Nov. 1803. Bordes V. Hallett. total, when only a partial lofs is due. But when an ave- NEW-YORK, rage loss is acknowledged, and the fettling it referred to him, and he adjusts the fum, then, as the agent of the underwriters, they are bound by his report. This is not by affording an authority to fettle a point of law, but as yielding a power over items of an account, the principles of which they acknowledge. Nay, even allowing the underwriters not concluded as to the principles, ftill, if in law at all liable, the quantum, except in cafes of erroneous calculation, cant never be questioned. It is like the case of a person deputed to audit the amount of claims; when the balance is ftruck, it is, errors excepted, final. The doctrine already relied on as to the right of abandonment is not impaired by subsequent restitution. For this the court will find authority in 2 Marsh. 484. Pendleton contra. A principal question in this cause is as to the expenses in the vice-admiralty. The claim for these rests only on the report of Mr. Ferrers; for this is the only evidence in the cafe that any were incurred. Such teftimony, however, cannot bind the underwriters; for M. Ferrers himself states his employment to be merely that of reporting; after doing which, his statement is frequently difregarded, and his adjustment difputed. This would never be, had Mr. Ferrers an obligatory authority. The fact is, he is a mere examiner of accounts, and cannot bind his principals beyond the scope of his authority. He states, his principals had a right to diffent from his statements, of which the present action is in itself the strongest proof. But a queftion is certainly made, whether the abandonment was in due feason. The veffel failed in May, was captured on her voyage, and the abandonment not made till November following. This, confidering the distance of Jamaica, was a grofs delay. We find, however, from the testimony of the captain of the vessel, that this property was acquitted. The plaintiff, therefore, might have had it again had he fo pleased. It is a pofition not to be controverted, that every court is invested with power to enforce its own authority: therefore, if after reftitution awarded, it was not obtained, it muft have arisen from the neglect of the plaintiff, or fome Nov. 1803. Bordes v. Hallett. • See ante note 445. carry; a fhip therefore, he engage, can ne NEW-YORK, other worfe caufe; for, he might have applied to the court, and have obtained an order for it. In cafe of refufal, the process was eafy, attachment for a contempt.* It is said, however, that as the voyage was loft, that circumstance would justify an abandonment. This will present a question to the court that has not, we believe, ever been decided. Whether an owner of goods, where the vessel in which he fhips is incapable of proceeding on her voyage, by reason A fhip own of any accident, is not obliged+ to proceed with his goods in er contracts to fome other veffel? Nothing of this fort appears to have been per does not; determined. Suppofing him, however, bound, ought not the who does not affured to entitle him to a recovery, to fhew that no veffel ver be obliged could be obtained to forward the property; or ought the to perform. infurer to fhew, by way of defence, that there was? The principle is, that the captain ought to get a veffel, if fuch a one be to be found; and it is only in cafes of neceffity that he is authorized to abandon the voyage; if in his power to proceed, he ought to do fo; had it been otherwife, it ought to have appeared in the cafe. 2 Marth. 378. So in Manning v. Newnham, Park 168. Lord Mansfield lays the stress of the cafe on the captain's not being able to get another veffel to go on. It is fettled, that when the bottom is neceffarily changed by shifting the goods from one veffel to another, the underwriter continues liable. Sending on the goods, therefore, in another fhip, would not have exonerated the defendant; and as it was the plaintiff's duty, he ought to make out his cafe by fhewing another veffel could not be obtained. This, certainly, is more proper than for the defendant to be put to prove a veffel might have been procured; because, the assured is to be prefumed to have a correspondent where his property may be carried, but the underwriter is not. Befides, the plaintiff was on the spot, and as he might have procured reftitution from the court of admiralty, he may, admitting all the evidence in the cafe to be true, be now in another country with all the property in his poffeffion. Hoffman in reply. That it is the duty of an affured on goods, in cafe of capture and reftitution, to fend on the arti cles to the port of their deftination before he can be entitled Nov. 1803. Bor des V. Hallett. to recover, is a pofition, till now, unheard of in infurance NEW-YORK, law. He may, perhaps, do it under the general claufe, empowering him, or his agents, to act for the infurers; and, if bona fide done, they may, perhaps, be liable. But no authority, we prefume, can he have to change a neutral into a belligerent risk, as it is probable muft be done, in fending from the port of a nation at war. But, allowing it to be as contended, it ought to come from the defendant, because it is urged as an excuse for not paying a total, but a partial lofs. The plain cafe is, there was a capture, and the voyage totally defeated. Either event will justify an abandonment. The restitution is for the benefit of the affurer, who may profecute his claims upon it, by forcing the captors to go on with their appeal; but, on no principle can it be contended, that the affured must follow it up, to entitle him to recover. This would destroy the very intent of infurance, which is, in cafe of lofs, to put the underwriter in the place of the underwritten. Per curiam delivered by Lewis C. J. The objections to the plaintiff's recovery, on this statement of facts, are, Ift. That he had no right to abandon after the acquittal of the property infured. 2d. That the abandonment was out of time. 3d. That he was bound to have procured another vessel. 4th. That the defendant was not bound by the adjustment. It is stated in the cafe, that the veffel failed about the 17th of May 1800; but when she was captured, or when condemned, does not appear. It appears, however, that though the trunk of goods, on which the infurance was made, was, by the sentence of the court of vice admiralty decree to be restored, the plaintiff could not regain the poffeffion of it, and that he abandoned it to the underwriters, on the 22d of October following. Within what precise period an abandonment ought to be made, has never been determined. The time permitted to elapfe between the condemnation, order of reftitution, and abandonment in the prefent inftance, connot be inferred from any thing in the cafe. It is certain, however, that the lofs was total on the 22d of October, and has fo continued Nov. 1803. Given V. Driggs. NEW-YORK, to the present moment. The voyage to St. Jago de Cuba, was compleatly broken up, and the plaintiff has never had it in his power to convey the goods thither, even had it been incumbent on him so to do, for he has not been able to recover the poffeffion of them. There is no ground then, on which either the firft, fecond, or third objections can be fupported. Had the plaintiff even recovered the poffeffion of his goods, it would not, in my opinion, alter the cafe. No direct intercourse can be prefumed to fubfift between the colonial ports of two belligerents; and were the contrary the fact, this is not a cafe, impofing an obligation on the plaintiff to procure another veffel. A bond to indemnify against an efcape, given after an escape fuffered, is The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permiffion in the policy, to labour &c. without prejudice &c. the infurer became liable to an average of the expence incurred in the attempt to recover the captured property. It is true, he was not bound by the adjustment of Mr. Ferrers, and was at liberty to have shewn that it was erroneous. But this was not even attempted. A circumftance which, when taken in connection with the character and employment of that gentleman, will warrant the conclufion, that his adjustment is correct. We are, therefore, of opinion, judgment be for the plaintiff, for the largest fum found by the jury. John Given against Bartholemew Driggs. THIS was an action by the Sheriff of Albany, on a bond of indemnity, dated 22d April 1798. The declaration was good. A judg- in the common form; for debt, 862 dollars. ment by de fault, is not in itfelf fraudu lent, and unless is within a condition to bear harmless The defendant, in his plea, fet forth the condition of the bond, reciting, that on the 10th March preceding, two writs fraud be fhewn of capias ad fatisfaciendum had been iffued out of the fupreme court, against George Driggs: one, at the fuit of from what the Wendover and J. Hopkins, for 305 dollars; the other, at plaintiff might the fuit of B. Dudley, for 126 dollars, returnable on the be obliged to pay "after due third Tuesday in April in the fame year; that George Driggs proceedings had against had been taken, on both these fuits, by S. Hamilton, one of judged and de- the plaintiff's deputies; that the condition of the obligation him, and ad creed." Nov. 1803. Given Driggs. was, that if the defendant should pay all such sums of mo- NEW-YORK, ney, charges and damages whatever, as the plaintiff should be obliged to pay, after due proceedings at law had against him, and adjudged and decreed, by reason of the aforefaid taking of the faid George Driggs on the faid writs, then the obligation to be void, otherwise, &c. The defendant then pleaded the statute, for preventing vexatious and oppressive arrefts, and, that the plaintiff took the writing aforefaid, for eafe and favor to George Driggs, and by colour of the plaintiff's office: 2dly. That the plaintiff had not been damnified. To thefe pleas the defendant replied, Ift, That at the time when the bond was given, George Driggs was not a prisoner of the plaintiff, nor of Hamilton on the writs of ca. fa. but was then at large, and discharged from his imprisonment thereon; and that the bond was given to indemnify the plaintiff for taking George Driggs, and discharging him from the arrest and imprisonment aforefaid, traverfing the ease and favor. 2d. That in April term 1799, Wendover, furvivor of Hopkins, and B. Dudley, impleaded the plaintiff, for taking and arresting the faid George Driggs, and permitting him to go at large; that, in July term following, judgment was obtained against the plaintiff, for the debts and costs in the above fuits, avering, that he is bound, and charged to the satisfaction of the judgments, and that he was damnified by the fuits and judgments thereon. Rejoinder; that the plaintiff, fraudulently, and deceitfully, and with intent to deceive and defraud the defendant, permitted the faid judgments to pass against him by default, and that he fraudulently and deceitfully neglected to make any defence to the faid actions. Surrejoinder; that the plaintiff did not fraudulently and deceitfully neglect to defend, nor did fo fuffer the judgments to pass against him by default, and iffue thereon. The caufe came on for trial before Mr. Juftice Thompson, at the Albany circuit in September laft, when the counsel agreed that the only two points in question were, |