T. R. 281, Dana Chief Justice admits it to be generally true, that the right of the insured to abandon remains while the loss continues total; but it supposes that no alteration has taken place in the circumstances of the case.

I accede to the authority of these cases so far as they relate to the point before us, and on the fullest reflection am *of opinion that the determinations comport with the true measure of justice between the contracting parties, according to the terms of their agreement, and will best conduce to the interests of commerce in general. I cannot bring my mind to assent to the defendants’ positions, that the plaintiffs ought not to recover for a total loss, because there was no seasonable abandonment, nor for a partial loss, because the loss was total in its nature ; or in other words, upon a fair contract of indemnity, where the insurers have received their stipulated premium of ten per cent., that the gi’eater the loss the insured should suffer, the less the insurers should pay, not even a single cent.

The grounds on winch the British adjudications in matters of abandonment proceed, in my idea are, that where a loss technically total has occurred, but which by subsequent events has become partial, the insured shall not, by lying by and abandoning after the nature of the loss has been changed, and after having taken the chance of a market, recover for a total loss. He shall in such case be compensated according to the extent of the injury received from one of the perils expressed in the policy; but will not be permitted by an abandonment then made, to convert that which is at the time a partial into a total loss, merely because it had once technically subsisted. The principle does not hold, where the loss remains actually total at the time of the abandonment, and continues so to the very period of commencing the action. I wholly agree with the remarks of Chancellor Lansing in Smith v. Steinbach, 2 Caines in Error 173. “ The doctrine of abandonment is only adapted to the case of a partial loss, connected with a total one by the operation of law. It is expressly founded on the consideration, that the subject insured, though not totally annihilated, (for then nothing would be left for abandonment) is so much deteriorated by the perils insured against, as not to make it worth holding to the insured. It is a doctrine calculated to distinguish between average and technical total loss, as far as respects the insurer, not to create new duties or impose new burthens on him, but to protect him from practices to which he might be exposed, by speculations on the state of the market or other contingencies, which may influence the value of the property insured.

*1 cannot discover in what particular insurers are prejudiced by an abandonment, while the loss continues total. Mercantile law founded on the highest equity imposes no useless duties. The insured is authorized by the terms of the policy to prosecute for the recovery of the property. If he succeeds, it will go in diminution of the loss ; if he miscarries, he has acted only according to his authority, and as the loss is then total, the insurer is responsible for the full amount. The judicious compiler of note (140) in 4 Walsh’s American Review, appendix 155, has justly remarked, that as to the danger that the assured will not make due exertions to recover the property, his interest is thought to be a sufficient security in that respect. For if there is but little or no hope, it is to be presumed, that he will naturally abandon as soon as possible, and then the insurer may act as he pleases ; if on the contrary there is a prospect not only of recovery but of gain, he will exert himself to the utmost to attain the object. Besides, there is nothing to prevent the insurer, who has an eventual interest in the property, from making exertions on his side. His right to do so cannot be denied. And after all, if the insured by his own misconduct or neglect, should prevent the property from being finally recovered, the underwriter may on that very ground refuse to accept the abandonment, and in an action for a partial loss the court will consider as saved, what might have been so but for the default of the insured.

It is sufficiently obvious that an individual merchant who plans his voyage, possesses more effectual means of prosecuting his claim with success upon a capture, than any body of underwriters, who cannot be supposed to have agents on the spot to superintend their multiplied concerns. This we well know, that insurers uniformly refuse to receive abandonments on the slightest pretences, and the clause in the policy under consideration, that the insured should not abandon in case of capture, until sixty days after detention, unless previously condemned, abundantly shows the sense of the company, when they underwrote the policy.

In every light in which I have been able to view this case, I am of opinion that judgment should be entered for the plaintiffs for a total loss.

'"Brackenridge J.

was also of opinion that judgment should be so entered, and gave his reasons in the succeeding case.

Judgment for plaintiffs.  