*But Brackenridge, Justice, said, that he thought there was sufficient evidence at the trial, to induce the jury to find an abandonment;
and on that ground alone, he concurred, in refusing a new trial. For the general ground, on which the opinion of the rest of the court was founded, did not appear to him so conclusive, and so satisfactory, as it did to them.
Motion for anew trial refused : and judgment rendered on the verdict for the plaintiffs. 1
In Brown v. Phoenix Ins. Co., 4 Binn. 464, Chief Justice Tilghman said, that he did not consider the law as settled by this decision, The court was not unanimous. “ It was not acquiesced in by the bar; and would have been carried to the court of errors and appeals, had *247the nature of the case admitted it. But being a determination on a case stated, it was supposed, that it could not be carried up by writ of error. There certainly are some weighty objections to the principle adopted by the court >n that case. It takes away the necessity of abandonment, in any case whatever, without affording sufficient protection to the rights of the underwriter; because, instead of paying for the whole loss, and receiving an assignment of the whole chance of recovery, he is compelled to relinquish that chance, and may have to pay the whole loss, deducting a trifling sum for the value of the chance. Besides, there seem- an impropriety in proving a total loss, and recovering for less than a total loss. There will be great difficulty, too, in reducing the rule to practice, for, by what standard are the jury to estimate the hope of recovery ? It depends not on any known principles of law or justice, but frequently on the character, the temper, the caprice of the prince, or on secret political motives.” He wished to be understood, however, as not having formed a decided opinion on the question. But Mr. Justice Yeates said, in the same case (p. 470), that he saw no reason for retracting the opinion which he formed in Jones v. The Insurance Co.