| Pa. | Jan 5, 1811
delivered the opinion of the court.
If we consider the final event in this case, there was in fact but a partial loss. The vessel and cargo were captured by the French, and carried into port; they were acquitted by the court of Admiralty judging of matters of prize, in the first instance, the captors appealed, and the decree of acquittal was affirmed by the court of the last resort; in consequence of which, the vessel and cargo were restored, and the voyage on which the insurance was made, was completed. But there was at one period, a total loss by capture, and an abandonment by the plaintiff, at a time, when he supposed that such total loss continued. This abandonment was made after the final acquittal, and order for restitution, bqt before restitution was actually delivered. The plaintiff’s counsel seemed to consider it as a doubtful point, whether it was not sufficient to recover for a total loss, if the abandonment after capture was made at a time when the plaintiff supposed, from the information received, that a total loss existed, although in fact, it had ceased to exist, by an actual restitution. Considering the decisions which have taken place in the Supreme Court of the United States, and the courts of several of the states, and the strong reason on which those decisions are founded, I look upon that point as at rest. It is the actual and not the supposed state of things at the time of the abandonment, that must govern the case. There is nothing in the nature of the contract, from which it may be inferred that the rights of the parties are to depend upon supposed losses. When the assured hears of a loss, if he means to claim for a total loss, he should give speedy notice of his intention to abandon. But whether or not there be at that time a total loss, is a fact to be proved. To say that the total loss exists, because you have been informed so, is bad reasoning. To say that it exists then, because it existed some time before, is begging the question. Capture and adverse detention, while they continue, are considered in laxo as a total loss; but in their nature, they certainly are not so, because there is a chance of recapture or restitution. It ap-'
The plaintiff’s counsel contends, that in the present case, the total loss existed at the time of the abandonment, because restitution was not actually made. But the court, from which there was no appeal, had directed an ¡acquittal, had made an order for restitution, and the captain of the vessel, with the order in his pocket, was on the point of obtaining restitution. The Supreme Court of the United States decided, in Marshall v. The Delaware Insurance Company, 4 Crunch 202., a case circumstanced precisely like the present, that the total loss had ceased to exist. But the plaintiff relies on our own decision in the case of Dutilh v. Gatliff. It will be found however, that between these two cases, there is a striking difference. In Dutilh v. Gatliff, the decree of acquittal was by the English court at Nassau in New Providence, from which an appeal lay to a superior court in England, and from the state of the case on which the court decided, it did not appear, whether at the moment of abandonment, the case was not open to an appeal. I presume it was, because no order for restitution had been issued, and the vessel remained in the custody of the captors. While the case remains open to an appeal, and the property is held by the captor, the peril cannot be said to be over. But when no appeal lies, and the party is in possession of an order for restitution, there is a reasonable presumption that the property will be immediately restored. It has been urged indeed, that in these times of violence and confusion, the danger never ceases till restitution is actually
I consider this as one of those cases, in which it is not of so much importance what the rule is, as that it be settled. I am satisfied with the rule, as it is laid down by the Chief Justice.
Judgment for a partial loss.