V.

The peril by capture was at an end on the 9th of Ju- Marshall ly, when the final decree of restitution was pronoun- Delaware Ins. ced in the court of dernier resort.

The right to restitution was consummate, and the authority to restore absolute. What remained was mere matter of form. The vessel and cargo were in the hands of the public officer, who held the same, after the decree, in trust for the owner. There was no longer any hostile or adverse possession. The property was in no danger of condemnation, or even of further detention.

*The state of the fact, and not of the information, is the test of the right to abandon. If intelligence were the test, any idle vague rumour might compel the underwriters to pay a total loss when the property was in fact in perfect safety the whole time.

The contract is, that the property shall not perish by the peril, not that it shall not encounter the peril. A storm may injure it, but if the injury does not exceed half the value, and the voyage be not broken up, it is not a total loss. The underwriters are only bound to pay the partial loss. It is a contract of indemnity only; the liability of the defendants, therefore, must depend on the state of the fact, and not of the intelligence. Park, 77. 155. 160. 144, 145, 146. 148. 152. 156. 167. Esp. Ca. N. P. 237. MMasters v. Shoolbred. Rhinelander v. Ins. Co. of Pennsylvania, (ante, p. 42.) Dutilgh v. Gatliff, cited in Rhinelander's Case, 1 N. Y. Cases in Error, 21, 22. 1 Johns. Rep. 205.

It is not contended that the consequences of the capture created a total loss, either in fact or in law. The expenses, pillage, and damage did not amount to more than one fourth of the insured value, and these the underwriters are willing to pay. The vessel arrived at her destined port. She performed the voyage insured.

Ingersoll, in reply.

It is said that the restitution is to be considered as referring back to the time of the decree; but that point was otherwise decided in the case of Dutilgh v. Gatliff, in the supreme court of Pennsylvania. It was there

decided that although at the time of the offer to abandon, there was a decree of restitution, yet as that decree was not known to the party who offered to aban

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* 205

Marshall don, and as in fact the property was then in possession Delaware Ins. of the captors, the insured had a right to recover for a

V.

Co.

* 206

total loss.

February 23.

MARSHALL, Ch. J. after stating the facts of the case as above, delivered the opinion of the court as follows:

*The question submitted to the consideration of the court is this: is the assured entitled to recover for a partial or for a total loss?

In support of the claim for a total loss, two points have been made :

1st. That the state of information at the time of the abandonment, not the state of the fact, must decide the right of the assured to abandon.

If this be otherwise, then, it is contended,

2d. That the right to abandon is coextensive with the detention, which continued until restitution was made in fact, and that restitution in fact, though made on the same day, was posterior in point of time to the abandonment.

1. Does the right to abandon depend on the fact, or on the information of the parties?

The right to abandon is founded on an actual or legal total loss. It appears to the court to consist with the nature of the contract, which is truly stated to be a contract of indemnity, that the real state of loss at the time the abandonment is made, is the proper and safe criterion of the rights of the parties. Might they depend absolutely on the state of information, a seizure which scarcely interrupted the voyage might be, and frequently would be, converted into a total loss, and the contests respecting the real state of information might be endless. Intelligence of capture and of restitution might be received at the same time, and the insured might suppress the one and act upon the other.

This point came under the consideration of the court in the case of Rhinelander v. The Insurance Company of Pennsylvania, in which case it was said, that "where a belligerent has taken full possession of a vessel as prize, and continues that possession to the time of the abandonment, there exists, in point of law, a total loss." The court, in delivering this opinion, understood itself

V.

Delaware Ins.

to require, that the continuance of the possession *up to Marshall the time of the abandonment, or a technical total loss incurred notwithstanding the restoration, was necessary to justify a recovery as for a total loss.

In considering the second point, the court proceeded to inquire whether the technical total loss on which the right to abandon depended, was terminated by the decree of restitution, or continued until that decree was carried into execution, and restitution was made in fact.

The real object of the policy is not to effect a change in property, but to indemnify the insured. Whenever, therefore, only a partial loss is sustained by one of the perils insured against, the original owner of the property retains it, prosecutes his voyage, and recovers for his partial loss.

But the voyage may be really broken up, without the destruction of the vessel and cargo. A detention by a foreign prince, either by embargo or capture, may be of such long duration as to defeat the voyage. This is a peril insured against, and of its continuance no certain estimate can be made. In the case of capture it is, for the time, a total loss, and no person can confidently say that the loss will not finally be total. So of an embargo. Its duration cannot be measured, and it may destroy the object of the voyage. These detentions, therefore, are, for the time, total losses, and they furnish reasonable ground for the apprehension that their continuance may be of such duration as to break up the voyage, or ruin the assured, by keeping his perty out of his possession. Such a case, therefore, upon the true principles of the contract, has been considered as justifying an abandonment, and a recovery for a total loss.

pro

But when a final decree of restitution, from which it is admitted that no appeal lies, has been awarded, the peril is over. On no reasonable calculation can it be supposed that such a delay of restitution will ensue, as from that time to break up the voyage. There is no reason to presume a subsequent detention on the part of the foreign prince. There is no motive for such detention. The master of the captured vessel may perhaps not be ready to receive possession, and the delay may proceed from him. At any rate, without some evidence that the peril was not actually deter

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Y.

Co.

Marshall mined, the court cannot consider it as continuing after Delaware Ins. the sentence was pronounced. A technical total loss originates in the danger of a real total loss. The court cannot suppose such a danger to have existed after a final sentence of acquittal, unless some order of court relative to a reconsideration could be shown, or it should appear that some other delays were interposed by the court which had pronounced the sentence, or by the sovereign of the captor.

Had the facts on which this question depends been known at New-York and Philadelphia as they occurred, could it have been said that there existed a technical total loss? After a decree of restitution, could it be said that while means were taking to carry that decree into execution, while the mandate for restitution was passing from the court to the vessel, the assured had a right to elect to consider his vessel as lost, and to abandon to the underwriters? To this court it seems that the right to make such an election, at such a time, would be inconsistent with the spirit of the contract, and that the technical total loss was terminated by the decree of restitution, unless something subsequent to that decree could be shown to prove the continuance of the danger, or of an adversary detention.

Nothing in this opinion is intended to extend to the case where a cargo may be lost, without the loss of the vessel.

There is no error in the judgment of the circuit court of Pennsylvania, and it is to be affirmed, with

costs.

Judgment affirmed.

* 209

On the 4th

*M'ILVAINE v. COXE'S LESSEE.

THIS 'cause was now argued again by Duponceau

of October, and Ingersoll, for the plaintiff in error, and by Rawle of New Jer. and E. Tilghman, for the defendant.

1776, the state

sey was com

pletely a sovereign and independent state, and had a right to compel the inhabitants of the state to become citizens thereof.

A person born in, the colony of New Jersey before the year 1775, and residing there until the year 1777, but who then joined the British army, and ever since adhered to the British, claiming to be a British subject, and demanding and receiving compensation from that government, for his loyalty and his sufferings as a refugee, has a right to take lands by descent, in the state of New Jersey,

Coxe's Lessee.

The report of the former argument(a) having been MIlvaine so full, it is deemed unnecessary to state more of the argument, at this term, than will be sufficient to show the points to which additional authorities were adduced.

For the plaintiff in error, it was contended,

1. That Daniel Coxe was born an alien to the state of New Jersey; and when the revolution commenced, had a right to choose his side in a reasonable time, and could not be made a citizen of the new state against his will. Upon this point were cited 2 Dall. 234. Coignet v. Pettit. 2 Rutherforth, 30. 1 Bl. Com. 212. 3 Dall. 225. Ware v. Hylton. Plowden on Alienage, 3, 4. 7. 15. 19. 24. 119. Laws of the U. S. vol. 7. p. 147.; vol. 3. p. 165.; vol. 6. p. 80.

2. That even if he could, contrary to his natural allegiance, be compelled by force to become a citizen of the new state, his consequent allegiance to such new state could be temporary only, and could not exist longer than the pressure of the force existed. He had a right to escape from that force, and to throw off that allegiance, if he could. Natural allegiance, i. e. the allegiance due from birth, is the only kind which, by the rule of the common law, cannot be shaken off. Voluntary allegiance, by naturalization, and, à fortiori, allegiance imposed by force, is not perpetual. No fiction can make a natural born subject. 7 Co. 13. 38. 19. Vaughan, 280. Craw v. Ramsay. 1 Bl. Com. 369. 5 Vesey, jun. 781. Somerville v. Somerville. Zouch, de Jure inter Gentes, 144. ed. 1659. pars 2. s. 2. n. 16.

*It was also contended that the doctrine relied upon from Calvin's Case was an extrajudicial dictum, and even upon the principal point of that case, the judgment of the court was influenced by the known wishes of King James. To shake the authority of that case, the counsel cited Collectanea Juridica, 16. 3 Biographia Brittanica, art. Coкe. 5 Co. 40. b. Rapin's Hist. Eng. anno 1606, 1607. Hume's Hist. Eng. anno 1604. Hargrave's Introduction to the case of the Postnati. 11 State Trials, 75. Id. 85. Lord Bacon's Speech. 1 H. H. P. C. 68. 11 State Trials, 106. Lord Elles

Ante, vol. 2. p. 280. Feb. term, 1805.

*210