ALBANY, cover a total or a partial loss? Two objections have been made against the recovery for a total loss...

August 1803.

Abbott
V.

Broome.

1st. That the case of a total loss never existed. 2d. That the purchase at St. Christophers, by the supercargo, who was also a part owner of the ship, and the subsequent sale at New-York, without the consent of the defendant, or a previous offer or tender of the ship to him, amounted to a waiver of the abandonment, and an adoption of the vessel as his own.

A

With respect to the first, it appears that the ship was condemned at St. Christophers, as unfit to proceed on her voyage, on account of the injuries she had received; and the persons appointed to survey her there, certified, that in their opinion, she could not be repaired for her full value when repaired. 'It is also admitted, on the part of the defendant, that in consequence of the disasters experienced on the voyage, she was so much injured, that it was impossible, from the high prices of wages and materials, to repair her at St. Christophers for half her value, so as to enable her to bring on her whole cargo. It is again admitted on the part of the plaintiff, that in the spring following, the ship came to New-York with a light cargo of molasses and rum, being about sufficient for ballast, and that she might have brought a full cargo of rum, which was proved to be very light and buoyant.

the

On these facts, I am of opinion, that there existed a case of a technical total loss, and that the assured had a right to abandon. The question, in such cases, is not whether the vessel be in a capacity, or in a situation to be repaired, so as to prosecute her voyage with a half, or any other portion of her cargo, but whether she is capable of proceeding, or of being refitted to proceed, and carry whole. A vessel is not seaworthy, unless she be in a condition to carry a full cargo. The contrary idea is novel and jiuconsistent with every principle of propriety, and safety in navigation. The vessel was insured to perform her voyage, and carry her cargo from Batavia to New-York. This she was disabled from doing. The enterprize, there

4

Abbott

V.

Broome.

fore, failed, by means of the perils insured against, and ALBANY, August 1803. the plaintiff had a right to abandon, and claim a total loss. The second question is, whether he has waived this right. The vessel was ordered by the court of admiralty at St. Christophers, to be sold for the benefit of all concerned. The supercargo, who was one of the owners,' purchased her on account of the assured. The assured had previously, on receiving advice of her condemnation, and before any notice of the purchase, abandoned his interest to the underwriters, who refused to accept the abandonment. In what manner the supercargo, being also one of the owners, might be affected by the purchase, it is unnecessary to determine. The question is, whether the plaintiff ratified his acts subsequent to the abandonment, and recognized the purchase as his own, In the case of Saidler and Craig v. Church, after an abandonment, a similar purchase was nade, and the assured adopted it as their own, by availing themselves of the advantage it offered, and fitting out and sending the vessel on another voyage for their own account. Under these circumstances, we considered July Term, the assured as having affirmed the purchase, and waived the abandonment.

The present case differs in this, that the plaintiff has done no act to affirm the purchase. He has not appropriated the vessel to his own use, and has not attempted to derive any benefit from the purchase. The vessel was sold at auction on her arrival at New-York, and purchased by a stranger. Although it be not expressly stated in the case, the sale must be presumed to have been made for the benefit of the underwriters. It is objected that the plaintiff ought again to have offered to deliver them the vessel, or have consulted them as to the propriety of the sale. I think this was not strictly necessary. The abandonment was an offer to cede all his title and the possession of the vessel, as far as under the circumstances it was capable of being delivered. The plaintiff, was not bound to do more, and it being Case proper for an abandonment, the defendant ought to have accepted it; or, at least, the refusal was at his peril. He did not accept, and the plaintiff was nieces

1799.

August 1893.

Abbott

Broome.

ALBANY, sarily left to act as his trustee in the disposition of the property. If he executed the trust fairly, he has dischar ged his duty, and it was not incumbent on him to follow the defendant, and repeat his application to receive what he ought at first to have accepted. The sale at auction was therefore justifiable, and the defendant ought to be charged with a total loss, deducting the proceeds of the sale, and the value of the freight from St. Christophers to NewYork.

An award

in trespass that

Ebenezer Purdy against Mathew Delavan and Samuel Delavan.

This was an action for a conspiracy, in burning the "the said suit plaintiff's barn, and the various articles it contained. The declaration contained seven counts.

shall no further

be prosecuted," / is sufficiently finai and certain,

to an action on

the case for the

The first stated the plaintiff possessed of a barn and and a good bar close, containing hay, &c. The defendants, knowing the premises, and contriving to injure, &c. the plaintiff, by a certain conspiracy, confederacy, and agreement, did cause the barn, &c. to be set on fire, destroyed and consumed.

same offence.

Second like the first, except that the defendants did conspire to set on fire, and cause to be set on fire, and consumed, and destroyed, the barn aforesaid, containing, &c. and by means of the conspiracy aforesaid, the barn was set on fire and consumed.

Third. The same, stating that the defendants, by conspiracy, &c. did procure the barn, &c. to be set on fire, destroyed, and consumed.

Fourth. That the defendants did conspire, &c. to set on fire and cause to be set on fire and destroyed, the barn last aforesaid, &c. with an averment, that the barn was in pursuance of the conspiracy aforesaid, set on fire and consu med.

Fifth. That the defendants, by a conspiracy before had, did cause and procure the barn to be set on fire and cond sumed.

Sixth. The same, only enumerating the contents of the barn.

Seventh. That the defendants conspired to set on fire, 『, -(སྙ

1

August 1853

"For that" con

Purdy

V.

Delavan.

It has been

tion upon the

upon a wrong,

contra pacem.

tions contra pa

and they, in pursuance of their conspiracy, did, &c. and did ALBANY, cause to be, by fire destroyed, the barn aforesaid. All the counts began as in trespass, cluding with "alia enorma against the peace,"* &c. The defendants separately pleaded the general issue, with a notice, that on the trial they would severally give said that an acin evidence in bar thereof, and according to the form of case is founded the statute, a former suit in trespass against the defend- and concludes ant Mathew, Hannah his wife, and the other defendant Vaugh. 101. F. N. B. 92. E. Samuel, for breaking the close of the plaintiff, and also but this is a for burning his barn, containing, &c. and that they could mistake, for acgive further in evidence, a submission of the said suit by cem, are a spethe plaintiff on the one part, and the said Mathew and vi et armis. See Hannah for themselves, and the said Samuel their son, an infant, on the other part, to the arbitrement of certain arbitrators mentioned, and their award thereon made, by which the plaintiff was ordered to "no further prosecute the said suit," and to pay the defendant, Mathew Delavan, 14dollars 68 cents costs; and further, that the suit on which the said award was made, was for the same trespass for which the present action was brought. The submissión and award were in the following words:

cies of actions

The condition of this above obligation is such, that whereas, a barn of the above Ebenezer Purdy hath been. destroyed by fire, together with hay, grain, and other valuable articles which it then contained: and whereas, the said Ebenezer Purdy hath instituted an action in the Supreme Court of Judicature of the State of New-York, against the before named Mathew Delavan, and Hannah his wife, and Samuel Delavan his son, for burning and destroying said barn, in which action the said Mathew Delavan, Hannah his wife, and Samuel Delavan, have pleaded not guilty, so that the said action is now at issue: and whereas, it is just and right that if the said Mathew, and his wife, and his son, or any, or either of them, have, or hath in fact, burned or destroyed the said barn, or have or hath in any manner aided, abetted, assisted, contribu ted, occasioned, or been privy to the burning or destruction thereof, (which they and each of them wholly deny)

1 Mor. Vad

Mec. 65.

August 1803.

Purdy

V.

Delavan.

ALBANY, that then he, the said Mathew Delavan, shall pay to the said Ebenezer Purdy, all the damages he hath sustained thereby, which the said Mathew Delavan hereby agrees to do. And whereas, the said Ebenezer Purdy and Ma, thew Delavan, have mutually agreed to discontinue the said action, and to submit all questions, disputes and controversies touching the destruction of the said barn and the contents thereof, and the damages the said Ebene zer Purdy hath sustained thereby, to the judgment and award of Epenetus Wallace and Hachaliah Brown, Esq. and Stephen Gilbert, Farmer, or any two of them, ar bitrators mutually chosen by and between the said par ties, to arbitrate, award, and determine, touching the premises. Now, therefore, the condition of the prece ding obligation is such, that if the above bounden Ebenczer Purdy, his heirs, executors, or administrators, shall and do, well and faithfully abide by and perform the judgment, arbitrement, and award of the said Epenetus Wallace, Hachaliah Brown, Esq. and Stephen Gilbert, or any two of them, so that their award be made in wri ting, and ready to be delivered to the said parties, on or before the twenty-third day of June instant, then this ob ligation to be void, or else to remain in full force or virtue.

Whereas, a certain suit has heretofore been commen. ced in the Supreme Court of Judicature of the State of New-York, by Ebenezer Purdy against Mathew Dela van, and Hannah, his wife, and Samuel Delavan, his son, for the burning and destroying the barn of the said Ebenezer Purdy, by fire: and whereas, for the putting an end to the said suit, they, the said Ebenezer Purdy, and Mathew Delavan, by their several bonds and obligations, bearing date the second day of June, in the year of our Lord one thousand eight hundred and one, are be come bound each to the other of them, in the penal sum of two thousand dollars of lawful money of the United States of America, to stand to and abide the award and final determination of us, Hachaliah Brown, Stephen Gilbert, and Epenetus Wallace, so as the said award be made in writing, and ready to be delivered to the said parties,"