[*The Supreme Court of New-York have determined the following points:

1st. That where there is a warranty of neutral property, and a capture and condemnation as prize, it shall be presumed to be on the ground of enemy's property, and in all cases the sentence shall be conclusive:

2d. Where there is a condemnation for particular reasons mentioned in the sentence, the Court will not inquire whether the reasons were good or not, but the sentence shall be conclusive, both as to the law and the fact:

3d. Where the condemnation is, as being contraband, where there is the usual clause of warranty, against loss by trade in contraband, the Court will not inquire whether the article be contraband or not; the sentence shall be conclusive. January 31, 1801.]

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Supreme Court of the United States.

FEBRUARY TERM, 1808.

Marshal, Plaintiff in Error, v. The Delaware Insurance Company.

Error from the Circuit Court for the District of Pennsylvania.

INSURANCE-ABANDONMENT-TOTAL OF PARTIAL Loss. The real state of the loss, at the time when the abandonment is made, is the proper and safe criterion of the rights of the parties. When a final decree of restitution has been awarded, the technical loss ceases to be total, and the underwriter is only answerable for a partial loss.

THIS

HIS was an action on several policies of insurance, in which the following case was made for the opinion of the Court, with an agreement, that it should be considered as a special verdict, for the purposes of a writ of error.

The plaintiff, a citizen of the state of New-York, and residing in the city of New-York, by his agent, F. Dusar, on the 7th of May, 1806, caused insurance to be effected on the cargo, freight and brig Rolla, (all owned by him) Samuel Clapp,

master.

On the 28th May, 1806, the vessel, while proceeding on her voyage, was captured and taken possession of, as prize, by the French privateer schooner, Napoleon, and carried into Lemon, an out-port of Samana. The captors there committed great pillage of the cargo. The Rolla remained at Lemon four or five days, and was then carried round to Samana, under the charge of a prize master, where further pillage was committed. The captors libelled the vessel and cargo in the inferior tribunal, at the city of St. Domingo, where the said vessel and cargo were acquitted on the 7th July by the said tribunal. From this decision there was an appeal by the captors to the superior tribunal at the said city of St. Domingo, where the said

vessel and cargo were again acquitted, and restitution awarded, on the 9th day of July.

" Restitution was actually made to the captain of the said brig Rolla, of the vessel, with the remainder of her cargo, on the 19th July, 1806, as appears by the proceedings of restitution.

" The said captain had a survey made, on the same day, to ascertain the loss and damage from pillage, &c. at the time and manner stated on the survey; and, on the 30th of July, proceeded on the voyage, originally intended to St. Jago de Cuba, where he arrived on the 6th of August. The remaining part of her cargo was there sold; and a part of the proceeds invested in a return cargo, which was sent by the Rolla, under the command of the mate, to New-York; and the rest of the proceeds was invested in bark, and brought home in the Jane, by the captain. The said return cargo arrived at New-York, on the 15th of October, 1806, and, on next day, the plaintiff wrote to his agent, F. Dusar, informing him thereof, and directing him to give the information to the insurers, which was accordingly done by the said F. Dusar; but the insurers refused to have any thing to do with the said property, or to give any directions as to the disposal of it. Whereupon the plaintiff sold the said property, for the account of the underwriters (but without their assent) except some bark, which yet remains in possession of the plaintiff unsold.

Intelligence of the capture was received at New-York, by the plaintiff on the 17th July, 1806; the plaintiff wrote a letter on the 18th of July, to his agent,. F. Dusar, directing him to abandon the freight, vessel and cargo, to the insurers; which letter was received at Philadelphia, by the said F. Dusar, on the morning of the 19th of July; an abandonment was made to the insurers on the same morning, and a letter communicating the fact to the plaintiff was sent by the mail, which was closed at Philadelphia, at twelve o'clock of the same day."

Upon the documents referred to in the case, and making, by agreement, a part of it, these additional facts appeared: "That the same procès verbal which sets forth the act of restitution, also contained the particulars of the survey of the cargo; that the notary and parties went on board of the brig Rolla, to make restitution at nine o'clock, on the morning of the 19th of July; and that the restitution, survey and proces verbal were concluded at one o'clock in the afternoon of the same day." It also appeared, " that the cargo was valued, in the policy at 22,500 dollars; that the proceeds of the sales of that part of the cargo, which was sold at St. Jago de Cuba, amounted to 17,018 dolls. 82 cts.; and that the gross value of the property pillaged or lost, (4833 dolls. 65 cts.) together with the expenses attending the capture, (about 1380 dolls.) amounted to 6263 dolls. 65 cts. which the underwriters were always willing to pay, as an average loss.".

The question submitted to the court was, whether the plaintiff was entitled, in this case, to recover for a total, or only for a partial loss? And, after argument, Washington, Justice, gave judgment, in the Circuit Court, for the defendants, that they were only answerable for a partial loss; upon which the present writ of error was brought.

The cause was now argued by Messrs. Ingersoll and Hopkinson, for the plaintiffs in error; and by Messrs. Rawle and Dallas, for the defendants, upon these general grounds of inquiry, in fact, and in law: 1st. Whether, in point of fact, the act of restitution, or the act of abandonment was first completed? 2d. Whether in point of law, the peril of the captor ceased, and the vessel was in safety, when the decree of restitution was affirmed by the Court of Appeals, on the 9th of July? And 3d, Whether the actual state of the loss or the state of the information, at the time of abandonment is to determine the right to recover, in the present petition?

The opinion of the Court was delivered by Marshall, Chief Justice, in which it was expressly adjudged, first, "That the real state of the loss, at the time of the abandonment made, is the proper and safe criterion of the rights of the parties." And 2d, "That when a final decree of restitution (from which, it is admitted, no appeal lies) has been awarded, the peril is over; and the technical loss ceased to be total."

The judgment of the Circuit Court was accordingly

Circuit Court of the United States.

PENNSYLVANIA DISTRICT.

APRIL SESSIONS, 1808.

Murray and Mumford v. Insurance Company of Pennsylvania.

INSURANCE. PARTIAL LOSS. ABANDONMENT. Where a vessel was insured by a valued policy at 6000 dollars, and there was a prior insurance for 4000 dollars, in the event of a partial loss, the assured was allowed to recover, on the second policy, an average loss and return premium on 2000 dollars; because, to that amount, the vessel was uncovered after the first insurance, and if property be undervalued in a policy, the merchant himself incurs the risk of the deficiency.

T

HE cause came on to be argued on the following facts: The plaintiffs, on the 21st of October, 1803, effected insurance on the ship Hope, from Gottenburg to New-York, in the New-York insurance office, to the amount of four thousand dollars, valuing her at four thousand dollars.

On the 20th December, in the same year, they effected insurance on the same ship and voyage, to the amount of four thousand dollars, valuing her in that policy at six thousand dollars, in the office of the defendants, the insurance company of Pennsylvania.

At the time of effecting this last insurance, the defendants had no notice of the prior insurance effected at New-York.

The real value of the ship, when she sailed from New-York, exceeded six thousand dollars.

A partial loss took place by one of the perils insured against; and the plaintiffs settled with the New-York company, and received from them an average, calculated upon the four thousand dollars by them insured.