
    Sullivan Dorr versus The Union Insurance Company.
    A policy of insurance contained the following memorandum, “ In case of capture, or restraint, the assured is not to abandon, until the property is condemned, or until it shall have been proved to have been ninety days under detention.” — The property was seized and had been detained more than ninety days, when the assured first heard of the seizure, who thereupon abandoned to the underwriters ; but at the time of the abandonment the property had been restored to the agent of the owner; and it was held that the underwriters were not bound to accept the abandonment.
    This was an action of the case upon a policy of insurance, by which the defendants insured for the plaintiff 11,700 dollars on 190 chests of black tea on board the ship President Adams, at and from Boston to Tonningen, with liberty to touch at Heligoland for infor motion, and a pilot.
    The policy was made on the 7th of November, 1809; and at the foot of it was the following memorandum, viz. “ In case of capture or restraint, the assured is not to abandon, until the property is condemned, or until it shall have been proved to have been ninety days under detention.”
    The cause was tried upon the general issue, at the last Novembei term in this county, before Parker, J., from whose report of the trial the following facts appear.
    The vessel sailed from Boston on the voyage insured, the property of the plaintiff; and on the 22d of December, * 1809, having arrived in the river Eyder, near to said Tonningen, the vessel with the tea on board was seized and restrained by certain officers of the king of Denmark, and by them detained until the 27th of April, 1810, and on that day was restored to the agents of the owners.
    On the 2d day of June following, the plaintiff having received intelligence from a person, who left Tonningen on the 26th of March, that the tea then remained under detention ; but not knowing of the restoration of the same, offered to abandon all his right and title in the same to the defendants, who refused to accept the same. This offer was within a reasonable time after the plaintiff received the intelligence of the restraint.
    A verdict was taken by consent for the plaintiff, as for a total loss, which was to be set aside, and a nonsuit entered, if the Court should be of opinion, that upon these facts the plaintiff had not a right to abandon.
    
      Jackson, for the plaintiff,
    argued that the memorandum added to the policy in the case, gave the assured an absolute right to abandon, when the property insured shall have been detained ninety days. The clause was intended to avoid all question of the actual state of the fact at the time, to fix the rights and duties of the parties by the detention for the space of ninety days. One good effect contemplated from this agreement is, that the right of abandonment being put out of question, the underwriter may without hesitation accept the abandonment, and take measures for preventing a waste and loss of the property insured, which often happen when any uncertainty attaches to the right of abandonment. The plain import of the memorandum is, that if after the expiration of ninety days from the capture, the property shall still be detained, the right of abandonment shall be fixed.
    
      Dexter for the defendants.
    The memorandum in question was introduced into our policies from the present state of commerce, when detentions are so frequent without legal cause ; and its object was to restrain for a time the right of * the assured to abandon for that cause, which he would otherwise have had immediately. A very improper effect had grown out of insurances without this restriction; by which underwriters became in fact answerable for the badness of markets. It was intended by the clause in question to protect the underwriter in some measure from this injurious effect; and in no way to enlarge or extend the right of the assured to abandon. If the intention had been, as is contended, for the plaintiff, the clause would have been in the affirmative.
   By the Court.

The only question before us in this case, is whether the plaintiff had a right to abandon, at the time when his offer was made and refused. The plaintiff’s counsel has argued that the right of abandonment was enlarged by the memorandum .at the foot of the policy. But we are satisfied that the right is thereby restrained. The assured is not to abandon for the cause of detention until ninety days after the capture; nor at the expiration of that period, unless the facts then existing give him a right to abandon. We are therefore all of opinion that the plaintiff had not a right to abandon, when he made the offer to the defendants; and that the verdict must be set aside, and the plaintiff become nonsuit.

Plaintiff nonsuit. 
      
       See 4 Cranch’s Rep. 29, 202.—3 Binney’s Rep. 287. —10 East, 329.
     