1 Johns. Cas. 147 | N.Y. Sup. Ct. | 1799
delivered the opinion of the court'. Under the circumstances of the case, the deposition of the captain was properly received. The examination of witnesses,.. who áre about to depart from this state, de bene esse, on a proper notice, has already received the sanction., and is established by the practice of .this court, - If the rule were now to be introduced, I should be inclined to exclude such an examination; but the court think it not material, whether an examination be taken before or after issue* joined or the declaration filed1. The necessity of this mode of ■ taking testimony may as often occur before as after any pleadings in the cause, It is always more disadvantageous to the party who is obliged to have recourse to this expedient, and there-;. by expose the grounds of (his claim or defence, than to his adversary, who has to cross-examine .merely, aiffiitmáy often be'essential to the discovery of truth and. the end's of justice. The notice of the examination in this case must 1 also be deemed sufficient. The plaintiff gave all the timé in
The two remaining points may be considered in one view.
The condition of the vessel after the capture no doubt entitled the plaintiff to abandon, and claim a total loss. He did abandon on the first intelligence of her situation, but the vessel, without the knowledge of either party, was then decreed to be restored, which, it is contended, changed the total into a partial loss, and deprived the plaintiff of the right to abandon. The decree was on the 9th, and the abandonment on the 12th of June. Without deciding how far the subsequent prohibition by the British government against the vessel’s proceeding to her port of destination, would entitle the assured on the ship to abandon and *claim a to- [*151] tal loss, we think that the abandonment ought to be supported, as referring to the condition of the vessel previous to the decree by which she was released. The assured in every case must act according to the information he possesses. For the correctness of that information he is answerable, but he cannot be answerable that the state of things which existed at the period of its date, shall continue. The plaintiff therefore, had a right to proceed, and make the abandonment upon the information he then possessed ; and the abandonment being rightfully made, must be definifive.
Judgment'for the plaintiff.
The Revised Statutes new regulate conditiunal examinations, and provide that whenever any action pending in any court of law, being a court of record, shall have been commenced by the actual service of process, or when the defendant shall have appeared to the action, either party may have the testimony of any witness taken, conditionally to be used in the cases and under the circumstances therein prescribed, vol-. 2, p. 391, § 1. And the officer,.to whom application is made for the examination of the witness, may make an order requiring the adverse party to attend the examination, at such time and place as shall be therein specified ; which time and- place shall not exceed twenty days from the date of such order, and shall be as much shorter as the exigency of the case may require, and the residence of the adverse party or his attorney will allow, in order to afford sufficient opportunity to attend such examination. 2 R. S. 392, § 3. For the general practice upon this subject see Gra. Frac. 2d ed. 584—588.
See Marshall, 525. Pothier, Cont. d’lnsur. n, 138. 2 Emerig. 195, 197.
In Goss v. Withers, 2 Burr. 683, 696, 2 Ld. Ken 325, Lord Mansfield observed, “ I cannot find a single book, ancient or ipodern, which does not say, that in case of the ship being taken, the insured may demand as for a total loss and abandonment.” But see Church v. Bedient, Caines’ Cas. in Err. 21, and Hallet v. Peyton, id., 28, per Lansing, Ch., 40, 41, where it is stated that this decision went'upon a' different ground. See also Hamilton v. Mendez, 2 Burr. 1212. A capture or detention, within the meaning of the policy, will authorize an abandonment of the ship or cargo. Levering v. Mercantile Ins. Co., 12 Pick. 348. Dorr v. Neto England Ins. Co.; 11 Mass. R. 1. Dorr v. Union Ins. Co., 8 Mass. R. 494. Munson v. New England Ins. Co., 4 Mass. R. 88. Delano .v. Bedford Ins. Co., 10 Mass. R. 347. Sewall, J., in Oliver v. Newburyport Ins. Co , 3 Mass. R. 37, 50. Rhinelander v. The Ins. Co. of Pennsylvania, 4 Crunch, 29. But the abandonment must bé ■ made before the cause of the loss is removed. Tucker v. United Ins. Co., 12 Mass. R. 288, Amory v. Jones, 6 Mass. R. 318. Richardson v. Marine Ins. Co., id., 102. Shaw, Ch. J., in Lovering v. Mercantile Ins. Co., 12 Pick. 348, See, Martin v. Salem Ins. Co., 2 Mass. R. 420. Dorr v. New England Ins. Co., 4 Mass. R. 221. The cases of Church v. Bedient and Hallett v. Peyton, 1 Caines’ Cas. in Err. 21-43, may be" considered conclusive-on this question, in New York. They decide, that where there has been a Capture^ and a restoration, and, subsequently to the restoration, an abandonment, though the" fact of restoration may be unknown to the assured at the time of the abandonment, that the assured cannot claim for a total loss: -But a distinction is taken "between this case, and that in which the abandonment precedes the restoration.' In the latter case Lansing, ■ Ch., pp. 38-40, admits that the right to recover for-a total loss would exist. Upon this distinction, the principal case is approved, while Slocum v. Burling, infra,. 151, and Livingston v. Hastie and Patrick, infra, vol. 3, p. 293, are overruled. It must, however, be noted, that the statement of facts upon which tlie jüdg-. ment in the principal case proceeded, is materially different, in the opinion of Lansing, Ch., (1 Caines’Cas. in Err. 38, 39,) from, that in the text. The capture is there stated to have taken place on the 26th day of May, 1-798'. The abandonment on the 12tb of June was made, therefore, during the three