[Memorandum. — The Honorable Samuel Sew all, having been duly c< m missioned and sworn as Chief Justice of this Court during the vacation, m the lace of the Honorable Theophilus Parsons, deceased, took his seat on the ench accordingly the first day of this term.]

[The Honorable Daniel Dewey, having been duly commissioned and sworn as - a Justice of this Court, in the place of the Honorable Samuel Sewall, appointed Chief Justice, took his seat on the bench during this term.]

#### John Dorr *versus*The New England Insurance Company.

Where an insurance was effected for a given time, and the. property was captured during the time, but not condemned until after its expiration, the underwriters were held liable, although the assured elected not to abandon on receiving intelligence of the capture.

This was an action of the case upon a policy of insurance, in which the plaintiff declares for a total loss. There was also a *10count for 1000 dollars, money laid out and expended, and other money counts.

The cause was tried on the general issue, before the present chief justice, November term, 1812.

It appears, from the judge’s report of the trial, that the defendants made the policy declared on, dated the 6th of June, 1807, for 25,000 dollars, on the cargo of the ship *Jenny,*at and from *Boston,*to and from every port and place to which she may proceed, backward and forward, until her return to *Boston, the time not exceeding twenty-four calendar months*from the date of the policy; [ * 2 ] beginning the * adventure upon the said cargo at *Boston,*at the premium of eight per cent, per annum, warranting eight per cent. By a memorandum at the foot of the policy, it is declared that the company take no risk of illicit trade, nor of trading from one belligerent port to another.

This policy being on the same voyage with that in the action of this same plaintiff against the *Union Insurance Company,*reported in the eighth volume of these Reports, (p. 494,) it is sufficient to refer to that report for a detailed history of the voyage. It is necessary here only to note that, in the case referred to, the policy being made on the 9th of June, 1807, did not expire until the 9th of June, 1809; whereas, in the present case, the policy was dated the 6th of June, 1807, and expired on the 6th of June, 1809, the vessel and cargo having been condemned on the 7th of June, 1809.

A verdict was taken for the plaintiff for a total loss, subject to the opinion of the Court; and it was to be set aside, and a new trial granted, if the Court should be of opinion, upon the facts reported, that the plaintiff was not entitled to recover a total loss • otherwise judgment was to be entered upon the verdict, with interest from the finding of the same.

The cause was argued, at the last March term in this county, by *Prescott*and *Jackson*for the plaintiff, and *Dexter*and *Gorham*for the defendants.

*For the defendants,*it was contended that the policy had ceased to protect the subject of the insurance at the time of the condem nation. No total loss had happened at the expiration of the policy. If the plaintiff relied on the capture, as constituting a total loss, it was necessary for him to abandon within a reasonable time of his being advised of it. Nothing occurred after the capture, and before the expiration of the policy, to change the rights of the parties, or that authorized the plaintiff to abandon. He did not abandon until advised of the condemnation; and before that took place, the policy had expired. The premium had then ceased, and of course the risk undertaken by the defendants had also ceased. If the *11plaintiff had insured this property, * with a stipulation that [ * 3 ] the risk should commence from the 6th of June, 1809, the insurers on such policy would have been liable for a total loss by the sentence of condemnation, which was passed on the next day. (1)

The opinion of the Court was delivered at this term by

(1)

*Marshall,*479, 484, 483. —13 *East,*304, *Mullett*vs. *Shedden.*— 6 *Mass. Rep*314, *Bill*& *Al.*vs. *Mason.*— 1 *D. & E.*608, *Mitchell & Al.*vs. *Edie.*

Sewall, C. J.

Two years since this plaintiff had a decision of this Court in his favor, having recovered in an action against the *Union Insurance Company*upon a policy for the same vessel, voyage, and risk. The loss averred and proved in that action was the same as that upon which his present action and demand arises against the' *New England Insurance Company.*In both the policies, contracts of insurance, for a term not exceeding twenty-four months from the date of the policy, are expressed. The policy in the case now before us being dated on the 6th of June, 1807, the term of insurance had elapsed before the 7th of June, 1809, when the vessel and cargo were condemned in the *British*Vice-Admiralty at *Calcutta ;*whereas, in the former case, the policy bearing date on the 9th of June, 1807, the term of insurance had not elapsed at the condemnation of the property insured.

If we adhere to the former decision, the only question now to be considered is, whether a total loss is proved to have happened within the term of time during which the cargo was protected by this policy, for the sum thereby insured.

The loss averred and proved is a loss by capture. The plaintiff contends that this must be considered as having happened, to all the purposes of this inquiry, when the vessel and cargo were seized and forcibly taken from the possession of the owners by the commander of the *British*frigate *Dover.*

This event was a loss constructively total at its commencement. The property remained specifically, and had not been taken out of the course of the voyage insured until more than a month after the capture. But on the 5th of February, 1809, when the captors of the *Jenny*left the coast of *China*with that vessel and her cargo, to carry them to * *Calcutta,*and when this property [ * 4 ] was afterwards condemned there in the Admiralty Court, as lawful prize to the captors, these subsequent events were aggravations of the capture. The departure from the coast of *China,*the arrival at *Calcutta,*and the condemnation there, — facts tending to prove a total loss,—are to be severally referred to the capture on that coast, when the property of the assured became subject to the control of the captors.

*12The insured was first informed of the capture on the *5th*of June. 1809, and according to the information then received, the vessel and cargo, although in tire power of the captors, remained at her place of destination, or nearly there, and he did not abandon. It was then uncertain whether the voyage insured had been permanently interrupted. The assured may be considered as having elected not to abandon upon that state of the intelligence; and no one doubts that he had a right so to elect, (a)

But the defendants in the case at bar contend that, after this election, no subsequent intelligence respecting the events and consequences of that capture could operate to entitle the assured to abandon as for a total loss then incurred; or, at least, that the condemnation at *Calcutta,*which happened after the term of insurance within this policy had elapsed, could not have the effect of entitling the assured to abandon for a loss by capture, referring, for proof of the loss, to the seizure of the ship *Jenny*by the frigate *Dover.*If the forcible taking of the property from the assured constitutes the loss, then their delay to abandon after intelligence of that event, or their election then not to abandon, determined the right of the assured to abandon for that cause ; and if the assured depends upon the condemnation at *Calcutta*to reinstate him in his right to abandon, that event having happened after this policy was determined by lapse of time, the loss was not total, as it respected the claims of the assured upon these defendants at the termination of their risk.

This argument is too refined, too abstract in its principles, [ * 5 ] to be of any practical utility. Let it be supposed that * the plaintiff is not entitled, or has not since elected, to demand a total loss; and that the question now made was of the amount of a partial loss recoverable on this insurance, under circumstances in all other respects the same as are now proved in the case at bar. Proof of the capture wquld maintain his demand for all the losses and damages sustained in consequence, all the immediate and direct consequences of the capture, and of the control thereby taken of the property of the assured. Among these must be reckoned the condemnation and sale at *Calcutta;*for it will not be pretended, I presume, that the assured would be restricted, in their evidence, to events preceding the 6th of June, 1809, in proving a partial loss by capture.

It is, then, evident that the condemnation and sale at *Calcutta*are parts of the same loss, which commenced and was incurred when the property insured was captured on the coast of *China;**13and the question now to be determined is in all respects the same as the question determined in the action upon the other policy, where the *Union Insurance Company*were charged with a total loss That determination was upon the ground that the loss, constructively total at its incipient state, according to the first intelligence, continued total by consequences which are necessarily to be referred to the same disaster.

The rule recognized in several decisions, (2) and never controverted, that I know of, that the insured has the right of abandoning so long as the loss continues total, applies in the case at bar. (a) That the plaintiff did not abandon upon the first intelligence, was favorable to the insurers. His delay has not operated to their prejudice. The intelligence upon which he finally abandoned left the vessel and cargo in the possession of the captors: the voyage was then lost beyond any hope of restoration.

But according to the decision in the case of *Mullett*vs. Shedden, cited in the argument, an abandonment is not essential to the title of the plaintiff in this case. His loss, after the condemnation and sale, had become actually total * by the entire [ * 6 ] change of property, and inevitable loss of the voyage insured — direct consequences of the capture on the coast of *China,**(b)*

Upon the whole, we have no doubt of the plaintiff’s right to demand a total loss, after abandoning, or offering an account of salvage, upon intelligence of the condemnation and sale of the property insured, notwithstanding his election not to abandon upon the first intelligence. This is agreeable to the decision in the former action. The loss proved in this case is the same in every material circumstance, and the right of the plaintiff to demand as for a total loss upon the policy in the case at bar is the same.

*Judgment on the verdict*

(a)

**A capture gives a right immediately to abandon. —2 *Marsh. Ins*568, ed. 3d

(2)

*Marsh.*489.

(a)

**The notice of abandonment must, be proved to have been given within a rea sonable time after the loss has been heard of, allowing to the insured a convenient opportunity for examining into the circumstances which render abandonment expedient or otherwise. — *Reed*vs. Bonham, B. & *Bingh.*147. — *Gernon*vs. *Royal Ex. Ass.*1 *Holt, C.*49. — 6 *Taunt.*383 — *Mitchell*vs. *Edis, D. & E.*608. — *Barker*vs. Blakes, 9 *East,*283. — *Mellish*vs. Andrews, 15 East, 13. *—Kelly*vs. Walton, 2 *Camp*155. *—Anderson*vs. *Royal Ex. Ass. 7*East, 38. — *Aldridge*vs. *Bell,*1 *Stark.*N. *P. C.*498. — *Hunt*vs *Royal Ex. Ass.*5 *M. & S.*47. — *Hudson*vs. Harrison, 3 *B. & Bingh.*106 — A delay of three weeks, or a month, or even nine or five days after the insured have received intelligence of a loss, and become acquainted with the state of the property, is unreasonable, and will prevent the insured from afterwards giving notice of abandonment with any effect. — *Hughes's Ins.*423.

(b)

*Mellish*vs. Andrews, 15 *East,*13.— *Cambridge*vs. Anderton, 2 *B. & C.*691. — R. & *M.*61. — 4 *Taunt.*803, 805, 806. — 3 *Br. & B.*151.