them without further act by the plaintiffs, which shews the reason of the principle. As in trover and trespass, after judgment and satisfaction for the conversion or taking of goods, the property is in the defendant. Brown v. Wotton, (a) Lacon v. Barnard, (b) Gilb. Ev. 265. The object of an offer to abandon is to inform the insurer of the party's election, that he may pursue the remnant of the property, and make it of as much value as possible, Allwood v. Henkle. (c) Any act which communicates this information must be equal to a formal offer, and a demand as for a total loss is as explicit to this effect as any act can be. It was evidently so considered in the case of Havelock v. Rockwood, (d) where the assured without abandoning or offering to abandon in terms, merely demanded as in this case payment as for a total loss. He was indeed prevented from enjoying the benefit of it, because upon a demand by the insurers that he should actually assign his interest, he refused; which negatived the willingness to abandon implied by the demand of payment; of course, but for this refusal, he might have recovered upon his demand alone. This was a case of capture like the present, and is in point. But the refusal to pay, without mentioning the want of an offer to abandon, was at all events a waiver; as in the case of a tender of bank bills, where no objection is made particularly to bills. On the second point Lewis argued that it was clear the finding of the jury would stand well with the declaration for a total loss, that point being at rest by the case of Gardiner v. Croasdale. (e) The proof of total loss referred to in the point reserved is such as the circumstances of this case set forth, a loss which would have been total upon abandonment, but which is so incomplete as to leave a spes recuperandi. There has not been a total destruction, the property remains in specie, and the question is whether the jury can make a deduction for the chance of recovery. The assured is not in any case bound to abandon; but the only consequence of not abandoning is that he must be satisfied with an average loss; Goss v. Withers; (ƒ) Mitchell v. Edie; and as an average loss he may recover any thing even a cent short of the sum insured. Park 103. 144. 199, 1803. WATSON and PAUL υ. Ins. Co. N. A. 50 1803. WATSON and PAUL υ. Ins. Co. N. A. The plaintiffs have chosen to reserve the spes recuperandi to themselves, which they had a right to do, and which it is to be presumed the jury have valued. If the loss is so complete that there is nothing left, no abandonment is necessary according to Camberling v. McCall; (a) if on the other hand an abandonment is necessary to make it a total loss there being something to cede, that something is a deduction from a total loss which leaves an average. Havelock v. Rockwood was the case of a declaration for a total loss, a total loss like the present proved, and a recovery for a partial loss. For the defendants it was contended that an explicit offer to abandon was necessary, because notwithstanding the demand as for a total loss, the plaintiffs might still upon a change of prospects have recurred to the captors; by this means the insurers would have been kept inactive by their uncertainty, and the assured would have played fast or loose according to the colour of events. All the cases require an offer to abandon, and they speak of it in connexion with and subsequent to the demand as for a total loss, proving thereby their distinct character. 2 Marsh. 479. 481.483. 485. 488. 494. 517, 518. Park 82. 143, 144. 172. Havelock v. Rockwood by no means decides that a demand for a total loss is equivalent to an offer of abandonment. On the contrary the underwriters in that case demanded an assignment of more than they were entitled to, which the assured very properly refused, and then the case stood upon the original ground, a simple demand of payment, which was held to be insufficient. There is no pretence for presuming a waiver. If an offer to abandon was necessary, the insurers had a right to refuse; the title of the assured to payment as for a total loss was incomplete, and the demand unfounded. It never was heard that a party bound to a certain duty after the performance of a condition by another, is likewise bound to tell the other party that he must perform his condition under the penalty of being presumed to waive it. The second point involves the existence of abandonment; for if upon a declaration for a total loss, and proof of a capture and condemnation of the property, the jury may value the spes recuperandi, and their finding is protected as a partial loss, it will (a) 2 Dall. 280. and PAUL V. Ins. Co. N. A. supersede abandonment in every case. The objections to it are 1803. insurmountable. The jury must find according to their proof. WATSON Now what has been proved here? Capture and condemnation and the property still in the hands of the captors. Will any one say this is an average loss? Is there a dictum, the sentiment of an elementary writer, even the opinion of a practical insurer to justify such a name for such a loss? Do any of the rules for the adjustment of partial losses apply to it? Has any of the property insured come to the owner's hands, or to any one for his use, so as to form a deduction from the whole sum; or has there been damage or partial injury? Certainly not, and without this there cannot be an average loss. But it is said the spes recuperandi may be valued and deducted. By what rule is this to be done? Contracts of this kind are not to be governed by the vague notions which twelve men may happen to form of the chances of war, or the justice of foreign nations. They are contracts to be governed by facts and not by imagination; and nothing can be more completely indeterminate than the value of this hope. But further; the spes recuperandi goes to the whole property; it is either good for the whole, or good for nothing. If it is good for the whole, the assured while he retains it should not recover any thing; if it is good for nothing, where can be the ground of a partial loss? The truth is that the law of insurance, to do perfect justice to both parties has said to the assured, you shall not retain the spes recuperandi upon a pretence that it is good for nothing, receive from the underwriters an indemnity for your loss, and perhaps afterwards recover the thing insured; but you may within a reasonable time transfer this hope to the insurer, who must pay the sum insured, and may then make the best of the property for himself. It is also argued that if this is not an average loss, it is so total as not to require abandonment. This proceeds upon a mistake. The law of insurance recognises but two kinds of loss, perfect in themselves, and which require no act of the assured to vest his title to recover for them. The first is a total destruc- tion, as by sinking at sea, blowing up &c.; the second is a partial loss, where the damage or injury to the property is short in some degree or other of total destruction. When either of these losses is proved by the assured, his recovery must be pro tanto. Under certain eircumstances the same law authorizes the assured by abandoning his interest to the underwriters to recover a and PAUL U. Ins. Co. N. A. 1803. total loss from them in cases of extensive partial loss, and also WATSON in cases where there is neither partial loss nor total destruction, as where a voyage is broken up, or the property is captured and condemned as in the present case. But in these cases without abandonment there is no total loss; and every case in the books says so. It is true that even a capture may turn out, and it often does turn out, to be a partial loss; and as such may be made good under the policy as well as those extensive partial losses which the assured has neglected to convert into a total loss by abandoning; but unless the assured can shew a true partial loss, or has abandoned in reasonable time so as to have a claim for a total loss, his indemnity under the policy is gone. The principle will stand the test of any investigation; it is part of the essence of indemnity, that while the thing insured is in existence, you shall not recover as for a total loss, unless you have surrendered to the insurers your claim to the property with the right of pursuing it in the best manner they can devise. The cases which have been cited are not to the purpose. In Havelock v. Rockwood and in Mitchell v. Edie a partial loss was proved as well as recovered; and the language of Buller J. in the latter case is very explicit. "I am of the same opinion with my brother Ashhurst that where the voyage is lost but the pro"perty is saved, the owners have an option to abandon, but "unless they do elect, it is only an average loss." Which most evidently means that total loss is out of the question without abandonment, and that the recovery can only be for an average: loss where such a loss is proved. In the case of Bell v. Beveridge (a) which was a case of capture and condemnation like (a) I have been so fortunate as to procure a memorandum of the Chief Justice's charge in the case referred to, from the notes of his honour Judge Smith. SHIPPEN C. J. "The principal point rested on by the defendant is whether there was an abandonment in proper form and time. As to forms of abandonment, none are prescribed, and they are not material. It is sufficiently made out that plaintiff meant to abandon; but was it in time? It must be in reasonable time after he has well authenticated intelligence of the loss, so that he shall not by delay derive any advantage. The time between the intelligence and the abandonment was however a long time, four or five months. But the plaintiff seemed disposed to look to the underwriters from the first; if he waited till he should know whether he could recover from the French government, he ought not to recover. As to average loss, it is out of the question." Vide 4 Dall. 272. s. c. 1 1803. and PAUL this, his honour the Chief Justice said, "when there is a claim "for a total loss, and proof of a total loss, an average loss is WATSON "out of the question." So in M'Callmont and Boys v. Murgatroyd, decided in this court. Indeed it is useless to turn to cases for this principle; the books are full of them; and if it were not so, why have not plaintiffs, in the numberless cases in which they have failed for want of abandonment, attempted a partial loss. But a case in point is Bischoff v. Agar. (a) SHIPPEN C. J. The action is brought for the sum underwritten in the policy, to wit, for 1000 dollars, as for a total loss; the jury have found a verdict for the plaintiffs for the sum of 740 dollars and 10 cents, as for a partial loss; the material question is whether the jury could find as they have done. Where any part of the thing insured is left, and in that case alone, the insured is bound to abandon to enable him to recover as for a total loss; the only penalty for not abandoning is that the assured must be satisfied with an average loss. Here it is said there was something left, there was a spes recuperandi, there was a chance of a reversal of the sentence of condemnation, and that this chance should have been ceded to the underwriters. The jury therefore might have considered this as an average loss, that is to say, they might have estimated the spes recuperandi and chance of a reversal of the sentence as equal to the difference between the sum underwritten and the sum found and obliged the insurers to pay the remainder as an average loss. That a partial loss may be found in an action. brought for a total loss cannot be denied; but it is said that where the demand is for a total loss, and a total loss is proved, there cannot be a verdict for a partial loss, otherwise the necessity of abandonment might in all cases be evaded by the jury's being called upon and consenting to give a verdict for some small matter less than the whole sum insured. If this should ever be the case, it will always be in the power of the court to prevent the evasion; but the case in 1 T. Rep. and some others shew that a verdict may be found for a partial loss where a total loss is proved as well as demanded, if the party had chosen to consider it as such by an abandonment. And it is not competent to the defendant to say there is something left for the pur (a) Park 82. 5th ed. V. Ins. Co. N. A. |