Open main menu

Page:United States Reports, Volume 2.djvu/288

This page needs to be proofread.

282 Cases ruled and adjudged in the 1797. the fpecial verdiét ; For, when a vellel has never been heard of, after liich alapfe of time, the legal prefumption is, that lheis l lofl. 2 Sim. 1199. Park. 71. 2. 1·`or zbe dyindant, Luv:} urged two points: ill. That proof of a lofs had not been made three months preriouily to the com- mencementof the prefent aélion, agrecably to the ilipulation contained in the policy. 2d. That the aifured had never dau- dmrd to the underwriters. . On thefijl point he obferved, that the memorandum at the foot of the policy provided, that •* in cafe of a lofs, the mo- ney lhall be paid in three months after proof of the fame"; and if the underwriter was entitled to three months for making payment. after the proof had been exhibited, there was no caufe of aélion at the time this fuit was initituted. Some pre- vious evidence of the loifs was indifpenfable, by the exprefs a- greement of the parties. '1`he nature of the evidence is not particularly delined ; but the proteit of the captain, the aflidavit of one of the feamcn, cr fome other credible atteflation of the fat}, ihould have been furnilhed. If acreditor agrees to give a day for payment, after a certain event takes place, he cannot fue before that day arrives. In the prcfent initance, it is not futiicient to make the proof in Court; it lhould be made in pai: ; as in the cafe in Palma- 160, where the ground of aélion was a declaration by the defendant, that “ after you have prov- ed that I {truck you, &c. then I do alfume to pay you £20.” The plaintifl"s letter demanding payment of the underwriters was dated the 1lt of Natemlwr 1792 ; and the fuit was inltitut- ed the til; of _7rmu¤ry I793. The objeétion muilc, therefore, he fatal to the right of a&ion. On the jénmd point, it was inliilzed, that the duty of the ai`- fured required him to give notice of the lots, in a reafonable time, and to niundan to the underwriter. Puri:. 71. 2. 161. 2 Mag. bu. r7.;. 177. Had this been done, the underwri- ter would have been enabled to make a diligent and feafonable enquiry after the veflel ; which may not have been found, be- caufe {he has not been properly fought for. Six years elapfed between the date of the policy, and the notice of the- lofs. The delay is unreafonable; and, if it does not entirely deilroy all means of inveiligation, mull: certainly enereafe to the underwri- ter, the uncertainty and ditliculty ol afcertaining the reality of the lofs ; while it opens a door to the affured for the perpetra- tion of the greatelt frauds. It is for this reafon, that the law not only requires an abandonment, in fuch cafes, but the aban- · donment thould be made on · the firit opportunity ; and that, - even where there is no hope of recovering any part of the pro- perty. It is like the cafe of notice to the drawer of a Bill of llxchange when the drawee rcfufes payment. t T. Rep. 613.