Per curiam delivered by Lansing, Chancellor.
The plaintiff in error relies upon two points, for the reversal of the judgment rendered in the supreme court in the first of these causes. His counsel have stated them, and insisted—1st, That the brig John, having been released fourteen days before the abandonment, the mere ignorance of the owners of that circumstance, could not give them the right of abandoning the brig to the insurers, which it was admitted they could not have done, if they had known the real truth on the subject. And, 2dly, That the money received by the owners for the brig, ought to have been deducted from the same, as the underwriters were liable to pay, and the assured entitled to recover, only for the difference between that sum and the sum insured. These questions, it appears, arose at the trial of the cause at the sittings, and the Judge who presided, decided the suit on the authority of the case of Mumford v. Church, which was very fully and ably argued, while I was in the Supreme Court, in July Term, 1799 ; and, after much deliberation, the whole court united in opinion, that the abandonment was conclusive. My notebook is not now within my reach. I cannot therefore resort to it to refresh my memory, but I have a copy of the case which was stated by the parties in that cause, and from that it appears, that the policy was on the brig Betsey, which sailed •from New-York for Petit-Guave, in the island of Hispaniola, on the 12th May, 1798 ; that she was captured by a British •cruiser on the 26th day of the same month of May, and sent Into Port Mole St. Nicholas, where she was detained thre#s [39]*39weeks, and then restored upon paying charges; and that, after a further detention of three weeks, she was permitted to depart, but under a British convoy to Jamaica, from whence she returned to New-York. The abandonment was made the 12th June. The restoration had, not taken place when the abandonment was made; for the capture was on the 26th May, the abandonment on the 12th June, and three weeks from the former of those days, during which the litigation with the captors was pending, clearly over-reached the period of the abandonment. The notes which Mr. Justice Kent took on the subject, and which I have examined since the argument of these causes, show, that this was particularly adverted to by the court. If, therefore, the opinion given on that occasion was expressed with the latitude intimated, it was so far as it was beyond what the circumstances of the case required, extra-judicial; and, as such, it would not now .,be considered' as authority in the court, which pronounced it. The general reasoning resorted to in the decision of cases, is sometimes calculated to mislead; but whenever it becomes necessary to examine them as authority, it must be rigidly restrained to the existing case. That the decision in this cause was supposed to be broader than it appears upon examination to have been; and that it was so received, is evident from the case of Slocum v. Burling, determined in October term, 1799. In this a question arose on a policy insuring a cargo which was captured, liberated, and afterwards abandoned, before notice of the liberation had been received. That case was decided without argument, expressly on the authority of that of Mumford v. Church; and on the general ground, that an abandonment once made was definitive. So were the present cases at the sittings. I however think that these cases are in no respects similar to that of Mumford v. Church; and that, even in the supreme court, they would still be considered as embracing an open question. In most occasions of maritime insurances, the remoteness of the owners from the subject insured, effectually precludes from a direct personal agency in its management, on the spot to which it may be conveyed, by any of the incalculable variety of incidents to which this species of adventure is so pre-eminently exposed. To obviate sdme of the inconveniences arising from this circumstance, they are sometimes permitted to act, upon the best [40]*40information they are able to acquire of the actual situation of the subject insured, and to make such information the basis,of the rights they intend to assert, in consequence of the occurrence of any of" those accidents, which, in their effect, produce either a technical or actual total loss. But certainly, if the information is either totally unfounded, or materially variant from the truth, it would - be a strange position to maintain, that its resemblance, should be preferred. to the truth itself. If the insurers and insured had been at the port to which the captors carried the brig, an abandonment, under all the circumstances of this case, could not have been permitted; for at the time it was made the vessel was restored, and prosecuting its destined voyage. From - the mere act of abandonment, no positive right can be derived to the insured, unless it be combined with a total loss ; for if the loss should, in the final event, prove an average, instead of a total loss, the act of abandonment would be nugatory. In these cases, the loss is not pretended to be deduced from the deterioration of the vessels; the first policy was underwritten for $5000, the repairs of the vessel amounted to about $800, and the full freight from New-York to Cadiz, was paid by the captors ; the amount of this loss, calculated from the comparative value of the subject insured, with the amount of the repairs, clearly, on that ground only, would constitute an average loss. That this is the doctrine adopted in Great-Britain, and which still obtains there, appears from some of the cases cited. In the case.of Goss v. Withers, it Was made a point, whether the assured had or had not a right to abandon, after the ship had been recaptured and carried into Milford harbour. The capture was assumed, as prima facie constituting a total loss. The salvage amounted to "half her value ; the loss of freight, the captivity of the master and mariners, the dissolution of the charter party, and the disability of the vessel to pursue her voyage, are reasons given by the court, from which the continuance of the total loss was to be inferred, and on that ground only, and not because the capture constituted a total loss, was the judSment the court given. In the case of Hamilton v. Mendes, which arose on a policy on the ship Selby and her cargo, from Virginia or Maryland, to London ; the ship had been captured, recaptured, and carried into Plymouth, where [41]*41she arrived on the 6th day of June, 1760, and was offeréd to be abandoned, at London, on the 23d of the same month. The ship had sustained no damage from the capture, and the whole cargo was delivered to the freighters, at the port of London, who paid the freight. Lord Mansfield, in delivering the opinion of the court, observed, that the ship and cargo, in the case of Goss v. Withers, were literally lost. He explains the words quoted from his opinion in the latter case : “ that there is no book, ancient or modern, which does not “ say, that in case of the ship being taken, the insured may “ demand for a total loss, and abandon,” and adds, “ but the “ proposition was applied to the subject matter, and is certain- “ ly true, provided the capture or the total loss occasioned “ thereby, continue to the time of abandoning and bringing the “ actionHe afterwards lays it down, as the point intended to be determined, that the plaintiff upon a policy, can only recover an indemnity, according to the nature of his case, at the time of the action brought, or at most, at the time of the offer to abandon, and observes, that the plaintiff’s demand is for an indemnity.
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Per curiam delivered by Lansing, Chancellor.
The plaintiff in error relies upon two points, for the reversal of the judgment rendered in the supreme court in the first of these causes. His counsel have stated them, and insisted—1st, That the brig John, having been released fourteen days before the abandonment, the mere ignorance of the owners of that circumstance, could not give them the right of abandoning the brig to the insurers, which it was admitted they could not have done, if they had known the real truth on the subject. And, 2dly, That the money received by the owners for the brig, ought to have been deducted from the same, as the underwriters were liable to pay, and the assured entitled to recover, only for the difference between that sum and the sum insured. These questions, it appears, arose at the trial of the cause at the sittings, and the Judge who presided, decided the suit on the authority of the case of Mumford v. Church, which was very fully and ably argued, while I was in the Supreme Court, in July Term, 1799 ; and, after much deliberation, the whole court united in opinion, that the abandonment was conclusive. My notebook is not now within my reach. I cannot therefore resort to it to refresh my memory, but I have a copy of the case which was stated by the parties in that cause, and from that it appears, that the policy was on the brig Betsey, which sailed •from New-York for Petit-Guave, in the island of Hispaniola, on the 12th May, 1798 ; that she was captured by a British •cruiser on the 26th day of the same month of May, and sent Into Port Mole St. Nicholas, where she was detained thre#s [39]*39weeks, and then restored upon paying charges; and that, after a further detention of three weeks, she was permitted to depart, but under a British convoy to Jamaica, from whence she returned to New-York. The abandonment was made the 12th June. The restoration had, not taken place when the abandonment was made; for the capture was on the 26th May, the abandonment on the 12th June, and three weeks from the former of those days, during which the litigation with the captors was pending, clearly over-reached the period of the abandonment. The notes which Mr. Justice Kent took on the subject, and which I have examined since the argument of these causes, show, that this was particularly adverted to by the court. If, therefore, the opinion given on that occasion was expressed with the latitude intimated, it was so far as it was beyond what the circumstances of the case required, extra-judicial; and, as such, it would not now .,be considered' as authority in the court, which pronounced it. The general reasoning resorted to in the decision of cases, is sometimes calculated to mislead; but whenever it becomes necessary to examine them as authority, it must be rigidly restrained to the existing case. That the decision in this cause was supposed to be broader than it appears upon examination to have been; and that it was so received, is evident from the case of Slocum v. Burling, determined in October term, 1799. In this a question arose on a policy insuring a cargo which was captured, liberated, and afterwards abandoned, before notice of the liberation had been received. That case was decided without argument, expressly on the authority of that of Mumford v. Church; and on the general ground, that an abandonment once made was definitive. So were the present cases at the sittings. I however think that these cases are in no respects similar to that of Mumford v. Church; and that, even in the supreme court, they would still be considered as embracing an open question. In most occasions of maritime insurances, the remoteness of the owners from the subject insured, effectually precludes from a direct personal agency in its management, on the spot to which it may be conveyed, by any of the incalculable variety of incidents to which this species of adventure is so pre-eminently exposed. To obviate sdme of the inconveniences arising from this circumstance, they are sometimes permitted to act, upon the best [40]*40information they are able to acquire of the actual situation of the subject insured, and to make such information the basis,of the rights they intend to assert, in consequence of the occurrence of any of" those accidents, which, in their effect, produce either a technical or actual total loss. But certainly, if the information is either totally unfounded, or materially variant from the truth, it would - be a strange position to maintain, that its resemblance, should be preferred. to the truth itself. If the insurers and insured had been at the port to which the captors carried the brig, an abandonment, under all the circumstances of this case, could not have been permitted; for at the time it was made the vessel was restored, and prosecuting its destined voyage. From - the mere act of abandonment, no positive right can be derived to the insured, unless it be combined with a total loss ; for if the loss should, in the final event, prove an average, instead of a total loss, the act of abandonment would be nugatory. In these cases, the loss is not pretended to be deduced from the deterioration of the vessels; the first policy was underwritten for $5000, the repairs of the vessel amounted to about $800, and the full freight from New-York to Cadiz, was paid by the captors ; the amount of this loss, calculated from the comparative value of the subject insured, with the amount of the repairs, clearly, on that ground only, would constitute an average loss. That this is the doctrine adopted in Great-Britain, and which still obtains there, appears from some of the cases cited. In the case.of Goss v. Withers, it Was made a point, whether the assured had or had not a right to abandon, after the ship had been recaptured and carried into Milford harbour. The capture was assumed, as prima facie constituting a total loss. The salvage amounted to "half her value ; the loss of freight, the captivity of the master and mariners, the dissolution of the charter party, and the disability of the vessel to pursue her voyage, are reasons given by the court, from which the continuance of the total loss was to be inferred, and on that ground only, and not because the capture constituted a total loss, was the judSment the court given. In the case of Hamilton v. Mendes, which arose on a policy on the ship Selby and her cargo, from Virginia or Maryland, to London ; the ship had been captured, recaptured, and carried into Plymouth, where [41]*41she arrived on the 6th day of June, 1760, and was offeréd to be abandoned, at London, on the 23d of the same month. The ship had sustained no damage from the capture, and the whole cargo was delivered to the freighters, at the port of London, who paid the freight. Lord Mansfield, in delivering the opinion of the court, observed, that the ship and cargo, in the case of Goss v. Withers, were literally lost. He explains the words quoted from his opinion in the latter case : “ that there is no book, ancient or modern, which does not “ say, that in case of the ship being taken, the insured may “ demand for a total loss, and abandon,” and adds, “ but the “ proposition was applied to the subject matter, and is certain- “ ly true, provided the capture or the total loss occasioned “ thereby, continue to the time of abandoning and bringing the “ actionHe afterwards lays it down, as the point intended to be determined, that the plaintiff upon a policy, can only recover an indemnity, according to the nature of his case, at the time of the action brought, or at most, at the time of the offer to abandon, and observes, that the plaintiff’s demand is for an indemnity. His action, then, must be founded on the nature of his damnification, as it really was, at the time of the action brought. It is repugnant, upon a contract of indemnity, to recover as for a total loss, when the final event has determined that the damnification is in truth, an average loss only. This reasoning is adopted, after an elaborate research, after solemn argument, and deliberate examination of the theories of foreign jurists, and after a critical review of the opinion given in the case of Goss v. Withers. From these circumstances, as well as from the great talents and ability that so eminently distinguished the tribunal which decided those cases, they'merit particular attention, and are well entitled to be considered as very weighty authority. They would have been respected as such anterior to the revolution, and, in the estimation of our courts, that authority has not been weakened by the change of government. The doctrines deducible from these cases, go the length of determining these; for they fully establish the position, that a capture may, according to circumstances, either produce a total partial loss; as, therefore, the actual loss in the first instance, less than one-sixth of the valuation of the brig in the policy, the abandonment could be founded only on a partial [42]*42consequence, was incapable of constituting a case to warrant it. The case of Mills v. Fletcher, was decided since the revolution, on the point, that if the owner suffers so much from a capture, that it is not worth his while to pursue the voyage, he may abandon ; and the reasoning in the case °f Goss v. Withers, and Hamilton v. Mendes, is again recognized and enforced. I have therefore no doubt, but that these cases ought to be governed by those of Goss v. Withers, and Hamilton v. Mendes, as well on the ground of authority as the cogency of the reasons given for those deciAs before the abandonments, the event of discharge sions. of the vessels had constituted an average loss only, the defendants are not entitled to recover as for a total loss. In forming this opinion, I have not brought into view those of the foreign jurists, cited in argument. In many instances, it is useful to resort to them, to elucidate general principles ; but the occasional infusion of the spirit of local codes into their general system, renders it sometimes difficult to discriminate accurately the degree of weight which ought to be attached to these opinions, bn the principles they treat of. In these cases, I do not think it necessary to enter into an examination of their doctrines, as the court can repose themselves on judicial opinions, derived to us as authority. But if it were necessary, from the slight glance which has been offered, I am persuaded they are capable of being reconciled, and that they would tend to corroborate the general result drawn from the cases adjudged in the English courts. As to the second point, in the case first argued, thinking as I do, that the first concludes against the defendant in error, if my opinion would prevail, it would not be necessary to decide on this; I shall however veiy briefly state my opinion on the second point also. If this was the case of total loss, the defendants in error, by abandoning, completely divested themselves of their interest, and as they after-wards sold the vessel, if the abandonment was valid, they of course disposed of property which the act of abandonment unequivocally determined, was that of the plaintiff. This is not case of mutual dealing, but the sum received is the price the subject, for the damnification Of which ’ a compensais demanded. It is a charge inseparably connected with subject, calculated" to diminish th‘é amount of the compensation', and the forms of law must be exceedingly rigid and [43]*43unbending, to preclude the plaintiff, (the defendant in the court below) from entitling himself to a deduction of the amount of the sale. I therefore think this, without notice of a set-off, a proper ground for deducting the amoúnt of the sale, after adjusting all reasonable allowances from the sum demanded by the defendants in error, and that the evidence to that point, ought to have been admitted. I am therefore of opinion, on both points, that the judgments in these causes should be reversed.
The whole court being unanimous in this opinion, the judgments in both causes were reversed, on the point of .abandonment.