or warned not to enter, to a near open port.” Premium seven and a half per cent.; to return two and a half per cent., if the risk ends at Carlshune., in safety. The declaration contained the usual money counts. The African, having on board goods of the plaintiff, to the amount insured, sailed from Philadelphia, on the 10th of April, 1810, and arrived at Gotheniurgh, in the month of June following. After a long detention, by contrary winds, she set sail from Gotheniurgh, on the 8th of October, 1810, having on board the same cargo which was laden on board of her at Philadelphia, and, among the rest, the goods of the plaintiff, and she was, afterwards, wrecked in the Baltic, and wholly lost, with her cargo.
At the trial, the plaintiff produced two respectable merchants in the city of New- York, as witnesses, who were well acquainted with the Baltic trade, and one of whom was at G'othenburgh in 1810, and 1811, who testified, that it was usual, and customary, for American vessels bound from the United, States, up the Baltic, to stop at Gotheniurgh, for information *respecting the market, and for orders, and that they often discharge their cargoes there, but that they had never known or heard of an instance of an American vessel taking in a cargo at Gotheniurgh, for the Baltic; and that when American vessels proceed from Gotheniurgh up the Baltic with cargoes, it was, according to their knowledge and belief, with the same cargoes which they brought thither, and without landing them.
The plaintiff, also, gave in evidence, the order on which the insurance was made, and the letter accompanying the same, which it is unnecessary to state.
A verdict, by consent, was taken for the plaintiff, subject to the opinion of the court, on a case made, and which either party was to be at liberty to turn into a special verdict. The plaintiff claimed, at first, to recover for a total loss.
T. L. Ogden, for the plaintiff,
stated, that he demanded only a return of the premium, with interest.
Hoffman, and S. Jones, jun., contra,
said, that they did not deny, that the plaintiff was entitled to a return of premium; but they insisted, that it could not be recovered in this action : and that, at any rate, interest ought not tobe allowed. Interest is not recovered, of course, in these cases.
Ogden, in reply.
The courts have uniformly given to the plaintiff a return of the premium, on the money counts in the declaration, when they considered him not entitled to recover for a total loss, on the ground that the policy never attached. It would be unreasonable to require the plaintiff to bring two actions, one for a total loss, and the other for a return of premium.
The plniutiff abandons all claim, except for the return of the premium, and on this he claims interest. The defendant.-: admit their liability for the premium, hut insist that it ought not to be recovered in this action, and contend, also, that interest outfit not to be allowed.
The cause has hitherto been contested on different principles : #lhe plaintiff claiming to be paid a total loss on the goods. His action, however, is adapted to recot cr the premium : anrl as the defendants have not taken measures to compel him to elect whether he would go for the premium or not. the court cannot deny him a right to reenter according to his cam. The di fondants are in default. Thev ought to have paid the premium into court, and then, if the plaintiff had persisted, it would have been at his own hazard. The question of interest in actions of this nature, is within the sound discretion of the court, and it will be allowed or not, according to circumstances. It is certainly true, that the defendants hme had the use of the plaintiff's money, and we think they ought to repay it with interest, from the time when they ought to have taken their stand, and paid the premium into court. They never could have imagined that they could successfully contest the loss, because the goods were not laden on board at (!ntt(iCtur^h, and keep the premium also. We are of opinion, that the plaintiff is entitled to recover the premium, and interest thereon, from the time of the commencement of the suit. In taxing the costs, the plaintiff will not have a right to any costs, accruing on his claim for a loss under the policy.
Rule accordingly.