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 restitu

tion.

"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 in-` quiry, 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 affirmed.

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.

THE

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.

The parties to the present action referred it to three merchants, to ascertain the amount of average loss, and return premium due to the plaintiffs, if, in the opinion of the Court, on a case stated, the defendants should be adjudged liable at all upon the second policy.

The plaintiffs claimed before the referees an average loss on 2000 dollars, which they alleged to be uncovered by the first policy, amounting to 696 dollars 96 cents; and a return premium on the other 2000 dollars, (this being uncovered by the first insurance at New-York) amounting to 110 dollars; being together, 806 dollars 96 cents.

For that sum, with several years' interest, the referees reported in favour of the plaintiffs, amounting to 1003 dollars 85 cents, subject to the opinion of the Court on the question of law, Whether the defendants are liable on the last mentioned policy for the amount: or, Whether, by reason of the prior insu rance at New-York, the same is absolutely void; in which case the defendants agreed they were bound to return the whole premium, with interest.

Both policies contain the usual printed clause, " That if the assured shall have made any other insurance upon the premises aforesaid, prior in date to this policy, then the said company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the premium hereby insured, and the said company to return the premium upon so much of the sum by them insured, as they shall be, by such prior assurance, exonerated from."

The case was argued on Monday the 25th of April, by Messrs. Hallowell and Hare, for the plaintiffs; and Messrs. Rawle and Lewis, for the defendants.

For the plaintiffs, it was insisted, that if the first policy had been open, and not valued, no doubt could arise as to the legal operation of these two insurances; the first would have been good for the amount subscribed, the second for two thousand dollars, (so much being uncovered by the first;) for the remaining two thousand dollars of the sum subscribed on the second policy, it would have been void, that being included in

the first; and upon this last two thousand dollars, a return premium would of course have been due to the plaintiffs; that the circumstance of the first being valued made no difference, as between these parties; the result therefore is the same, as if it had been open; it is agreed by the case stated, that the real value of the ship exceeded 6000 dollars, the valuation fixed by the defendants in their contract; of course in the first policy the ship was undervalued, and Marshall in his treatise on insurance, page 200, says," If the property be undervalued in a policy, the merchant himself runs the risk of the deficiency." According to this doctrine, the plaintiffs, after the 21st of October, stood their own insurers for two thousand dollars; on 20th December following, they did not choose to continue so; and what was to prevent them from covering that sum, whenever they found it prudent, at a fair premium? or in other words, had they not an insurable interest left after effecting the first insurance? Doubtless they had. The only effect of the first valuation was to fix the amount as between the parties to that contract for their own convenience merely; it could effect no other persons. Here the defendants have bound themselves by their own valuation of six thousand dollars; they cannot recede from it, and it is admitted in the case to be consistent with the truth, as she was really worth that sum.

It is stated that the defendants were not informed of the prior insurance; it was unnecessary; no law requires it; no case calls for it; the very terms of the special clause, which has lately been introduced into the policies to prevent the operation of the rule of contribution amongst different sets of underwriters, necessarily imply that such communication cannot be made. In this case there was no fraud, no material concealment, no over valuation; and the plaintiffs, if they recover the sum reported, in addition to what they have received from the first insurers, will receive an indemnity, and no more; and where that only is sought for, and every thing is fair, these contracts of insurance should be liberally construed. The case is not affect ed by the prior valuation; it only operates on those who agree to it. As to the objection which may be urged, that in case of