Maryland Insurance v. Bathurst

Doksey, J., delivered the opinion of the court. The first exception on the part of the Insurance Company, relative to the insufficiency of the preliminary proof having been abandoned, we are called to the consideration of the question raised on their second bill of exceptions; viz. Is the copy of the record of the prize court of Porto Rico competent evidence, “for the purpose of showing that the original papers, of which copies and translations, purporting to be inserted in said record, were on board the said ship Budget, at the time of her capture, and were acknowledged to have been so on board by the said Meany, the captain of said ship, in his examination upon oath, before the said Prize Court?” With the decision made by the county court on this question we fully concur. The sentence of condemnation of the foreign prize court is evidence of the facts, which it purports to decide, in an action on a policy of insurance on the thing condemned ; and was conclusive evidence thereof, until the act of assembly of 1813, ch. 164, reduced it to the character of mere prima facie proof. But the proof upon which such sentence may have been predicated, is not, per se, admissible in such collateral action. The utmost efficacy that could be given to it, would be, to permit it to have the same effect, as if taken in a former cause between the present litigant parties. When viewed in that light, it is clearly inadmissible, there being nothing in the record to show the impracticability of procuring in the usual way, the testimony of captain Meany, or the ori — 221 — ginal papers referred to, or the testimony of the witnesses, who deposed that such papers were on board the Budget. The competency of the evidence offered, through John D. Daniels, forms the subject of our examination in the third bill of exceptions. And its offer is predicated upon the assumption, that a breach of blockade, was one of the grounds of condemnation, alleged in the sentence. The objection urged to the testimony is, that Thompson Bathurst having given the sentence in evidence to the jury, could not subsequently be permitted to contradict, by the examinaton of witnesses, any of the facts which it professes to establish. There would be a semblance of reason and plausibility in this objection, if Thompson If Bathurst had offered the sentence as evidence of the truth of the allegations on which it professes to be founded. But the reverse is the fact; it was offered for no such purpose. On the contrary, the offer under the circumstances in which it was made, distinctly announced to the court, and the Insurance Company, that those allegations, as far as they presented any barrier to the right of the plaintiffs below to recover, were denied, and would bo disproved. The only object in producing the sentence, other than that of sustaining the abandonment, was to prove, that by the act of a foreign Prize Court, the insured had been deprived of all property in their ship. There is therefore, no inconsistency, no violation of the policy, nor any principle of law, in the sentence, and testimony of Danels, being offered as evidence by the same party. The sentence was the cause assigned for the abandonment, and must be proved ; or the abandonment would be a nullity, and give no right of recovery as for a total loss. But say the counsel for the Insurance Company, there was no necessity for producing in evidence the sentence of condemnation, as proof of capture was sufficient. Does the law warrant this assertion ? The plaintiffs abandoned, not because of the capture, but of the condemnation. Admitting they were notified of the capture at the time of its occurrence, of which there is no evidence, they — 222 — may have hoped, that the ship would have been released; and were therefore unwilling to relinquish to the insurer, the profits anticipated from the enterprize. Were they bound to have done so ? Assuredly not. They waited the event, and abandoned on the 'ground of condemnation. If in a reasonable time after notice of capture, they failed to abandon, they lost the privilege of doing so, and could not have recovered for a total loss, on any abandonment for that cause subsequently made. But the unanswerable objection to the argument is this ; that no abandonment was made on the ground of capture, and consequently, the proof thereof would not entitle the insured to recover for a total loss. The principle is not now to be controverted, that in recovering for a total loss, founded on an abandonment, you must prove as the basis of your action, the cause assigned in the notice. Failing to do this, you cannot sustain your pretensions by proving another cause, which if made the subject of abandonment, would have warranted a recovery. The production of the sentence of condemnation, is therefore an indispensible link in the chain of testimony, requisite to the prosecution of a suit for a total loss, grounded on such an abandonment as that presented by the record before us. If the objection to the testimony be a sound one, Thompson fy Bathurst were on the horns of a dilemma. To entitle them to recover they must produce the sentence, and the production of the sentence rendered a recovery impossible. To sanction the objection insisted on, would be judicially to repeal the act of 1813, and to give to the sentences of foreign Prize Courts, that conclusiveness of which by the act of 1813, they had been divested. That act declaring, “ that no sentence, judgment, or decree, final, or interlocutory, of any judge, court, board, council, or tribunal, having or exercising municipal admiralty, or prize jurisdiction, without the limits of the United States, or its territories, shall be conclusive evidence in any case or controversy in the courts of this — 223 — State, of any fact, matter or thing contained, stated or expressed, except of the acts and doings of such foreign judge, court, board, council, or tribunal.” In the aspect in which this question was presented to the county court, their disposition of it is in accordance with the views of this court. But we deny the assumption upon which the objection was founded; viz: that the sentence disclosed a condemnation for the breach of blockade. The sentence states no such fact. It alleges that La Güira, the port of destination of the Budget, was on the 23d of December, the day of the condemnation, a blockaded port; but not that it was so at the time of the capture, or the attempt to enter it. The testimony of Daniels was on that account wholly irrelevant to any matter at issue in the cause; and the county court, on that ground erred, in over-ruling the objection to its going to the jury. But this error, being in its nature wholly immaterial, and having no tendency to influence the minds of the jury, in forming their verdict upon the matters really in issue before them, forms no ground lor the reversal of the judgment rendered on the verdict. The first branch of the first prayer, in the fourth bill of exceptions, is, “that the terms of the order for insurance and the policy, in this case amount to a warranty, that the ship Budget was a neutral ship, bound upon a mercantile voyage, with permission to carry some articles contraband of war, but in every respect to be employed and navigated as a neutral ship.” To sustain this idea of warranty, the following endorsement on the order of insurance is relied on: viz: “although our advices give us no reason to believe there will he any articles contraband of war on board the ship Budget, still, as we wish to be covered against all possible risk, we request your reconsideration of the written application including articles contraband of war.” This, say the counsel for the insurers, is equivalent to an express asseveration of neutrality, as articles contraband of war have neither meaning nor existence, but in reference to a neutral ship. Suppose this indissoluble connection, between arti — 224 — cles contraband and a neutral ship be conceded; does the inference of warranty of neutrality in this case, necessarily follow? Can it be denied, that the original order covered belligerent as well as neutral risks? Was the endorsement on the order, intended to reduce the premium, by diminishing the risks insured against, to those of a neutral character only ? Was it so understood by the underwriters? Their continuing to demand the same premium is unanswerable proof to the contrary. Do the terms of the endorsement intimate such an intention ? So far from it, they reiterate the contrary by renewing the same offer, and declaring their “wish to be covered against all possible risk.” Do they in express terms, or by necessary inference assert, that there will be articles contraband of war on board ? The reverse is the truth ; they state that their advices give them no reason to believe that such will be the fact; but should such a contingency happen, they seek by insurance an indemnity against it. In other words, the order in effect declares the Budget may be belligerent property; if so, we require protection against all perils, incident to her, in that character. Or she may be in point of fact, neutral, in that event, we ask an indemnity against every casualty, not explicitly excepted, which may befal her as such. It neither asserts her to be the one, nor the other, but provides an exemption from loss, let her condition in that respect be what it may. That the original order, with the terms “against all risks,” and “for account of all whom it may concern,” covered both neutral and belligerent risks, has been admitted, and could not be denied. Had it then been the design of the second offer, to reduce the liabilities of the underwriters to neutral risks only, and obtain a consequent reduction of the premium of insurance, it would not have omitted an express assertion or warranty of neutrality. In the rejection of this part of the said first prayer, we therefore concur with the county court. By the remaining part of this first prayer, in the third bill of exceptions, the instruction required of the court, — 225 — was, that “ if the jury find from all the evidence, and admissions in the cause, that the ship Budget, on the voyage insured, was entirely laden with munitions of war, and that the same were destined for the service of the Colombian government at La Güira, partly to arm a vessel of war called the New Orleans belonging to the said government, and in part to establish a depot of arms at La Güira for the service of the said government; or that if said ship was to be offered for salo to the Colombian government whenever she might be wanted; or that the said Meany, captain of the Budget, was to be employed in the naval service of said government; or that a breach of blockade was committed by the Budget, as set forth in the sentence of condemnation of the Prize Court of Porto Rico; that then the policy is violated, and the plaintiff is not entitled to recover.” In Buck & Hedrick vs. The Chesapeake Ins. Co. 1 Peters, 159, the Supreme Court of the United States have declared, that “ courts of justice are not bound to modify or fashion the instructions moved for by counsel, so as to bring them within the rules of law.” If it wore otherwise, instead of deciding the question submitted as presented by the counsel, they would in fact themselves become counsel, by raising the question, which as a court they must subsequently determine, and by analogy in every case it would be error, to reject a prayer asking more than the principles of law would warrant, unless at the same time the court gave an instruction, as favorable to the interest of the party praying, as if they were responding to a prayer aptly formed to elicit such instruction. The law, for wise reasons, imposes upon the court no such double and inconsistent duties of counsel and judge. They may, if they see fit, content themselves with a simple refusal of any prayer not sanctioned by the rules of law. The court below were therefore justified in an unqualified rejection of the said remaining part of the first prayer, because they were required to give it, if the jury were satisfied of the existence of any one — 226 — of four enumerated alternatives; one of which, (in relation to a breach of blockade,) was not a question which the court could have submitted to the finding of the jury, for the reasons stated in our opinion on the second bill of exceptions. But according to our view of the subject, the court would have been right in refusing the instruction prayed, though a separate prayer had been framed on each alternative. ■ In the case of Buck & Hedrick vs. The Chesapeake Ins. Co. before referred to, the Supreme Court say, “ a knowledge of the'state of the world, of the allegiance of particular countries, of the risks and embarrassments affecting their trade, of the course and incidents of the trade on which they insure, and the established import of the terms used in their contract, must necessarily be imputed to the underwriters.” “ No underwriter can be ignorant of the practice of neutrals to cover belligerent property under neutral names, or of the precautions ordinarily resorted to, that the cover may escape detection.” Neither can the 'Maryland Insurance Company in this case, be deemed uninformed of the practice of chartering neutral vessels at London, and elsewhere, by the agents of the Spanish South American governments, for the transportation of military stores, and troops; nor of such vessels being sold to those agents, deliverable in South America, for the purpose of being there used as national cruisers. These were facts of universal notoriety in the commercial world, at the time of the insurance on the Budget; are a part of the public history of that epoch, against the light of which this court cannot shut their eyes, and of which the law imputes knowledge to the appellants. Nay, it is more than probable, if not apparent, that these were the belligerent perils, mainly contemplated by the parties in their compact of insurance; and against which the underwriters especially designed to indemnify. It is admitted on both sides, that the Budget, until her arrival at London, was well known as an American ship; — 227 — and owned, commanded, and navigated as such. The letters of Meany, the captain, to his owners, communicated to the underwriters, and on which the policy was effected, informs them of what? That he had sold the ship? No. That he had “chartered” her to go “to one of the following ports in the Colombian government—La Güira, Sania Martha or Carthagena.” And upon these facts, with the aforementioned knowledge of the usage of neutrals in that trade, the underwriters were called on to insure the ship, against all possible perils that could betide her, either in a neutral or belligerent character. The asking of such an insurance, is of itself demonstration, that protection against dangers ordinarily incident to neutrality, was not all that was desired. To suppose that for such a limited liability, they offered (as they did,) more than double the premium necessary to the attainment of such an object, would be to impute to them a species of senseless prodigality, never before deemed applicable to an American merchant. The idea of the enhanced premium being paid on account of a bona fide regular belligerent ownership, is repudiated by the letter of Meany, on which the insurance company acted, when the policy was underwritten. That announced the chartering, not the sale of the Budget. What kind of belligerent risks were they then, for which, they designed to become responsible? The strong probability, if not the natural presumption is, that they assumed the liability for those very contingencies, for which they are now called upon to answer; and which were contemplated by both insurer and insured, from their knowledge of the character of the trade by neutrals from London to Colombia. No other rational motive could have prompted Thompson &f Bathurst to have sought such an insurance ; and the facts in the cause warrant the assumption, that the underwriters intentionally assumed the responsibility to the full extent into which they were invited to enter. Being uncertain, whether it could be called a neutral or a belligerent risk; where the ship, though in fact neutral, was in con tern — 228 — plation of law regarded as belligerent; Thompson and Bathurst required not only a eover, to neutral and belligerent ownership, but also against “all risks,” or “all possible risk.” Thus manifestly seeking to obtain security against other losses, than those which usually attend neutral and belligerent ownership. And such must have been the understanding of the insurance company, from the knowledge with which they are affected. In this view of the subject, we are more than sustained, by the case of Goix vs. Knox, 1 Johns. Cases, 340; where it is said, “the insuranse is against all risks.” This expression is vague and indefinite; but if we allow it any force, it must be considered as creating a special insurance, and extending to other risks than are usually contemplated. We are inclined to give it a liberal construction, and apply it to all losses, except such as arise from the fraud of the insured. “The terms used are sufficiently broad to comprehend every other loss.” This doctrine was affirmed in Skidmore vs. Desdoity, 2 Johns. Cases, 77. We have so far, examined the effect of the order for insurance, in reference to the question of warranty of neutrality ; and in doing so, have regarded it as incorporated in the policy. By the second prayer in the third bill of exceptions, the county court were required to give the same instruction to the jury, which was applied for in the first, except that the order for insurance in the first prayer was assumed to operate as a warranty, in the second as a representation. If when regarded as a warranty, the order for insurance, as we have endeavored to show, can afford no relief to the appellants, there is no pretext for an attempt to invoke it to their aid, when viewed in the light of a representation. We approve of the county court’s refusal, to grant the second, third and fourth prayers, for the same reasons which induced us to sanction their rejection of the first; and we sustain them in their denial of the fifth and sixth prayers upon the grounds, stated by us in the examination — 229 — of the second bill of exceptions. We also concur in opinion with the county court, in the rejection of the seventh, eighth and ninth prayers ; believing that the assured wore under no obligation to communicate existence of those facts, the concealment, or non-disclosure of which, is relied on as the ground for vacating the policy. In our remarks on the first prayer, in the third bill of exceptions, we have so construed the contract of insurance, as to fix upon the underwriters a liability for losses arising from the transportation of hostile stores, troops, &c. the facts alleged as unduly-concealed. The obligation to disclose is limited to such facts, as would vary the risk, or nature of the contract. Mo communication need be made, of what is necessarily implied by the contract. Where the necessity of disclosure, when the insurers agreed to run the hazard of the very peril concealed? If the underwriters have assumed the risk, to which the ship may be subjected in transporting a cargo of hostile stores, can it he requisite, that they should be informed, that such a cargo is to be laden on board the ship? On an assurance for account of whom it may concern, is the assured bound to inform the assurer, that there exists a belligerent owner, or twenty of them, if there be so many? Assuredly not. If the insurers designed to assume a mere neutral risk, (of which we cannot indulge a momentary belief,) they were not led into this error by the conduct of the insured. Every thing, short of express information to the contrary, was disclosed to them. They were told, that insurance was required “for all whom it may concern,” against “all risks,” or “all possible riks;” they were aware of the trade carried on by neutrals from London to Colombia. If under such circumstances, they neither charged an adequate premium, nor sought the further information requisite to lead their judgment to a just estimate of their responsibility, they must bear the consequences of their own misprision. Having disclosed our views upon the exceptions taken, in behalf of the underwriters, we are now brought to the ex230 animation of the bills of exceptions on the part of the assured, which present the question, whether the total loss claimed, was converted into a partial loss, by Meany’s purchase of the Budget for account of the owners, and their subsequent ratification thereof, as stated in the bills of exceptions. To sustain the affirmative of this proposition, in addition to some American authorities on the subject, that part of Ld. Mansfield’s opinion, in Goss vs. Withers, 2 Burr. 694, has been much relied on, which declares, that “the insurer-runs the risk of the insured, and undertakes to bear the loss actually sustained, and can be liable to no more. So that if after condemnation, the owner recover the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the insurer must bear the loss so actually sustained.” This may be sound doctrine in England, where it is held, that the right to recover for a total loss, is not made absolute by the state of facts, on which the abandonment is founded, continuing to exist at the date of the abandonment, but is dependent on subsequent events. In this country, a different rule prevails. The right to recover of the assurer, for a total loss is complete, if the loss which is its basis, continue at the time of the abandonment, and of this consummate right or privilege, the assured cannot, without default, be deprived, but by their consent expressed or implied. Like other privileges, it may be waived by the insured, either in express terms, or by their acts inconsistent with its existence. If after capture and abandonment, but before condemnation, a ship be ransomed by the captain, or retaken by the crew, or be recovered and delivered to the owners, who claim, and use her as their own, they possess her under no new title or right of property; their acts are the assertion of their original ownership, and therefore inconsistent with the abandonment, which if sustained, casts the right of property on the insurers. Both cannot therefore stand together; the necessary inference is, that the insured, by the resumption of their ownership, surrendered their rights — 231 — under the abandonment. But where a condemnation has taken place, the assured, apart from all statutory regulation on the subject, is divested of all property in the ship, and in it, if purchased by themselves, or their agents, they acquire a new and independent title to which their subsequent acts of ownership are imputable, and not to their original proprietary rights. An intention to waive the abandonment is not the natural inference from their conduct. There is no inconsistency in their claiming for a total loss under the abandonment, and asserting the right of property under the newly acquired title. As against all the world, save the underwriters, the assured as purchasers, have an incontrovertible title. And it is conclusive even against them, if they consented to its acquisition, or have waived the light to impeach it. We are aware, that this question has been apparently otherwise decided in some of the United States, and especially in New York; where in the honest zeal for the protection of insurers, it is respectfully suggested, they have stretched their doctrines upon this subject to an unjust invasion of the rights of the insured, and gone beyond what the policy, or analogies of the law would sanction. The principle contended for in the argument, as fairly deducible from the New York cases is, that the acceptance by the insured for his own benefit, of a purchase of the thing insured, made by the captain for account of his owner, is per se, a waiver of the abandonment; and converts the otherwise total, into a partial loss. To this universal and unqualified proposition, we cannot assent. Whilst we admit, that the law has wisely erected around insurers, an impenetrable harrier to fraud and injustice on the part of the insured, we insist, that in doing so, it has gone no further than the necessity of the occasion demanded, and, that it has not been unmindful of providing a like protection for the insured, against practices of a similar character emanating frarri the insurers. That whilst uberrima jides is exacted of the insured, a like course of conduct must be practiced by insurers. That to neither — 232 — party, is it permitted to do acts, the natural tendency of which is injustice, and imposition on the other. We freely concede, that neither the insured in person, or through the instrumentality of others, either before, or after the condemnation of the thing insured, possesses, where an abandonment has been made, an unqualified right to become its purchaser, for their own benefit. Such purchases, after condemnation, where a total loss is claimed, are ever subject to this qualification ; that the insurers have the right or privilege, if they see fit, to exercise it within a reasonable time after a knowledge of the purchase, to elect to become themselves the purchasers; and if the insured refuse to surrender the bargain, the total is converted into a partial loss; or in other words, the insurers, by their election, having made the thing insured their own, have a right to deduct from the plaintiff’s claim, the amount of the insurance, first subtracting therefrom, the quantum of loss actually sustained' by the insured, by reason of the perils insured against. By an abandonment, the rights of the underwriters relate back to the date of the disaster, not of the abandonment. All intermediate acts of the captain, and agents of the insured, inure to the benefit of the insurer. Any purchase therefore made by such captain or agents, no matter for whose account, if in due season adopted by the underwriters, becomes their own. This view of the subject, so consonant to reason, justice, and policy, is not without support from the decisions from New York, which have been relied on by the Insurance Com pany. In Robinson & Hartshorne vs. United Ins. Co. 1 Johns. 611, Woodworth, of the Court of Errors of New York, says, “I subscribe to the correctness of the rule, that the insurers ought to decide immediately after notice, whether they will avail themselves of the purchase made by the agent.” In Jumel and Desobry vs. Marine Ins. Co. 7 Johns. 426, Chief Justice Kent, in delivering the opinion of the court, speaking of the repurchase of a vessel by the captain, for the benefit of the owner, says, the insurers — 233 — Mi at':; nothing to do with the purchase of the vessel, unless ■at their election, is a genera! principle of insurance, &c.” and in Ogden vs. Fire Ins. Co. 10 Johns. 180, the court, in relation to a purchase made by the assured after abandonment, state, that ísif he persevere in the claim for a iota! loss, he must surrender to the insurer the benefit of the purchase; and this rule is founded in sound policy, to prevent fraudulent speculations upon a loss, at the expense of the insurer.55 The principle of law upon this subject as recognised by us, gives protection to both parties, and is founded on equal and reciprocal justice, as far as the nature of the case will admit of. Adopt the rule as contended for by the Insurance Company, and you deal unjustly by Thompson <§• Bathurst, by rendering them without their consent purchasers of the ship; not at the price they stipulated to pay, but perhaps at double that amount; at her valuation at the port of departure, not her value at the port of purchase. You also inflict a serious injury upon underwriters, by depriving them of all chance of being restored to the property condemned, or its value, at a reasonable salvage, through the instrumentality of the insured, or their agents, who would never become purchasers where no ray of hope was left them, of being permitted to enjoy any benefit by the purchase. It is alleged, that unless the assured committed a fraud upon the underwriters, by an excessive valuation, they have no just ground to complain of the exercise of the right now claimed by the Insurance Company. But is the allegation well founded? Is it just, that the assured should receive their ship at the port of condemnation, at her full value, where she may be so surrounded by perils and ■difficulties, as not to be worth one-half of what she was, at the port of departure ; or would have been, at the port of destination, to which her safe arrival had been guarantied ? If in the navigation of the Budget from Porto Rico to Baltimore, or in attempting to complete the voyage insured, — 234 — after the purchase, she had been lost by any of the perils insured against, could Thompson fy Bathurst have recovered, not only the entire valuation in the policy, but in addition thereto, the purchase money paid for the ship ? Or indeed any thing but the loss, which had accrued to the time of the purchase? Unquestionably not. Is there then no ground for complaint, no hardship in the case, that Thompson of Bathurst after paying a full premium of indemnity for an entire voyage, should not be covered by the policy, for more than one-half of it ? That by legal presumption, they are to be held, as restored to their property, which by necessary implication revives the policy for the voyage; and yet,that they are entitled to no further protection under it? The law raises presumptions to subserve the ends of justice ; never to work such absurdity and injustice as would follow the presumption now insisted on. That the election of the assurer to adopt the purchase, should be made without delay, after the knowledge of the sale, is so forcibly enjoined by the plainest dictates of reason and justice, that it can hardly be necessary to invoke, either reason, argument, or illustration, to its support. He surely ought not to be permitted to lie by, and speculate on contingencies, at the risk and cost of the assured. If the vessel arrive in safety from the port of sale, having evaded the perils by which she was beset, and turns out upon minute inspection to be of greater value than the price paid for her, or if she has earned freight, or been profitably employed, or there has been an improvement in the price of ships, then will the assurer claim the advantages of the purchase. But on the other hand, if the vessel should be unprofitably employed, lost, damaged, or from any other cause, become of less value than when sold, ¿hen would all the burthen be cast on the shoulders of the insured. With the re-purchase it would be alleged they had no concern. This would be playing a safe game for the underwriters, but a ruinous one to the assured, and wholly inconsistent with that frankness and fair dealing which pervades every branch of insurance law. This — 235 — dictum of Ld. Mansfield in Goss and Withers, to the extent now attempted to enforce it, has not been confirmed by any subsequent English adjudication: on the contrary, it is in direct opposition to the law, as admitted by Ld. Kenyon, and the counsel on both sides, in the case of McMasters vs. Shoolbred, 1 Esp. Rep. 237. But concede for the moment that we are in error in the views we have stated, and that the general rule as established in New York be correct; viz: that the insurers have a right to regard a purchase of the subject matter of insurance, by the insured or their agents, after its condemnation, as a waiver of the abandonment, and a conversion of the total, into a partial loss. If the insurers agree that such purchase shall not be a waiver of the abandonment, and the assured unequivocally evince his intention not to waive it; or if by the acts of both parties, it plainly appears, that it was not the intention of either, that it should he so regarded; would the abandonment then be waived ? Certainly not. The right of the underwriter so to regard it, is of that class of rights, which may be waived, or insisted on, at the election of their possessor. Did they elect to waive their right in this case ? In our opinion the proof sufficiently establishes that fact. On the J2th of March, 1823, Thompson &f Bathurst address a note to the underwriters, stating the receipt of advice from captain Meany, that he had purchased the Budget after her being condemned, and drawn on them for the amount; and desiring to know, if they might calculate on receiving from the appellants the amount insured in their office, at the time stipulated in the policy, ninety days from proof of loss. The nature of this communication cannot have been misinterpreted. It was an explicit avowal of a claim for the whole “amount insured,” for a total loss; and it was so understood by the underwriters, who in their answer of the same dale reply, “that not having seen captain Meany’a protest, we eannot satisfactorily make you a reply, because on it mainly depends the ground for payment, which (when presented) — 236 — if found in order, the loss is payable ninety days after proof and adjustment thereof.” They do not, in this letter, intimate any claim to the ship which had been purchased, or that instead of paying as demanded of them, the whole “amount insured,” by reason of the purchase for the owners, their liability was limited to the price at which the ship was sold. The notice of abandonment had been given on the 6th of February, 1823, accompanied by a certified copy of the condemnation. The object to be attained by the production of the protest, was to ascertain whether they were responsible at all; not what was the measure of their responsibility. It could not possibly give any information as to the purchase, having been made long anterior. On the 7th of May, (the ninety days mentioned in the policy having expired) payment was again demanded of the Insurance Company, which they declined for want of documents to prove the loss : alleging, that “as the vessel is now here, no doubt they can be produced.” On the gist of May, the insured, after having presented all the documents they had received, address the underwiters a third time, urging the settlement of the loss, and offering to procure in a reasonable time, if possible, any other documents which might be deemed necessary to elucidate the condemnation of the ship. On the 24th of May the Insurance Company reply to this communication, offering to advance to the insured $4498 75, upon their and Robert Oliver’s joint note at six months, bearing interest; and requiring them at the expiration of that time, or sooner, to furnish the following documents relative to the ship Budget, viz: the proceedings of the Court at Porto Rico ; the log book, or authenticated copy thereof ; the charter party, or an authenticated copy: upon receipt of which, and their proving satisfactory, an adjustment of the loss was to take place. This proposition was. manifestly made, (in accordance with usuge) that the insured might sustain no injury by delay, but be put in possession of the identical amount he would be entiled to re — 237 — ceive, upon producing the documents required, or as they alleged, customary proof oí loss; upon the production of which, if satisfactory, the note demanded, was to be cancel-led or given up. Thompson 8f Bathurst, in their letter to the underwriters of the 26th of May, say, “we consider the proofs already handed you, as fully establishing the capture and condemnation of the ship Budget; still, we do not hesitate in trying to procure the documents you have pointed out, and have therefore written for them by a vessel that sailed yesterday for Porto Rico. We should esteem it an accommodation, your now paying us the loss, in the same manner the Phoenix insurance Company have done, viz: by giving our note for the same at six months date, with interest, being as a security for our procuring such further documents as may be requisite ; but we prefer forfeiting that temporary advantage, to giving a note in the manner you prescribe.” On the 28th of May, the Insurance Company, in their answer to the last preceding letter, state, “that the proofs produced in the case of the ship Budget are not satisfactory, or such as are usually produced by the assured, in similar cases, to entitle the assured to claim a total loss. On that score we beg leave to refer you to our letter of the 24th, and what we verbally communicated some time ago. With respect to an accommodation, we have no objection to grant one to the extent treated of in our last, on your note with satisfactory security; which is in conformity with the custom of this company, and from which we cannot deviate ; at the same time, we wish you to understand, that it is neither meant nor intended, as paying a loss, which in our opinion, is not fully established. Should you not approve of our terms, you will of course have to wait until the documents sent for are received, and when received, if satisfactory to this company, no unnecessary delay will be made in paying the loss.” All the documents furnished, and those demanded, were for the purpose of satisfying the underwriters, whether they were liable for any loss. They could throw no light upon the question, whether their lia — 238 — bility was for a total, or partial loss. But for the purchase, made by captain Meany for the owners, that question could never have arisen. The loss could not have been otherwise than total. With respect to this purchase, the documents sought for were known to be silent. Of the purchase, information had been given by the assured in their note of the 12th of March, 1823, and no further intelligence on that subject had been required. On that head the underwriters were satisfied. Their only dissatisfaction, their only objection to pay, as for a total loss, was, that the customary proof of loss, showing any liability on their part, had not been furnished. And to indemnify the assured for the delay in the payment of their claim, they proposed to them the grant of a loan, for the precise amount insured, after deducting the premium note, and $1 25, the cost of the policy, cautiously providing that this accommodation should not be regarded “as paying a loss,” solely on the ground, that a liability on their part had not been fully established. If they had designed, in the event of their being held responsible for the loss, to take to themselves the benefit of captain Meany’s purchase, they ought, within a reasonable time after it was made known to them, to have announced their determination to do so. Had this been done, Thompson Sf Bathurst might have repudiated the purchase made on their behalf, as they were under no legal obligation to sanction it. They had a right to conclude, nay, they could draw no other conclusion from their correspondence with the underwriters, than that they were to be paid as for a total loss, as soon as they could make it appear that they had a right to recover any thing. By such conduct, the underwriters are to be regarded as having waived the privilege of taking the purchase of Meany to themselves, or of relying on it as a waiver of the abandonment. To permit them to do so at the time, and under the circumstances in which they claim to exercise this right, would be a fraud upon the assured; an act of injustice towards them which no judicial tribunal should countenance. — 239 — Concurring with the County Court, in their opinion on all the exceptions on the part of the defendants below, as far as concerns their appeal, we affirm the judgment; but dissenting from the opinions on the exceptions taken by the plaintiffs below, on their appeal the judgment is reversed, and judgment entered according to the agreement of the par ties set forth in the record. JUDGMENT ENTERED ACCORDINGLY AS FOR A TOTAL LOSS.