
    David Murray versus Crowell Hatch.
    Insurance was upon a ship, her cargo, and freight, against a toted loss only. The ship was cast ashore, the cargo was saved, and the vessel afterwards got off and carried into a safe harbor; where the master, not having funds to repair her, which, however, might have been done at less than half her value, as agreed in the policy, sold her and the cargo, to defray the salvage and expenses incurred in attempts to preserve and secure her. It was held, that the assured was not entitled to recover upon the policy.
    This was an action on a policy of insurance, effected in the office of Abraham Touro, dated May 19th, 1801, on one half the schooner Betsey, her cargo and freight, from Grenada to Wiscasset, one thousand dollars on the vessel, five hundred dollars on the cargo, and five hundred dollars on the freight; — the vessel valued at four thousand dollars. The policy was in the usual form, except that at the bottom was a memorandum in these words: “ This risk is against a total loss only, warranted safe the 12th day of April last, in Lat. 29° — Long. 65° 10'.” The defendant subscribed five hundred dollars.
    The action was tried upon the general issue, May teim 1808, before Thatcher, J. [ * 466 ] * At the trial, the defendant’s subscription was admit ted, and the plaintiff’s interest in the vessel and cargo was not denied. It was also proved that said schooner, on the 15th of April, 1801, being on the voyage insured, was, by storms and the violence of the winds and waves, driven on shore on the Island of Bermudas, and so damaged as not to be worth repairing , that it would have cost fifteen hundred dollars to repair her; and that, the master not having funds for that purpose, it became necessary to sell the vessel and cargo, to pay the salvage and expenses incurred in attempts to preserve and secure her; that the vessel, and all that was saved from her and the cargo, after due measures were taken by the master, were accordingly sold at public auction, on the 28th of April, for the benefit of the concerned ; and after all expenses were deducted from the proceeds of the sale, a balance remained of about four hundred dollars, which the master brought home, and accounted for the same with the owners.
    The plaintiff’s counsel, to prove notice to the defendant of the loss, and an abandonment of the vessel and cargo to him and the other underwriters, read to the jury the deposition of Janies Andrews, which was all the proof tie offered to that point; and on this evidence he rested the cause.
    [As the plaintiff’s counsel, in the argument of the cause at the bar, did not insist that there was sufficient evidence of an abandonment, but contended that no abandonment was necessary in the case upon the other facts proved, it is perhaps unnecessary to state the evidence that was offered to that point at the trial.]
    The counsel for the defendant offered to read to the jury sundry depositions, to prove that, at the time of subscribing ttie policy, it was expressly agreed by the defendant and the said Andrews, the agent of the plaintiff, that the said policy should be considered as against a total loss in the natural sense of the words only; so that, if any part of said vessel or cargo should be saved, the underwriters should not be considered as liable for any loss. But the [ * 467 ] judge who sat * in the trial of the cause, decided that such proof could not be admitted to explain the meaning of the words “ total loss,” contained in the memorandum in said policy.
    The counsel for the defendant then contended, that if paroi proof could not be admitted for the purpose of explaining said words, still the words so used in said policy, must oe presumed to mean a total loss in the natural sense of the words, and not a loss constructively total only. But the judge delivered as his opinion to the jury, that the loss as proved was a loss within the meaning of the policy, and of said memorandum.
    The counsel for the defendant also contended and urged that the plaintiff could not maintain his action, without proof of an abandonment of the vessel and cargo to the defendant and the other underwriters, and that no sufficient evidence thereof had been produced. But the judge instructed the jury, that the notice of the loss by Andrews was in this case equivalent to an abandonment, and entitled the plaintiff, on this ground, to a verdict in his favor ; and the jury accordingly found a verdict for the plaintiff.
    The defendant’s counsel filed exceptions to all the said opinions and directions of the jud'>c, upon which exceptions the cause has been continued to thi: v ¿m, having been argued at the last March term in Suffolk, before the Justices Sedgwick, Sewall, and Thatcher, (the chief justice and Parker, J., having been of counsel in the cause before they came upon the bench,) by the solicitor-general [Vaeis] for the plaintiff, and Charming for the defendant.
    Channing, in support of the exceptions, contended, 1. That the expression total loss, in questions of insurance, when used as descriptive' oi a peril or risk assumed by underwriters, is always understood as intending a natural and absolute loss of the thing insured. The right to claim as for a total loss, in common cases, arises from the act of the assured, when he has a legal right to abaiidon, and avails himself of that right in due time and such a las/s is constructively or technically a total loss, although a part, or perhaps eventually the whole, of the property is saved, ijtnd in a state * to be recovered. This distinction runs [ * 468 ] .’through the books.  The true construction of this contract is, that it was conditional, that the assured was to make a demand under it in no event, unless there was an absolute and natural total loss.
    2. If such is not the necessary construction of the phrase in question, it was still competent to the defendant to show by evidence the usage of merchants, and especially the actual understanding and agreement of the parties, in explanation of an ambiguity in a paroi contract, as the present is. The defendant has authority, from the exceptions allowed by the judge, to say that the evidence rejected at the trial would have established the fact of the real intention of the parties in making the contract being as he now contends it to be. The sole reason that paroi evidence is not received to explain written contracts is, to guard against fraud. But if the real meaning of the parties to a contract can be obtained, the court will always receive and be glad of it.  The after-conduct of a party to a contract has been received in evidence, to explain his intentions.  It is true that, by the statute of frauds, certain contracts must be in writing; yet where the party admits the existence of the contract,, the court will enforce it.  The decisions that paroi testimony is not to be received to explain written contracts, independently of the statute of frauds, are of late date, and not easily supported on principles of law. And they apply with the least force to instruments so loosely drawn as policies of insurance. The case of Bates vs Grabham 
       is a stronger case than that before the Court, where the evidence received went, not to explain, but directly to contradict, the words of the policy, in the most material part, — the description of the risk.
    3. Here was no abandonment, which being the act of the party, and necessary in every case of this kind, he ought .to be held strictly to the proof of it; and whatever its form, it must be explicit.
    [ * 469 ] *The solicitor-general argued, 1. That the legal meaning of the words total loss, as here used, cannot be imited or explained by paroi testimony, or by any agreement of the parties not expressed in the policy. The import of the phrase must forever be a question of law, and the judge correctly refused to admit any evidence, whether oral or written, not contained in the policy.  Thus the meaning of the common memorandum, in EngV lish and American policies, has always been considered a question! of law, and has never been permitted to be explained by the opin ¡ ions or testimony of witnesses, except where the construction re • lated to the usage of trade. In such cases, the memorandum, as well as the policy itself, is controlled by a particular usage or custom.  A written paper of instructions, folded up in the policy, and presented to the underwriter, or even wafered to the policy, but not making a part of it, cannot be admitted to control the policy, or to affect its interpretation. 
    
    2. These words “ total loss ” do not necessarily import a natural total loss only, but comprehend both a natural and constructive total loss. This is the definition given of the words by Marshall; 
       in addition to which, it is an undisputed principle of law, that a policy of insurance is to be construed largely for the benefit of trade, and of the assured ;  and that in the construction of deeds, and of all written contracts, the exception controls the instrument, as far as the words of it go, but no further. 
       The construction contended for by the defendant is repugnant to both the positions just stated, and to the definition of the terms, as given by the latest and best writers on the subject, and goes to restrict the rights of the assured, by rejecting one half of the technical meaning of those terms.
    But, 3. If the words are to be restrained to a natural total loss, it is insisted that the facts in this case show such a loss in effect, and therefore the plaintiff had no occasion to abandon, in order to entitle himself to recover for a total loss. * The [ * 470 ] freight was absolutely lost, because the delivery of the cargo at the port of destination never took place, but was prevented by a peril insured against. If the ship cannot perform her voyage, there is a total loss of the freight, and the assured is not to wait until a ship can be obtained. 
    
    The loss of the vessel was total by stranding, and consequent shipwreck. She was so damaged as to be not worth repairing; and although it is stated in the case that it would cost 1500 dollars to repair her, it also appears that the master had no funds, which he could apply to that purpose. This, then, was a natural total loss by stranding and shipwreck. The vessel ceased to exist in its original form; the hull remained ; but the vessel, which was the subject of the insurance, was so broken, disjointed, and otherwise damaged, “ that it no longer existed in its original nature and essence.”  As to the cargo, the loss was a natural total loss by the wreck of the vessel. No other vessel could be procured to carry the cargo to the port of destination. Whenever this happens, the loss is total. 
    
    Further, the loss of the vessel, cargo, and freight, became a natural total loss, in consequence of the sale of the vessel and cargo at Bermudas. The sale arose from a necessity occasioned by a peril insured against, and the case also finds that due measures were taken by the master. By this necessary and bond fide sale, the property became wholly changed, and there was nothing left of the original subject of insurance, for the plaintiff to abandon.  This principle was recognized in the case of Oliver vs. N. P. Insurance Company;  but in that case, the sale being at the instigation of the master, who was also a part owner, and the purchaser also, it was held that he purchased for the benefit of the insured, if they chose to so consider it. But in the case at bar, the sale was necessary from the shipwreck, was in all respects conformable to law, "and to a stranger for a valuable consideration. The tri[*471 ] fling salvage brought home *by the master, and delivered to the plaintiff, is held by the latter for the use of the underwriters, when they demand it; and they may at any time compel the payment of it by action. When the final event was known to the plaintiff, the vessel and cargo did not exist. Abandonment presupposes some part of the thing insured to remain ; it presupposes a technical or constructive total loss.
    The action stood for consideration until this term and now the opinion of the Court was delivered by
    
      
       1 D. & E. 608, Mitchell vs. Eddie. — Marsh. 509, S. C. — 7 East’s Rep. 38, Anderson vs. Royal Exchange Ass. Company. — 2 Burr. 683, Goss vs. Withers. — Marsh, 143, Mason vs. .Skurray.— Park, 116, S. C. — Marsh. 44, Cocking vs. Frazer.— Park. 114, S. C.
      
    
    
      
      
         Lilly & Al. vs. Ewer, Doug. 72.
    
    
      
      
        Cowp. 819, Cook vs. Booth.
      
    
    
      
      
        Sugden, 67.
    
    
      
      
        Salk. 444. — Marsh. 247, S. C. — See also 1 Dall. Rep. 193, 424.—2 Dall 171, 173.
    
    
      
      
        Doug. 13, in notis, Pawson vs. Barnevelt.
      
    
    
      
      
        Marsh. B. 1, c. 6, § 3.
    
    
      
      
        Marsh. 182, 252.
    
    
      
       Page 414.
    
    
      
      
        Ibid. 164.
    
    
      
      
        Ibid. 146.
    
    
      
      
        Marsh. 193, 506.
    
    
      
      
        Marsh. 502. — 2 Emeri. 580. — 2 N. Y. Cases in Error, 324.
    
    
      
      
        Marsh. 505, &c.
      
    
    
      
       3 Mass. Rep. 565, Storer vs. Gray.
      
    
    
      
       3 Mass. Rep. 37.
    
   Sewall, J.

This is an action upon a policy of insurance, dated May 19th, 1801, underwritten by the defendant, to insure for the plaintiff the sum of 1000 dollars upon one half of the schooner Betsey, her cargo and freight, from Grenada to Wiscasset; vessel valued at 4000 dollars, and half the insurance being on the vessel, one quarter on the cargo, and one quarter on the freight.

The plaintiff demands a total loss, and avers that on the 15th of April, 1801, the said schooner was, by violent gales, &c., stranded upon the Island of Bermudas, was there wrecked and totally lost, and with her cargo and freight became of no value ; of which no tice was given, and proof made November 10th, 1801.

After a trial upon the general issue, a verdict was found for the plaintiff; and the case is brought before us by exceptions, filed for the defendant, to the proceedings at the trial.

By these exceptions several questions are made, which have been fully argued, and have been considered by three of the justices of this Court, the chief justice and Justice Parker not sitting in the case. In the opinion which I shall now deliver, Justice Sedgwick and Justice Thatcher concur with me.

The first and principal question, considered in the argument, respects the constructive effect of a memorandum inserted in the policy in these words: “ This risk is against a total loss only.' What did the parties intend by this restriction ? and may their intentions be explained by parol evidence *of [472 ] a conversation between the insurance broker and the agent for the plaintiff, when the policy was effected ? The evidence at the trial is also referred to us; and whether a total loss is proved, in the sense of the parties to this policy is the third question to be decided.

The memorandum in question is a restriction, to some purpose, in every event insured against; and the insurer is in no case liable, unless a total loss is proved. Words precisely similar have not been employed in any policy, which has become the subject of a judicial decision; none was cited in the argument, or has been found since. But what is a total loss in the sense of this memorandum may be understood, we apprehend, by considering the import and effect of exceptions and warranties against particular averages and partial losses. A memorandum to this purpose, respecting corn and certain articles perishable by their own nature, or liable to particular injuries at sea, is inserted in almost all policies, and is so much a part of the usual form of insurance, as to obtain the name of the common memorandum. This, it is said, renders the policy, as to the excepted articles, an insurance against that sort of misfortune, which is considered as amounting to a total loss; and in the cases thus provided for, the insurance is against a total loss only. It seems, therefore, to be but a change of terms, to say that an insurance against a total loss only, or taking the risk of a total loss only, is equivalent to an insurance, with an exception of partial or average loss, or with a warranty against them on the part of the insured ; and by considering the effect of these, as settled by several judicial decisions, we shall determine, upon legal authority, the constructive effect of the memorandum in question in the case at bar. With this view, I shall state a decision made by Lord Hardwicke, in a case of insurance, before the common memorandum was introduced ; for the purpose of comparing it with several subsequent decisions m cases otherwise similar, where the effect of the common memorandum was fully considered.

* In the case of Boyfield vs. Brown, the insur- [*473] anee was upon a cargo of corn, without any memorandum against average or partial losses. The vessel arrived with her cargo at the port of destination; but the corn was in a damaged state, and so deteriorated as to sell for less than half the amount oi the freight due upon it. This case was thought to be within the usage of deducting the freight, when the salvage exceeds it; and Lord Hardwicke directed a verdict for a total loss, because the freight exceeded the salvage.

In Mason vs. Skurray, decided by Lord Mansfield, the insurance being upon a cargo of, pease, was limited by the common memorandum. The pease arrived, but so much damaged in the. voyage as to produce only about one fourth of the amount of the freight; yet the assured could not recover as for a total loss; and the decision turned upon the general import of the exception, and proof of the established usage and practice, from which Lord Mansfield deduced the principle, that if the specific thing come to the port of delivery, the underwriter is not liable.

In a subsequent case, of Cocking vs. Frazer, the decision went upon the same principle, or, rather, as Marshall observes, it was carried farther. There, upon an insurance of ship and goods, with the usual memorandum, the cargo being fish, a part was thrown overboard for the preservation of the ship and cargo in the course of the voyage, and a part arrived at Lisbon, and was there, upon a survey, determined to be of no value, through sea-damage ; and in consequence the ship did not pursue her voyage to her place of destination. The insurer was holden liable for the general average upon the fish thrown overboard, but not for the loss upon the fish which arrived at Lisbon, and which might, as it appears, have been carried to the port of destination, notwithstanding the sea-damage. As to articles within the memorandum, the insurer was holden to have engaged against a total loss. Now, a total loss of the thing insured, Lord Mansfield observes, is the absolute destruction of it by the wreck of the ship.

[*474] * This principle was applied, in these decisions, to

cases of perishable articles, excepted by the common memorandum. But in the case of Manning vs. Newnham, the loss of the voyage insured, when the subject-matter of the insurance specifically remained, was, under the circumstances of the case, and after some hesitation, adjudged a total loss within the intent of the parties to a policy containing a warranty against particular average. The insurance, in that case, was made upon a ship, her cargo and freight; the ship, freight, and goods, warranted free of particular average, for a voyage from Tortola to London. The ship, having sailed upon the voyage insured, put back in distress, and, upon a survey, was declared unable to proceed to sea with her cargo upon a London voyage ; and it appeared that she could not be repaired in any of the English islands in the West Indies; and any other resort for the purpose was, if not impracticable, very hazardous, the French and English being then at war. The cargo, although not damaged, was landed and sold ; and the assured recovered as for a total loss, upon the ground that the .voyage was totally lost and gone, by perils insured against.

To reconcile this decision with the principle which governed in the decisions before cited, it must be understood that an interruption by a peril insured against, when in the event, and by unavoidable consequences, the voyage insured is thereby entirely and inevitably defeated and lost, is a total loss within the meaning of a policy containing a warranty against particular average, and with the same effect upon the insurance, as the absolute destruction of the thing insured, by the wreck of the ship.

The general principle, then, in cases arising under policies containing exceptions of particular average, or warranties against partial losses, is, that the insurer is liable as for a total loss, whenever, by a peril insured against, the subject-matter of the insurance is absolutely destroyed; or whenever, if we yield to the authority of Manning vs. * Newnham, the voyage insured is entirely [ * 475 ] and inevitably defeated and lost.

When the policy is expressed, as in the case at bar, to be upon the risk of a total loss only, the same principles must, I think, govern the decision. As to the distinction contended for by the defendant’s counsel, and stated in the exceptions, of a constructively total, and a physically total loss, intending by the latter a loss with out any salvage, it is not warranted by any of the text writers upon the subject of marine insurance. A total loss with salvage is a case frequently mentioned and described; and it is indeed difficult to conceive of any event or peril, provided against by the ordinary forms of insurance, which does not admit the supposition of some salvage, remotely possible, at the least: as in the case of a ship foundered or burnt at sea, every possible chance of salvage is by no means excluded. But in the technical sense of the words “ total loss,” and for every beneficial purpose, in which a contract of in surance can be employed, a ship foundered and burnt at sea, or wrecked and broken upon the land, so as to be past relief or repair, is specifically, and as a vessel totally destroyed ; and such an event is a total loss ; — and when it has happened from a peril insured against, it is a loss for which the underwriter is liable, notwithstanding salvage, and a very considerable salvage, remaining; and notwithstanding any restriction the policy may contain, as being expressed to be an insurance against a total loss only, or as containing an exception or warranty, on the part of the assured, against average or partial losses.

The case of a total loss of the voyage, when the ship and sub ject-matter of the insurance specifically remain, as in the case of Manning vs. Netvnham, it is perhaps more difficult to admit within the same principle of construction. But upon the principle adopted in that decision, the voyage is to be'inevitably and entirely .defeated ; and the total loss does not depend upon the voluntary dereliction of the voyage by the assured, either as not [ *476 ] worth pursuing, or *as being without funds, or any other circumstance depending upon the will or management of the assured or his agent, or upon any election he can exercise, by an abandonment or otherwise, for the purpose of rendering a loss constructively total, a loss partial in its nature.

In examining the case at bar, according to the result of these decisions and principles, and considering the plaintiff holden to prove a loss, total in its nature, but not requiring him to prove cir cumstances that exclude every remnant or expectation of salvage,— the question, then, upon the exceptions will be, whether the vessel of the plaintiff was specifically destroyed, or the voyage insured was inevitably defeated, by the events stated in the evidence, and to De understood as proved, in this question.

According to the evidence referred to us, the vessel, although injured in her hull by stranding, was relieved and carried into a port where repairs were practicable, and to be obtained at less than half the amount of her estimated value. The cargo was saved entire, or with very little damage, except the expenses of salvage. And it does not appear, even if the vessel insured had been irreparable, that another carrier for the cargo might not have been procured. Under these circumstances, the agent of the assured proceeded to strip the vessel, to sell the hull and cargo, and to abandon the voyage. The only circumstance urged or contemplated, as rendering this course necessary, was the want of funds to pay for salvage and repairs; and we cannot but take notice, that this necessity was supposed to operate an inevitable total loss, at a port within a moderate distance from the owner’s residence. The intelligence which seems to have given occasion to the insurance made by the plaintiff, more than thirty days after the loss averred had taken place, was brought in fifteen days from the neighborhood of Bermudas to Newcastle, in the neighborhood of Wiscasset; and it is said that the same voyage is sometimes, and not unfrequently, performed in a much shorter time.

*If the damage suffered by the vessel in her stranding [ * 477 ] was not a shipwreck, or an irretrievable injury in its own nature, specifically destructive to the vessel, all the other circumstances of the loss proved were partial in their nature, or a business of choice and management by the agent of the assured, for whose conduct he is responsible. Perhaps, upon the facts found, it is not perfectly clear what was the extent of the injury which the vessel insured had sustained ; but if afloat, or if it was practicable to put her afloat, and if she was capable of being repaired at any expense, it was not a total loss within the meaning and intent of the policy relied on in this case. It is stated that the vessel was not worth repairing, and that it would have cost 1500 dollars to repair her; which proves that the subject-matter of the insurance was not specifically destroyed, and that the voyage was not entirely and inevitably defeated. Whether the injury sustained, and the expenses of salvage, rendered the voyage of no value, and not worth pursuing, is not a question to be considered, where the policy is restricted to the case of a total loss. That case is only proved by showing the destruction of the thing specifically, and in that sense totally; or the inevitable loss of the voyage insured upon it, if, yielding to the authority of Manning vs. Newnham, the principle can be carried to that extent, by a construction the most favorable that can be admitted for the assured in the case at bar.

The construction we have adopted, of the words employed in the memorandum in question, renders a decision unnecessary, as to the evidence offered and rejected at the trial. Upon this part of the case, it may be sufficient to observe, that the written words of the parties is the best evidence of their agreement; and paroi evidence is not admissible to disannul or substantially to vary a written contract. , A usage may be proved by paroi evidence, and, when proved, it may give a peculiar effect and meaning to the words of a contract necessarily referring to the usage proved. But in the case at bar, the evidence offered and rejected at the trial was not of a usage.

* As to the question made upon the evidence of an [ * 478 ] abandonment attempted to be proved in this case, it seems very clear, upon the facts stated, that, supposing this to be a case in which an abandonment is essential, and that, independent o this restriction upon his insurance, the assured was entitled to aban don under the circumstances proved, that the assured did not elect to abandon within any reasonable time after the events at Bermudas and the state of his vessel and cargo was known ; and that he never did actually make an offer of abandoning to his underwriters, before this action was commenced. His agent was never authorized to make this offer, and when the plaintiff went himself to the office, besides that it was then too late, if an election to abandon were essential to his demand, he used no words, which can, by any construction, be considered as an offer to abandon. He stated his loss, and the supposed amount of salvage in the hands of his captain. But if a loss had been proved in this case, total in its own nature and in the sense of the parties to this contract, limited as it is by the memorandum which has been considered, a statement of the salvage remaining is all that would be requisite, in my opinion, to the claim of the assured to a total loss ; that is, to enable him to recover the sum insured, deducting the amount of salvage received by the assured or his agent. In this opinion, however, my brethren do not concur with me. And according to my own view of the subject, if the verdict taken in this case finds the whole sum insured by the defendant, without any deduction for salvage, it is in that respect erroneous, if in no other.

But without finally deciding upon any objection of that kind, and entirely upon the ground, that a total loss, within the meaning oi the policy in question, was not proved, the verdict must be set aside, and a new trial is granted ; this being the only order which the Court can make, in the actual state of the proceedings in this cause It is with great reluctance that we thus postpone a [ * 479 ] final * decision upon this insurance and supposed loss. But we are all of the opinion, that' a total loss, in the sense of the parties to the policy, from the events averred in the plaintiff’s declaration, is not proved, nor provable, by the evidence referred to us; if, indeed, it is provable by any evidence that can be adduced for the plaintiff, considering the facts which he admits to be proved ; particularly that the vessel might have been repaired at less than half her estimated value; from which it must be concluded, that she was not specifically destroyed, or rendered irreparable ; and if it is necessary to go so far, that the voyage was not absolutely lost; and without evidence to that effect, we think there can be no proof of a total loss, either of the vessel, cargo, or freight, in any sense which the parties to the policy in question can bf understood to have intended by their contract. 
      
      
        Marsh. 132.
     
      
       2 Stra. 1065.
     
      
      
        Park, 116. — Marshall, 143.
     
      
      
        Park, 114. — Marshall, 144
      
     
      
      
        Park, 169. —Marshall, 505.
     
      
      
        [Parry vs. Aberdeen, 9 B. & Cres. 411.— Gernon vs. Roy. Ex. Ass. Co.— 6 Taunt. 383.— Woldworth vs. Wise, 7 B. & Cr. 744. — Marcardier vs. Ches. Ins. Co. 8 Cranch, 39 —Ed.]
     
      
      
        [Anderson vs. Wallis, 2 M. & S. 240. — 2 M. & S. 371. — Wilson vs. Roy. Ex. Ins. Co , 2 Camp. 626.— Thomson vs. Roy. Ex. Ins. Co., 16 East, 214. —Ed.]
     
      
       3 Wils. 276, Meres & Al. vs. Ansell & Al.
      
     
      
      
        [New York Gaslight Co. vs. Mechanics Ins. Co., 2 Hall, 108. — Mellen & Nesmith vs. Nat. Ins. Co., 1 Hall, 452. — Levy & Al. vs. Merrill & Al., 4 Greenl. 180. — Parks vs. Gen. Int. Ins. Co., 5 Pick. 34. — Astor vs. Un. Ins. Co., 7 Cowen, 202. — Ed.]
     
      
      
        [Fowler vs. Etna Insurance Company, 7 Wend. 270. — Ed.]
     
      
      
        [Petapsco Ins. Co. vs. Southgate, 5 Peters, 604. — Parmenter vs. Todhunter 1 Camp. 541. — Pierce vs Ocean Ins. Co., 18 Pick. 83. — Houston vs. Thornton, Holt, 243. — Badger vs. Ocean Ins. Co., 23 Pick. 347. — Ed.]
     
      
       This was said at the bar to be the third verdict that the plaintiff had obtained in this action.
     