¶1There is no doubt in our minds on the construction ot ¡.he agreement in this policy, respecting the claim and prosecution of an appeal in case of capture. The assured undertook to make the claim and to prosecute the appeal of themselves ; and their right to recover of the underwriters .depended upon their performance of this agreement. The underwriters were to contribute to the expense. But the expense was first to be incurred, or at least the foundation *96of it should have been laid by an actual claim. There is no excuse for the neglect to file a claim. It was not the business of the underwriters to give the necessary bond, or to advance any part of the sum of money required. They undertook to indemnify for this, * in addition to the principal loss, if there should be a final condemnation ; and to contribute towards this expense, if there should be an acquittal.
¶2Judgment on the verdict.