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to recover, is a position, till now, unheard of in infurance NR Nov. 1803.

law. He may, perhaps, do it under the general clause, empowering him, or his agents, to act for the infurers; and, if bona fide done, they may, perhaps, be liable. But no authority, we presume, can he have to change a neutral into a belligerent risk, as it is probable must 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 loss. 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 prosecute 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. Percuriam delivered by Lewis C. J. The objections to the plaintiff’s recovery, on this statement of facts, are, lit. 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 veffel. 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 retored, 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 elapse between the condemnation, order of restitution, and abandonment in the present instance, connot be inferred from any thing in the cafe. It is certain, however, that the loß was total on the 22d of October, and has so continued

Bordes v. Hallett.

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NEW-YORK, to the present moment. The voyage to St. Jago de Cuba, Nov. 1803.

was compleatly broken up, and the plaintiff has never had it Given

' in his power to convey the goods thither, even had it been Driggs. incumbent on him so to do, for he has not been able to reco

ver the poffeffion of them. There is no ground then, en which either the first, second, or third objections can be supported. Had the plaintiff even recovered the poffeffion of his goods, it would not, in my opinion, alter the case. No direct intercourse can be presumed to fubfift between the colonial ports of two belligerents; and were the contrary the fact, this is not a case, imposing an obligation on the plaintiff to procure another vessel.

The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permission in the policy, to labour &c. without prejudice &c. the insurer 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 circumstance which, when taken in connection with the character and employment of that gentleman, will warrant the conclusion, that his adjustment is correct. We are, therefore, of opinion, judgment be for the plaintiff, for the largest fum found by the jury.

men

A bond to John Given against Bartholemew Driggs. indemnisy against an el... THIS was an action by the Sheriff of Albany, on a bond cape, given af. ter an escape of indemnity, dated 22d April 1798. The declaration was (uffered, is good. A judge in the common form ; for debt, 862 dollars. fault, is not in

Si in The defendant, in his plea, set forth the condition of the del fraudurere bond, reciting, that on the 10th March preceding, two writs fraud be thewn of capias ad fatisfaciendum had been issued out of the suis within a condition to preme court, against George Driggs: one, at the suit of bear harmless. Wendover and J. Hopkins, for 305 dollars; the other, at

might the suit of B. Dudley, for 126 dollars, returnable on the be obliged to 4 pay “after duc third Tuesday in April in the same year; that George Driggs proceedings had again had been taken, on both these suits, by S. Hamilton, one of judged and dc- the plaintiff's deputies; that the condition of the obligation creed."

was, that if the defendant should pay all fuch fums of mo- N£, ney, charges and damages whatever, as the plaintiff should ov. 1803. be obliged to pay, after due proceedings at law had against * him, and adjudged and decreed, by reason of the aforefaid Driggs. taking of the faid George Driggs on the said writs, then the obligation to be void, otherwife, &c. The defendant then pleaded the statute, for preventing vexatious and oppreffive arrests, and, that the plaintiff took the writing aforesaid, for ease and favor to George Driggs, and by colour of the plaintiff's office, 2dly. That the plaintiff had not been damnified. To these pleas the defendant replied, 1st, 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 difcharged from his imprisonment thereon; and that the bond was l given to indemnify the plaintiff for taking George Driggs, and discharging him from the arrest and imprisonment aforesaid, 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 said 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 fatisfaction 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 said judgments to pass against him by default, and that he fraudulently and deceitfully neglected to make any defence to the said actions. Surrejoinder; that the plaintiff did not fraudulently and - . deceitfully neglect to defend, nor did so fuffer the judgments to pass against him by default, and iffue thereon. 1. The cause came on for trial before Mr. Justice Thompson, at the Albany circuit in September last, when the counsel f agreed that the only two points in question were, l, | - : , ,

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- fraud and deceit of the plaintiff, or werenegligently andfraudu.
lently fufferedornot. The pltff proved that judgmentsinthe

twofuits of Wendoverand Hopkins, and of Dudley, were duly
obtained, and executions regularly fued out against George
Driggs. That he was taken upon them fame time in Marth
1798, by one of the deputies of the Sheriff, named Hamilton,
and that, at the time of the arrest, many threateningolia.
vations were made, by the defendant and George Driggs, in
cafe the Sheriff should detain his prisoner in custody, astley
infifted he was not liable to be held, having lately obtained
his discharge under the infolvent act; that at the fametime,
there was fome conversation about giving a bond to try the
validity of the arrest, and fecure the Sheriff, in case the fil
George Driggs should ultimately be liable to the above exe-
cutions; that, directions were given to one Frazer, theat-
torney in the fuits against George Driggs, to prepare such
a bond; but before it was finished, the defendant told Fr.
zer he need not go on, for that he [the defendant] would
have nothing to do with it; that fince the arrest, Hamilton
had declared he had permitted George Driggs to goath',
that George Driggs went a journey to the westward, and
the defendant faid he would fee him forthcoming inten
days; that Frazer did not consent to George Drigg'ging
at large, but on being asked, whether he could be regulili
fet free, on fome perion's undertaking for his returniniott.
tody; Frazer anfwered, so it had been practised by othetsi
that Driggs had been seen, after coming back from the we'.
ward; and that Hamilton had been heard to fay, Geor:
Driggs had returned according to his agreement; that."

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the 23d of April 1798, the bond, on which the presentad"'. V.

was instituted, was drawn by Frazer, at the request of Hi-
milton and the defendant, when George Driggs was not:
fent, and that it was executed by the defendant, at a house
to which he and Hamilton went for that purpose; that"
£ret took place on the 10th or 12th of March preceding

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#: between which time, and the 23d of April following, when N#,
s # the bond was executed, George Driggs had been frequently . I&o3.
* seen in the streets of Loonenburgh, where he and Hamilton
. . refided; that, previous to the execution of the bond, Joseph Driggs.
* Hopkins consented to its being given, and told Hamilton he "T-
* would be safe if he took it; that, at the time of its execu-
* tion, the defendant faid he was not afraid of the bond, as he
: waspofitive his fon's discharge was good; but, that he did |
t: not with the heriff to be hurt. The plaintiff here closed his
cafe. The defendant gave in evidence, by a witness present
* when the arrest was made, that Hamilton agreed with George
Driggs, that he might go a journey to the westward, and
that the defendant became his furety that he should return

in ten or twelve days; that he did return within that time, and was delivered up by the defendant to Hamilton; that the attorney, in the causes against George Driggs, said the fheriff would be safe in letting him go, if the defendant was | | furety for his return; that from Hamilton, it was underflood, that George Driggs was not his prisoner, at the time i the bond was given. Frazer's affent to Driggs's being fet at large, was denied by Hamilton, who said, he himself permitted Driggs to go the journey to the westward, on condition of the defendant's undertaking for the return of Driggs, the prisoner; that he did come back, as was promised; but | #" that Hamilton recollected no furrender of him into cuftody; that the defendant faid he was willing to give a bond to in| demnify the sheriff, and, on Hopkins's consenting to the bond in question, it was executed; but that, at the time of its execution, George Driggs was absolutely at large, and had been fo ever fince his return; nor had the sheriff exercised |any authority over him, as the deputy did not confider him in custody, in consequence of Hopkins's consent to the bond; # that offich confent, the plaintiff, shortly after the fuits a- i * gainst him were commenced, was informed, and that he had fatisfied the judgments obtained therein against him, within |

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ut five pounds. On this testimony the jury found a ver

& for the defendant. "The present application was for a new trial. . t

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