#### THE CHESAPEAKE INSURANCE COMPANY *v.*STARK.

The agent who makes insurance for his principal, has authority to abandon whithout a formal letter of attorney.

The informality of a deed of cession is unimportant, because, if the abandonment be unexceptionable, if the abandonment be unexceptionable, the property vests immediately in the underwrtiters, and the deed is not essential to the right of either party.

If the abandonment be legal, it puts the underwriters completely in the placed of the assured, and the agent of the assused becomes the agent of the underwriters a speea verdiet is deective which de ective which does not find whether the al abandon *269ment was in reasonable time. What is reasonable time of abandonment, is a question compounded of fact and law, which must be found by a jury under the direction of the court.

*268'ERROR to the circuit court of the district pf Maryland, in an action *oí*covenant upon a policy of insurance uPon goods on board the ship Minerva, from Philadelphia to Laguira, and back to Philadelphia.

i . . r , . „ I he cause was tried upon the issue of *non mfregit*conventionem, and the jury found a special verdict, Stating the following facts :

On the 5th of March* 1807, *Christian Dannenberg,*as agent of the plaintiff,' who was a citizen of Pcnnsylvania’ shipped for Laguira, on account, and at the sole risk, of the plaintiff, sundry goods, beifig American P^prrty, and regularly documented as such, to the vafile of 8,700 dollars and upwards,-on board the ship Minerva, and consigned tl)em to William Parker, su-' on board. On the 12th of March she sailed with the goods froth Philadelphia for, Laguira. °

On the 21st of March, *Charles*G. *Boerstler*for the effected an insurance with the Chesapeake Insiirance Company, who are citizens of the state of Maryland, upon the goods, to the amount of 8,700 dollavs, by the poliev mentioned in the .declaration, which was executed under the common seal of the company. r *J*

On the outward voyage she was'captured by a British tjr'vatecr and carried into Currajoa. On the 29th of April, 18°7, the cantaia made a protest. On the 13th *269of June, 1807, the ship and goods being still in possession of the captors at Currafoa, and there detained by them, the said Charles G. Boerstler, “ *for the plaintiff?*abandorfed to the Chesapeake Insurant e Company, the goods shipped by Dannenb». rg for the plaintiff,’by a letter to the president and directors ol the Chesapeake Insurance Company, the defendants, in the words and figures following:

“Baltimore, June 13, 1807.

a President and Directors of the Chesapeake Insurance Company

“ Gentlemen,

“ Having this morning received a letter from Mr. G. Dannenlx-rg, of Philadelphia, the agent for Mr. John Philip Stark, of Hanover, ordering me to abandon the goods shipped by him, for Mr. Stark’s account, on board the American ship Minerva, Captain Newcomb, carried into, and detained at Cuna^oa, on her voyage from Philadelphia to Laguira, whereby the object of the expedition is totally frustrated and destroyed; I herewith abandon to you the whole of Mr. S'ark’s interest in the cargo of the Minerva, which you have insured in your office.

“ I have the hono.ur to be, gentlemen, your most “ obedient servant,

’• “ *Charles G, Boerstler?*

Which abandonment the defendants then refused to accept.

W. Parker, the supercargo, addressed a memorial to the governor of Curmcoa, on. the 19th of June, 1810, in which he complains of the detention as being of the most ruinous consequences to the owners.

On the 25th of July, Í807, the vessel and cargo being still detained at Curraqoa, in the. possession of the captors, Parker entered into an agreement with I. F. Burke, the owner of the privateer, by which a, certain *270part of the goods, should be appraised and the price paid'by Parker, to be repaid by JBur.ke in case the goods should not be adjudged good prize; and that a certain other part should be kept by Burke, upon his engaging Í0 pay the value thereof in the like case. In - consequence of which agreement the. vessel was liberated, and proceeded to Laguira, where'the goods were-sold, and produced abqut 5,900 dollars.

Parker employed an agent to attend the trial at Tortola, ahd to claim the goods for the plaintiff; but a trial was never had, nor any proceedings instituted for* die purpose of obtaining an adjudication,

' On the. 22d of August, 1807, Dañnenberg, as agent qf; the plaintiff, executed a deed to the Chesapeake Insurance. Company, ^transferring to them all his right and title'to the goods, as attorney of the plaintiff, which deed they refused to receive.

*Winder*and *Martin,*for the plaintiffs in error, contended,

1. That the contract by *Parker with Burke*was either the personal contract of Parker, or the contract of Stark; and was the cause of the loss.

2. That there was no sufficient abandonment. ■ Bannénberg was the agent of the plaintiff to make the shipment, but he had no power to abandon, nor to transfer .to the defendants the rights of the plaintiff. Much less'could *Boerstler, the*friend of £)annenberg. If the vessel and cargo had returned after the abandonment, there was nothing to prevent Stark from claiming. The deed of'Cession ought to have been under the plaintiff’s seal, or a power of attorney, under seal, should be produced.

3. The abandonment was not in due time.

*Harper,*contra.

If the authority of Dannfenberg to abandon does not- ' *271appear in the special verdict, nor the time when he received notice'of the loss, this court will award a *ve* nire facias*¿/e novo, because the jury have found the *evidence*of the authority and time, but not *the-fact*of authority, nor the reasonableness of the time. '

In a mercantile tránsaetión no instrument under seal is necessary. The letter is found which states the fact of abandonment, and the jury find the agency of Dannenberg. The letter states the authority of Bot rstler, and the jury have found his authority. This throws the burden of proof on the other side. The deed of cession from Dannenberg states that he acts for Stark, and as his attorney.. The jury find that it was done.by Dannenberg *for*Stark. It was not necessary that .the deed should have been executed in the name of Stark. It is as well ifc it be signed by Dannenberg, as his agent or attorney.

After the, abandonment Parker became the agent of the underwi' :ers, who were then the owners. It is a general print pie that all acts • done *bona fide*for the best interest d,r all concerned, are the acts of the underwriters, aftdr a rightful abandonment. The assured cannot then revoke ; nor can the underwriters throw back the property, without the consent.of the assured.

*Martin,*in reply.

The question is, whether the assured can *elect*by-attorney to abandon. Parker could not be considered as the agent of the underwriters, in doing an act which *could*not benefit them.

The plea of *non infregit*was decided, before the statute of jeofails, to be an informal, but not an immaterial plea. 1 *Sid.*83. 1 *Lev.*290. It would have been bad upon special demurrer, but it is aided by the ver- . diet. No other form of pleading has ever been used in Maryland, upon a sealed policy.

*272
      *March*14.

Marshall, Ch. J.

delivered the opinion of the court as follows:

On the principal question in this case the cpurt can entertain no doubt.' On the capture of the'Minerva, the right to abandon was complete, and this right was exercised during her detention.

The objections to the form of .the abandonment are not 'deemed substantial. The agent who made the insurance might certainly be crt dited, and, in transactions of this kind, always is credited, when he declares that, by the order of his principal,' he abandons to the underwriters. In this case, the jury find .that the abandonment was made for the plaintiff; and tljis finding’ establishes that fact.

The informality of the deed of cession is thought unimportant, because, if the abandohment was unexceptionable, the property vested immediately, in the. underwriters, and the deed was not essential toffhe right of either party. Had it been demanded andlrjsfosed, that circumstance might have altered the law of the case.

If the abandonment was legal, it put the underwriters completely in the place of the assured, and Parker became their agent. When, he contracts on behalf of the owners, of the goods, he. contracts on behalf of the underwriters, who have become owners, not on behalf of Stark, who has ceased to be one. His act is no’ longer the act of Stark, and is m ’ to bé consi- ' dered as an interference, on his part, which may affect the abandonment. If any particular instructions bad been given on this subject, if any act of ownership ' had been exerted by Stark himself, such conduct might be construed into a relinquishment of an abandonment which had not been accepted ; but as nothing of'the kind exists, the act of the- supercargo is to be considered as the act of the persons interested, whoever they may be.

*273The only point which' presents any difficulty in the opinion of the court, is the objection founded on the omission, in the verdict, to find that the abandoninent was made in reasonable time.

The law is settled that an abandonment, to be effectual, must be made in reasonable time ; 'but what time is reasonable is a question compounded of fact and law, which has- not yet been reduced to such certainty as to enable the court to pronounce upon i% without the aid of a jury. Certainly the delay may be so great as to enable every man to declare, without hesitation, that it is unreasonable, or the abandonment may be so immediate, that all will admit it to have been made .in reasonable time : but there may be such a tmedium between these extremes, as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide,'then .the law would determine, to a day or an hour, on the time left for dt liberation, 'after receiving notice of the loss. But the law has not so determined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the court.-

In this case the jury have found an abandonment, but have not found whether it was made in- due time or otherwise. The fact is, therefore, found defectively ; and for that reason a *venire facias de novo*must be awarded.

It may . not be amiss to remark that tbe judicial ppinions which we generally find in the books, on these subjects, are usually given by way of instruction to tbe jury, or on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration,.

Judgment reversed, and the cause remanded, with direction to award a *venire facias de novo.*