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Page:United States Reports, Volume 2.djvu/226

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tea Casts ruled and adjudged in the · l794· derwriters were lirlt offered the choice of aifo urzderwritittg vw`! this policy. On the 28th of j'u@·, the plaintiff came bael: to the city, and approved what his clerk had done. On the 29th of sfufy captain Sau!.l·t·rn arrived in the {loop at 1·‘bihuL·@l·in, bringing with him Nr. Dun-r.r’; lalt dilpatehes, but no money. '1`he plaintiff thereupon called a meeting of all the underwriters, fubmitted the lhéls and papers to them 5 made a verbal claim as for a total lofs, and it was agreed, on all hands, that without prejudice to either party, Capt. S:ut}·;m·{hould be arrelied, to ` compel him to account for the money. lt was not, however, ’till the 6th of1’:t·m1£·zr 1 739, that the plaintiff addrelled a iet- ter to the underwriters, making a formal abandonment of all the property in the {loop; and, on the fame day, they anfwered, that they dnl not thinl;_ it proper to accept the abandonment, but otilsred to pay an average lofs. Upon thefe fails, a verdié]: was taken for the plaintiff fubjeélc _ to the opinion of the Court, whether they eltablilheda total, or an average, lol`s P ` On the argument, however, two polirions were aH`erted, by rb.: d$1rdanr'r counfel ;-——r{l. That the circurnlianees of the cafe did not warrant an abandonment, as for a total lofs: And 2d. 'Ihat even if the plaintiff had a right fo to abandon, he had not exercifed that right in due time. On the rfpgitiarr, they {lated the genera] dodrine to` be clearly cllablilhed, that the owner of goods cannot abandon, un- lefs at fome period or other ofthe voyage, there has been a total lofs; and where the lofs is not an abfolute dellruftion of the property, an abandonment will not be allowed, unlefs the da- mage amounts to a moiety of the value. Parke Irgf r 64, 16;, 1 88. This was not the fa•Sl: in the prelent inliance; the goods were not deltroyed ; they were not damaged to near the amount of a moiety of their value; nor can it be laid, that the voyage was defeated, line: the {loop, by returning to P£·i.lu1'.¤@l·izr, has proved that {he might have gone to Trirsizlnrl, where the fuperior price would have ccmpenlated for every cxpence. What, indeed, conltitutcs the defeating of a voyage mult depend on the cir- cumlianees of each eale; and notwithllanding the generality of the cxprcllion in Parke 164, it will be found, that when he, as - xv ell as ozlzerwriters on the lubje¤Sl,entcrs into an exemplilication of the rule, it is done by fpecifying inllanccs of a total lofs of the vcliel, by tempcll, capture, or decay, and by inllances of a total dellruélion of the cargo, or, at lcall, of fuch damage, as v dots not ·lravc fuilitient to defray the expence of repair, Src. /‘.-:;·l.· .l·_·,/Z 16;. 174. :76. t87. 189. On. tln·f·r4·:.·rI polition zhty urged, that the abandonment waz nerlalitzr ecmpltat, nor in time. The indul;;encc allowed under any t·iz‘ct.:;.·!ta11cc:s to °l:e infurcd, to tcrmvtsrt a partial, into;1 _ ‘ tot; ,