Sun Mutual Insurance v. Hall , 104 Mass. 507 ( 1870 )

Chapman, C. J.

The abandonment, from the time it was accepted, related back to the time of the loss, and put the insurers in place of the owners. 2 Phil. Ins. § 1708. Clark v. Wilson, 103 Mass. 219. The master of the vessel, in the discharge ot his duties to all parties interested, had purchased the draft in question with the proceeds of the cargo and sent it to the de» fendants, who had notice that it was the property oí the plaintiffs. They ought to have sent the draft or its proceeds to the plaintiffs, whose property it was; or to Wylie, Knevals & Company, who would have received it for the plaintiffs. But this action should not have been brought by Wylie, Knevals & Company, for they had no right to the proceeds as against the plaintiffs. It is properly brought in the name of the plaintiffs, who were the owners of the draft and its proceeds.

The action of the plaintiffs against the owner of the vessel, in which they summoned these defendants as trustees, is no waiver of the plaintiffs’ rights, as against the defendants. No judgment has been rendered in it; there was no intention on the part of the plaintiffs to confirm the appropriation of their funds which the defendants had made ; and no change has been caused by it in the position of the defendants. There is no principle upon which this action can be barred by the proceeding.

The plaintiffs are entitled to recover, upon the facts found by the judge, the whole proceeds of the draft and interest.

■Exceptions overruled.