Kennedy v. The Baltimore Insurance Company
3 H&J 367 (1813)
The insurer issued a policy on the insured's ship. The ship was captured by a
British vessel of war. The insured abandoned the ship to the insurer, filed a claim for a total loss,
and the insurer paid him. The insurer's agent received money from the British for the freight
awarded on an appeal to the high court of appeals in Great Britain. On appeal, the court held
that at the time of the abandonment for a total loss, all the insured's interest in the ship ceased
and the right of the insurer commenced. The court found that the insured made his election to
take that which was substituted by mutual consent as an equivalent for the ship, and the insurers
gave its assent to it by its acceptance. Further, the court ruled that the freight was susceptible of
apportionment, and therefore the insured was entitled to all the emoluments or earnings of the
ship anterior to the capture to be adjusted by a jury on such evidence that was legally admissible.
The court indicated that the action for money had and received was an equitable action, and the
insured could resort to and prove all equitable circumstances incident to the case. OUTCOME:
The court reversed the trial court's judgment in favor of the insurer and awarded a procedendo.
Judges: Jeremiah Townley Chase; John Johnson; John Buchanan; Richard Tilghman Earle.
Attorneys: Robert Goodloe Harper and John Purviance for Appellant; William Pinkney and Walter Dorsey for Appellees.
Appellate Court Records:
COURT OF APPEALS (Docket) Kennedy v. The Baltimore Insurance Company, 1813, December Term, no. 50 [MSA S414-6, 1/66/14/24].
COURT OF APPEALS (Judgments, Western Shore) Kennedy v. The Baltimore Insurance Company, 1813, December Term, no. 50 [MSA S382-91, 1/62/11/20].
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