WARD V. HALLAM.' Statute of Limitations. The words, "beyond sea," in the act of 1713, mean out of the limits of the United States. THE plaintiff was a citizen of, and resident in, South Carolina, and the defendant was a citizen of, and resident in, Pennsylvania, for six years before the present action (founded upon *a promissory note) was *218] commenced. The statute of limitations being pleaded, judgment was confessed for the plaintiff, subject to the opinion of the court, whether, under the circumstances of the case, the plea in bar was sufficient? The point was argued, on the 9th of April 1793, by Rawle, for the plaintiff, and Dallas, for the defendant. In support of the plea, it was contended, that the exception in favor of absentees, contained in the last section of the act of Pennsylvania (1 Dall. Laws 97), obviously extended only to the case of creditors beyond sea; for it is to their case expressly, that the words "returning into this province," are applied. So, in the construction of the statute of 21 Jac. I., c. 16, respecting absent creditors, and the act of 4 & 5 Ann., c. 16, respecting absent debtors, the exception has always been confined to persons absent beyond seas; and Scotland has been adjudged not to be within the statute. Espinasse, 153; 1 Bl. Rep. 286. The several American provinces, before the revolution, were as nearly connected, under the same sovereign, as England and Scotland; since the revolution, they form one nation; it would be a geographical absurdity, to consider an inhabitant of South Carolina to be beyond the seas, in relation to Pennsylvania; and it would be a political absurdity, to consider him, in the phraseology of some English books, to be in foreign parts. If an inhabitant of South Carolina is to be regarded in either light, so must an inhabitant of Delaware or New Jersey. It was answered, for the plaintiff, that, in the general opinion, the act of limitations had never been supposed to operate against persons who were out of the state, whether they resided in any other part of America, or were actually beyond sea. The act of Pennsylvania is subsequent in date to the English statutes on the same subject; and conforms to the 21 Jac. I., except that the 21 Jac. I., speaks of returning from beyond seas, while the act speaks of returning into this province. The words "beyond seas," however, will be found to have been adopted as a general substitute for the words "out of the realm," from the time that the two kingdoms of England and Scotland, became united under one king. To consider those words in our code, in a strict geographical sense, would render them extravagant, and in many cases useless; for a man might reside at Lima, or Cape Horn, and yet be within the operation of the act. Besides, the legislature of Pennsylvania has no political or moral right, to make laws to bind persons who are out of her jurisdiction. 18. c. 1 Yeates 329. Thurston v. Fisher, 9 S. &. R. 288; S. P. Kline v. Kline, 20 Penn. St. 503; Gonder v. Estabrook, 33 Id. 374. But see Murray v. Baker, 3 Wheat. 541; Shelby v. Guy, 11 Id. 361; Bank of Alexandria v. Dyer, 14 Pet. 14. Fuller v. McCall. After the argument, the COURT declared a desire to obtain some information, as to the practice of other states on the subject; *and kept the cause under advisement for that purpose, until the present term; [*219 when they gave judgment for the defendant, as in the case of a nonsuit. Judgment for the defendant. INGRAHAM V. GIBBS. THE jury brought in their verdict in dollars, and the court ordered it to be so recorded. (a) FULLER V. MCCALL.' Marine insurance.-Abandonment. When the voyage is lost, though the cargo insured be not damaged to one-half its value, the assured may abandon, and claim for a total loss. In case of a constructive total loss, the assured must abandon, without unnecessary delay, after receiving notice thereof, and the abandonment must be unconditional. THIS was an action on a policy of insurance, upon the cargo of the sloop Mary, William Southern, master, at and from Philadelphia to Trinidad, in which the plaintiff declared against the defendant, one of the underwriters, as for a total loss. On the trial, the following facts appeared: The plaintiff having shipped goods on board the sloop, to the invoice amount of 9317., she sailed from Philadelphia, on the 5th of May 1789, and soon afterwards, encountered a gale of wind, during which she sprung a leak, that obliged her, on the 20th of June, to make St. Bartholomews, the nearest port. A survey was there immediately had upon the sloop, which was found incapable of continuing longer at sea; and also on the cargo, which proved to be very much damaged; and on the 3d, 7th, 20th and 27th of July, N. Dawes, of St. Bartholomews, communicated these circumstances, by letters, to the plaintiff, and further informed him, that as the cargo was not fit to be reshipped, it had been sold for 3067 pieces of eight, which (together with the account sales) N. Dawes sent in specie, by Capt. Southern, to the plaintiff. When the first account of the sloop's putting into St. Bartholomews arrived at Philadelphia (on the 23d of July), the plaintiff was at Cape May; but his clerk (who had general instructions to transact his business) opened Mr. Dawes's first letter, and by the instructions of Mr. Fisher, whom the plaintiff had directed him to consult, he showed it to the defendant, and to such other of the underwriters as were in the city, on the day it was received, or on the ensuing day. These gentlemen expressed no opinion upon the occasion; but the clerk, by the advice of Mr. Fisher, opened a policy upon the return-cargo, for the benefit of whom it might concern, and the former underwriters * first offered the choice of also underwriting this policy. On the 28th were [*220 (a) This, I believe, is the first instance of a judicial compensation in dollars, in the state courts of Pennsylvania. 18. c. 1 Yeates 464. Fuller v. McCall. of July, the plaintiff came back to the city, and approved what his clerk had done. On the 29th of July, Captain Southern arrived, in the sloop, at Philadelphia, bringing with him Mr. Dawes's last dispatches, but no money. The plaintiff thereupon called a meeting of all the underwriters, submitted the facts and papers to them; made a verbal claim as for a total loss, and it was agreed, on all hands, that without prejudice to either party, Capt. Southern should be arrested, to compel him to account for the money. It was not, however, until the 6th of November 1789, that the plaintiff addressed a letter to the underwriters, making a formal abandonment of all the property in the sloop; and on the same day, they answered, that they did not think it proper to accept the abandonment, but offered to pay an average loss. Upon these facts, a verdict was taken for the plaintiff, subject to the opinion of the court, whether they established a total, or an average, loss? On the argument, however, two positions were asserted, by the defendant's counsel: 1st. That the circumstances of the case did not warrant an abandonment, as for a total loss and 2d. That even if the plaintiff had a right so to abandon, he had not exercised that right in due time. On the first position, they had stated the general doctrine to be clearly established, that the owner of goods cannot abandon, unless, at some period or other of the voyage, there has been a total loss; and where the loss is not an absolute destruction of the property, an abandonment will not be allowed, unless the damage amounts to a moiety of the value. Park, Ins. 164, 165. 188. This was not the fact, in the present instance; the goods were not destroyed; they were not damaged to near the amount of a moiety of their value; nor can it be said, that the voyage was defeated, since the sloop, by returning to Philadelphia, has proved that she might have gone to Trinidad, where the superior price would have compensated for every expense. What, indeed, constitutes the defeating of a voyage, must depend on the circumstances of each case; and notwithstanding the generality of the expres sion in Park 164, it will be found, that when he, as well as other writers on the subject, enters into an exemplification of the rule, it is done by specifying instances of a total loss of the vessel, by tempest, capture or decay, and by instances of a total destruction of the cargo, or, at least, of such damage, as does not leave sufficient to defray the expense of repair, &c. Park, Ins. 165, 174, 176, 187, 189. On the second position, they urged, that the abandonment was neither complete, nor in time. The indulgence allowed, under any circumstances, to the insured, to convert a partial into a *total loss, is a great one, and *221] ought to be fairly merited by a candid and explicit conduct: to observe a cautious silence, in expectation of events, is not the characteristic of such conduct. The insured has, unquestionably, a right to say, in all cases, that he will not abandon; while he remains silent, he cannot be presumed to have abandoned; it is a matter of election on his part, and he must do some act, in due time, in order to manifest his election. In short, he must, unequivocally, and on the first opportunity, after information of the loss, abandon the whole property, before he can recover for a total loss. Park, Ins. 161, 162; 1 T. R. 615, 613; Doug. 220; 2 Burr. 1119; 1 T. R. 608; 2 Ibid. 407. In the present case, there was no positive act of abandonment, until the 8th of November 1789; the communication made by the plaintiff's clerk to Fuller v. McCall. the underwriters, was unaccompanied with any declaration of abandonment, and the same communication would have been made, whether a partial, or a total loss, is claimed; and the claim for a total loss made by the plaintiff, after the return of Captain Southern, and without any abandonment of property, was clearly irregular and inoperative. Besides, the second policy was opened for the benefit of whom it might concern, by the express advice of the plaintiff's agent; at that time, therefore, he did not choose to make an election; and as there was no moment, previous to the 6th of November, when any act was done by him to vest the property in the insurers, they could have no interest in it, at the time of the loss, and therefore, could derive no indemnity from the second policy. 1 Burr. 490–7; 1 Wils. 10. The acts of Fisher were the acts of the plaintiff's agent, approved by, and obligatory upon him. 1 T. R. 115, 116; 2 Ibid. 189, in note. For the plaintiff, it was premised, on the first position, that this was an undertaking by the underwriters, that the cargo of the sloop Mary should be safely carried to Trinidad; and if it does not arrive at the destined port, they undertake to pay the value insured. It is also a natural construction of the contract, that if the voyage is defeated, though there is no destruction of the ship or cargo, the underwriters must answer as for a total loss; and the principle is recognised and exemplified by a variety of authorities in the most unqualified terms. Park, Ins. 164-5-7, 174-5-6, 180-7-9; 1 T. R. 191, 615. The plaintiff had a right to have his goods carried to Trinidad; and that they were not carried thither, is an incontestible proof that the voyage was defeated. It is true, that the sloop was not totally wrecked, nor the cargo totally destroyed; but the surveys show, that both were in such a condition, as to render it not worth while to prosecute the voyage, and that is a sufficient *ground, agreeable to the authorities cited, upon which the insured may abandon, and convert a partial into a total loss. [*222 On the second position, the plaintiff's counsel admitted, that the insured must make and declare his election to abandon, within a reasonable time after knowledge of the loss; but they urged, that what constitutes a reasonable time has never been specifically defined; it must depend on the particular circumstances of each case; and it has been said to be something like notice on bills of exchange. Park, Ins. 92, 192-3; 1 T. R. 616, 614. The communications made to the underwriters, during the absence of the plaintiff, were as prompt as could be exacted; and his approbation of the conduct of his clerk, cannot certainly be considered as a waiver of his right of abandonment. It was reasonable for him to wait, until he knew the issue of the sales at St. Bartholomews, before he exercised that right; and in the precaution of opening the second policy (which it was insisted would be valid, whether the plaintiff, or the underwriters, should ultimately be deemed interested in the property), he acted with candor and prudence. But the moment Captain Southern arrived, the plaintiff claimed as for a total loss; and though the underwriters refused to admit the claim, they co-operated with him in the subsequent measures to recover the money: he steered a middle course, for their mutual benefit, and shall not be prejudiced by it. 2 T. R 407; Park, Ins. 173. It is true, the authority says, that "unless the owner does some act signifying the intention to abandon, it is only a partial loss" (1 T. R. 615), but the early claim for a total loss was a sufficient manifesta. 2 DALL.-13 193 Lloyd v. Taylor. tion of the plaintiff's intention; and no form of abandonment is prescribed by any law or authority extant. The plaintiff's conduct, on the 29th of July, was tantamount to an abandonment; but even if the formal act of the 6th of November was necessary, it will be remembered, that the underwriters have suffered no inconvenience or injury, by the delay. THE COURT, on the 24th of January 1794, delivered their opinion, "that the plaintiff cannot recover in this action, as for a total loss;"" and judgment nisi was, thereupon, entered for the defendant. (a) E. Tilghman and Lewis, for the plaintiff. Ingersoll and M. Levy, for the defendant. *223] JANUARY TERM, 1795. *LLOYD'S Lessee v. TAYLOR.' Execution of power of sale. When a testator directs his lands to be sold, and the proceeds distributed, but appoints no one to execute the power, a sale by the surviving executor is valid. THE question in this case arose upon a devise, that after the death of the testator's wife, certain lands should be sold, and the money divided among children; but the will did not declare by whom the sale should be made. The land was sold, however, by the survivor of two executors; and it was submitted for the opinion of the court, whether that sale was good, the plaintiff's counsel citing the following authorities in support of it: Dyer 371; Hard. 419; 1 Ch. Ca. 179; 2 Leon. 320; Shep. 449; Sir T. Jones 25; Savil. 72; 3 P. Wms. 92; 1 Atk. 420. BY THE COURT.-It is a plain case. Let judgment be entered for the plaintiff. Rawle, for the plaintiff. Bankson, for the defendant. (a) A motion, on behalf of the plaintiff, was made and granted, for re-argument, which took place on the 10th of September 1794. THE COURT, however, adhered to their former opinion; and on the 22d of January 1795, gave 'The opinion of the Chief Justice, embracing the two resolutions stated in the head-note, will be found in 1 Yeates 470. The rule, that when a voyage is defeated, the insured may abandon, and recover for a total loss, is a sound one, when applied to the subject insured. Goold v. Shaw, 1 Johns. Cas. 293. Thus, Judge STORY Bays, in Bradlie v. Maryland Ins. Co., 12 Pet. 401, that "a total loss of cargo may be effected, not merely by the destruction of that cargo, but by a permanent incapacity of the ship to perform the voyage-that is, a destruction of the contemplated adventure." S. P. Columbian Ins. Co. v. Catlet, 12 Wheat. 383; Robinson v. Judgment for the defendant. Commonwealth Ins. Co., 3 Sumn. 220. But a |