
    Woodbury Storer versus William Gray, Jun.
    
      (February Term, 1802,
    
      in Suffolk.)
    
    A vessel insured is taken by a French cruiser, retaken by a British frigate, libelled m tne English Court of Vice-admiralty, and decreed to be sold for the payment of salvage. The master purchases her, and returns with her, and delivers her tc the former owner, the assured, who, without any abandonment, credits the underwriter with the proceeds of the sale. Held to be a total loss; that the underwriters are entitled to the net proceeds of the sale received by the master, and to no more; that the assured was not bound to abandon, but may lawfully retain, the vessel.
    Assumpsit on a policy of insurance on the sloop Margaret and her cargo, wherein the plaintiff demands as for a total loss. The action was pending in the county of Cumberland, and, a statement of facts being agreed on, was continued nisi from September term, at Portland, to be argued at this term.
    The facts agreed on by the parties were as follows, viz.:—that the plaintiff, being the owner of the sloop Margaret, and her cargo, on the 14th of January, 1800, caused the policy declared upon to be made, and the. same was accordingly made, *and subscribed by the agent of the defendant, for two [ * 566 ] thousand dollars; that the said sloop, on the said 14th of January, 1800, sailed fiom Portland for Cape Francois, and on the 17th day of February following, as she was proceeding on her voyage, was taken by a French privateer, the name of which and of her commander is unknown ; that all the crew of the Margaret were'taken out, except the master, a French crew put on board, and the sloop ordered to a French port; that while the sloop was in possession of the French crew, property belonging' to the cargo, to the amount of 281 dollars, was plundered ; that after the sloop had been in possession of the captors three days, she was recaptured by the British frigate TJ Unite, commanded by John Beresford, Esq., and sent into the Island of. Tortola; that the said sloop and her cargo were then libelled by the recaptors for salvage; that the Vice-admiralty Court of that island decreed that the whole of the vessel and cargo should be sold at auction for the payment of the salvage to the recaptors, and that one third of the gross amount of the sales should be paid to the recaptors for such salvage, the remaining two third parts thereof, after deducting costs of suit, should be paid to the master of the sloop, for the benefit of the owners, underwriters, and all concerned ; that the vessel was accordingly sold for 807 dollars and 25 cents, and the cargo for 3842 dollars and 64 cents; that the said cargo was sold in lots, and purchased by the inhabitants of the island; that the vessel was purchased by David Maxwell, the master, who returned in her, with part of her former crew, to Portland, and there delivered her, to gether with about one hundred hogsheads of salt, purchased with the proceeds of said cargo, for ballast, — on which there was a loss when sold at Boston, — to the plaintiff, the former owner, who re ceived the same, and appropriated it (them) to his own use; that the plaintiff has never abandoned, or offered to abandon, to the defend ant, or any of the underwriters, either vessel or cargo, but credited them, when he demanded a settlement of the policy, with the net proceeds of the property sold in the West Indies.
    
    The question submitted to the opinion of the Court in this case is whether, upon the foregoing state of facts, the cap- [ * 567 ] turc, * recapture, and sale, of the sloop and cargo, for the payment of salvage, was such a change of property as will render the defendant liable for a total loss. If the Court should be of the opinion that the circumstances aforesaid create such a change of the property as will render the defendant liable as for a total loss, then judgment is to be rendered for the plaintiff for such sum as shall be agreed on by the parties, or awarded by referees. But if the Court should be of the opinion that the circumstances aforesaid do not create such a change of property as will render the defendant liable as for a total loss, but only for an average loss, then the parties agree that such average loss shall be adjusted by referees, as aforesaid, or by the Court.
    
      Symmes and Parker for the appellant.
    
      Daniel Davis for the appellee.
   This question was argued at this term by Parsons for the plaintiff, and the Solicitor-General (Davis) and Prescott for the defendant; and the following opinion given by the Court, consisting of Dana, C. J., Paine, Strong, Sewall, and Thatcher, Justices, viz., “ February term, at Boston, A. D. 1802. —The Court having heard arguments on the aforesaid state of facts, and being fully advised thereon, are of opinion that the loss declared on is a total loss ; that the assurer is entitled to the net proceeds of the sale of the said sloop and cargo, received by the master in Tortola, and no more; that the assured is not bound to abandon, but may lawfully retain the sloop there repurchased, and the cargo of salt.” 
      
      Thatcher, J., was of opinion against the plaintiff's recovering as for a total loss
     
      
      
        b) Sawyer vs. Maine F. & M. Ins. Company, 12 Mass. Rep. 291.— Oliver vs. New buryport M. Ins. Company, 3 Mass. Rep. 51. — Jumel & Al. vs. Mar. Ins. Co. 7 Johns. 423. — Vide Ralston vs. Un. Ins. Co. 4 Bum. 386. — Foster vs. Wilson, 6 Taunt. 25. — 1 Marsh. R. 425. — M'Masters vs. Shoolbred, 1 Esp. 237. — Queen vs. Un. Ins. Co Cond. Marsh. 582, n. — Abbot vs. Scabor, 3 Johns. Cas. 39. — Story vs. Strettell, 1 Dal 10. — United Ins. Co. vs. Robinson, 2 Caines, 280. — Boyle vs. Atty, 1 Gow. 50.
     