
    Israel Munson versus The New England Marine Insurance Company.
    When an abandonment is offered to underwriters by the assured, it is not necessary to produce evidence of the loss under oath.
    Where, by the terms of a policy of insurance, a loss is payable at a given time after notice of the loss, if, at the time of abandonment, the assured had a right to recover for a total loss, this right will not be affected by the credit given to the assurers in the payment of the loss, although, in the mean time, the loss has .ceased to be total.
    This action was brought to recover the value of the ship Aurora, belonging to Samuel Russell and Hamlet Fairchild, of New York, for whom, and as their agent, the plaintiff Munson procured her to be insured by the defendants at and from New York to the Havanna, and at and from thence to New York, the ship being valued at 9000 dollars, and insured for that sum. Any loss arising under the policy was to be paid in sixty days after proof and adjustment thereof. The policy was on ship and cargo, but the demand for loss,of cargo was struck out of the declaration, which alleged a total loss by capture.
    From the report of Parker, J., before whom this cause was tried at the last November term, in this county, it appears that the ship, on her homeward passage, and within a few hours’ sail of New York, was boarded, on the 25th of April, 1806, by an officer and men, from the Leander, Cambrian, and Driver, three British ships of war, cruising off the harbor of Neiv York, and was carried to Halifax, where she was libelled in the Vice-Admiralty Court of that place.
    
      [ * 89 ] * The vessel arrived at Halifax on the 7th day of May, and continued in the possession of the captors until the 9th day of June following, when a decree of restitution passed, and she was restored to Fairchild, one of the assured, who was also the master and part owner. On the 8th of May, Munson, by orders from Russell, one of the assured, for himself and Fairchild, abandoned the ship and cargo to the company, and, it is agreed, communicated to them all the information which said Munson was possessed of relative to the capture.
    [By copies of sundry letters on file in the case, it appears that on the first of May Russell wrote to Munson, stating, from the information of the pilot, who was on board the Aurora, the circumstances of the capture and destination for Halifax, to which the pilot had made oath ; requesting Munson to abandon the cargo to the underwriters ; promising to send the necessary vouchers in due season; and expressing doubts whether he should abandon the ship. On the 5th of May, Russell again wrote, and requested Munson to aban don all his interest, and that of the master, in the ship Aurora, to the underwriters from that day, cautioning him to execute the request in such manner as might be consistent with the law and custom of the place. And on the 21st of the same month, he again wrote, and enclosed a certified copy of a letter he had the day before received from the master at Halifax, with an affidavit of the same, and a request that it might be handed to the underwriters.]
    The ship afterwards arrived at New York, where neither the underwriters nor the assured chose to take possession of her as their property.
    The question was, whether the plaintiff should recover for a total, or a partial loss only. The case was considered by the judge to have been decided by that of Lee vs. Boardman, 
       wherein it was settled that an offer to abandon, during the existence of a total loss, fixes the right to recover the whole sum insured. But the Solicitor-General, who argued the cause for the defendants, having suggested that the case could be distinguished from the one referred [ *90 ] to, I. because, *at the time of the abandonment, there was no evidencé of the loss exhibited ; and, 2. because it appears, from the decree of restitution, that the ship was actually restored before payment of the loss became due, — a verdict was rendered for the whole sum at which the ship was valued, with interest ; and the judge reserved the case for the opinion of the Court, the defendants agreeing that the sum found by the verdict should be increased by adding interest to the time of judgment, unless a new trial should be granted.
    
      
      Dexter and Blake for the defendants.
    
      
      
        Ante, vol. iii. p. 238
    
   And now at this term the Solicitor-General, Davis, renewed and enforced the points suggested by him at the trial; after which the opinion of the Court was delivered, in substance, as follows, by

Parsons, C. J.

The jury having found a verdict for a total loss, the counsel for the defendants make two objections to it. The first is that, at the time of the abandonment, no evidence of the loss was exhibited. The capture took place on the 25th of April, 1806, and on the 1st of May following, one of the owners wrote the plaintiff an account of it, and stated that the intelligence was received by one of the pilots, who was on board the ship, and had been turned out by the captor. On the 5th of May, he again writes, directing the plaintiff, in consequence of the capture he had mentioned in his last, to abandon the ship and cargo, for him and his partner. On the 8th of May, Munson communicates these letters to the office, and makes the abandonment, according to the directions; and it appears from the report that the intelligence of the pilot was true, and that the ship and cargo arrived at Halifax, and were there libelled as prize, and were in custody of the Admiralty, when the abandonment was made.

In this case, it is our opinion that the evidence of the loss exhib ited was sufficient. It came from the pilot, who was present at the capture, and was correct. Nothing can be objected against it, but the want of the affidavit of the pilot, which it is not usual to send, and which he is not obliged by law to make. The master was a prisoner, and could make no protest, which is the usual evidence, when it can be obtained. No objection was made by the underwriters to the * sufficiency of the evidence, which [ * 91 J was afterwards fortified by a copy of a letter from the master at Halifax, containing a particular account of the capture, which was forwarded on the 21st of May to the underwriters.

The second objection is, that the loss was not payable, by the terms of the policy, until sixty days after notice of the loss, and that before that time the property was restored.

We do not think there was any weight in this objection.

The abandonment was made on the 8th of May, at which time the loss was total, and a right to recover for a total loss was vested in the assured ; and this right cannot be affected by the credit given to the assurers in the payment of the loss, whether that credit was long or short.

Judgment must be rendered according to the verdict.  