The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-01-31

when the capture in queftion was made, the
U. S. acknowledged the right Of the Britiih to
detain their veffels for the purpsfe ola reafona-
bic fearch. The bare taking of the vefIel, there
fore, could by no means conftitute a lofs and
1t under fufpicious circumstances, fhe fhould be
carried into port to afford an opportunity for
complete invefigation, perhaps even that
ought not of itfclf to be confidered as a total
lois. On this, however, give no opinion.
But the captor, having carried the vefieI into
port and completed the examination of the
cargo and papers, innead of difcharging her,
proceeds to libel her as prize, think the lofs
10 complete. The property is no longer fub-
reafonable that he fhould wait the event of iu-,
dicial proceedings, whichmay continue foryears.
The cafe of an embargo is lefs ftroug--becaufe
there the conifcation of the property is not in
tended, and a temporary interruption of the
voyage all that in general is to be apprehended.
Yet the afured is not obliged to wait the reful.,
but may abandon Immediately on receipt of in
teiligence,o f the embargo.-Net many judicial
deci6ons have been produced on the point in
queftion. Where principles are ftroug it is fuf-
hcicnt that there have been no decifions to the
contrary. 1t appears, however, that in the
Rate OF New-York the precife point has been
determined. In the cafe of Mumford VS..
Church, decided in the fupreme court of New
York, July term, 1893, the aHured recovered
for total lofs where there was a captor, car
rying into port, and libellinr by Britifh cap
tor, although after the abandonment the proper
ty was reftored. It's necefiary that fone ge-
neral rule fhould be ettablifhed; fomc line
drawnb by which the atiured may know at what
time he has right to abandon. In mott cafes
the voyage is extremely injured by proceedings
IN the court of admiralty, and the event is
doubtful. For it cannot be denied that of late
iuch trange occurrences have taken place i'm
war and politics as have very much affected the
principles and practice of foreign courts of ad-
miralty. Whatever may be faid of the law of ma.
tnre and nations aud the immutabe principles
OF juftice, we fee very plainly that the courts
obey the will Of the fovereign power of their
country; and this will hufuates with the cir
cumitances Of the times. am therefore of OPT
mon, that both by the words and fpirit of a po-
hey OF infurance, the aGured may abandon
when he receives Intelligence of the libelling of
his vefIe.
Q. This brings NE to the confederation of the
iecond point. Has any circumit anoe occurred
(which limits the plaintiff 10 recovery for on
ly partial lois ~
1t is contended that fuch an event has occur
red: that the veifel was acquitted by decree of
fhe court of admiralty that after acquittal ihe
proceeded on her voyage, and that one Of the
owners was on the fpot and knew of the &C
quttal. do not think there is much weight
In the circumftance of one of the owners being
on the fpot becaufe the general agent of all
the owners was in Philadelphia. This general
agent effected the nfurance, and conducted all
the buhnefs OF the under writers, and the own
er who was in New Providence, gave him in
teligence of what occurred from time to time,
and by no means intended, from any thing that
appears, 10 refrain him from making an aban-
Comment. 1t is true that the veGel proceeded
on her voyage after fht was reitored; but it is
not Rated, nor can the court prefume, that
any OF the owners acted in a manner inconlif-
test with the abandonment made by their a.
gent. 1t was proper at all events, to purfue
the voyage for the benefit of whoever might be
interefted in it.--Thisi is the ufual practice,
and practice authorized by the policy, and
very much for the advantage of the underwri-
2 ters.
The only difficulty in the cafe before the
court aries from this circumftance that be-
fore the action was brought the vefiel was refto-
red, and even at the time of the abandonment,
there was decree of acquittal, although refi-
tuition does not appear to have been actually
made till fome days after. The council for the
defendant have relied much the opinion of
Lord Manifold in the cafe of Hamilton y.
Mendez, to eRablih this principle, that po-
Icy of infurance. being in its nature a contract
of indemnity, the plaintiff can recover no more
than the amount of his actual lofs at the COM
mencement of the action. There is no doubt Of
the foundnefs of the principle: l mean that
policy is contract of indemnity. The only
eueftion is, at qvbat period, the rights of the
parties are to be tefted by this principle whe-
ther at the time of abandonment or ofthe COM
mencement of the action. / have coniidered
attentvely the cafe of Hamilton v. Mendez. 1t
NUT be obvious TO every one that the deCi6on
in that cafe was perfectly right. 1t was fimpy
this that man fhall not be permitted to aban-
don and recover for total lofts, when he knew
at the time of his offer to abandon, that his pro-
pertY which had been loft, was reftored and
the voyage very little injured. But in reading
the opinion of Lord Manifold, we find want
of accuracy with which that great man was fell
dom chargable. Some times it appears as if
he thought the period for fixing the rights Of
the inlurers and injured was the commence
plent of the fut tome times the time of aban-
ment and fome times he even feems to have ex-
tended his ideas 70 far as the time of the ver-
did. But finally he explicitly declares, that
he decides nothing but the point before
iim.--He feems to have felt little fore at
the improper application Of fome general ex-
preiIions ufed 10y him in the cafe of COTS VS..
Withers. Anxious TO cut off all pretence for
doing the fame in Hamilton VS.. Mendex, he has
taken too much pains to avoid the pofiibility of
INTERPRETATION. Hence his argument conf
dered in the whole is not altogether clear and
couIiaest. Upon the whole of this cafe Of Ha-