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-' *293pears to me, that the right of abandonment on these artificial or technical losses, may be carried so far as to produce ~ mischief. It tends to divert the contract of insurance from its original intent, which was the indemnification of the assured in case of loss. It often creates an anxiety in the assured not to pursue the voyage, but to throw it upon the underwriters, and may lead to improper practices. I am therefore not for extending it, farther than it has been already carried. I beg it may be understood, that I have not the least suspicion of any improper conduct in the plaintiff. There is nothing in the evidence to warrant it. What I have said is the result of my general observation on a variety of-cases which have occurred.
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 *294made; that there w^s no certainty in this case, that the exe- ' cutive poster would not arrest the course of justice. I cannot say that there is not, in fact, some weight in this observation. But it would be dangerous ground for this court to take. We have always hitherto considered the courts of all foreign nations as on the same footing, and intitled to the same respect. The Supreme Court of our nation acts on the same principle. There is no reason therefore why we should depart from it in this instance. To say that the loss remained total, at the time of abandonment in this case, would be going farther than this court have ever gone; and for the reasons already assigned, I am against extending the right of abandonment. It is the opinion of the court, that the plaintiff is intitled to recover, only for a partial loss.
Brackenridge J.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.