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Page:United States Reports, Volume 2.djvu/289

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Serum Coun or Pmeyjlwuia. 283 613. 4. Wy'}. p. g. rg. Md. p. 344. 3. Ibid. 546. 1797. _/I 4. 2 Ala . 174. 2 Emmg. 173. _ . hor`! In reply, Levyobferved, on the point, that the proof of the lofs arofe, in legal contemplation, from the fat}, that the velfel had failed, but for an unreafonable length of time had not been heard of; and therefore, he inlilled, that it was not ne- oellary to make the proof of lofs at the Infurance Oliice, three · months before the right of aélion accrued. In anfwering the fmnd point, he treated the idea of an abandonment, where no portion of the property was fared, as novel, unprecedented, ani abfurd. The term abandonment has received a fixed and denlnite lignification; to which, it is eflential. that fomething fhould be faved, in order that fom-thing may be abandoned. Perl:. 161. I Rep. 613. 4. The real purpofe, for requiring an abandonment, muil: be to transfer to the underwriters ` - the property and the means of reclaiming and preferving it, which mult otherwife continue iu the allitred. But when it is demonltratively obvious, that the fubjeél matter has utterly ceafed to exift; that the lofs is total and fmal; as where a {hip has been confumed by {ire, or has funk i11 the o- cean ;what can be the ufe, or beneiit of an abandonment ? And if there can be no ufc, Lex rternimm mgit ad vamrfeu inpjfbilia. The fallacyof the oppolite argument lies in an application of the duties, which the law has tnzpofed upon the ailixretl, in the cafe of one defcription of a total lofs, to a total lofs of an en- tirely different defcription. The term “ total lofs," in relation to infurances, is technical ; and includes, as appears from Park: 11.:. 61. two fpecies; one, wherea part of the property has been faved, and ilill exiils ; the other, where the whole pro- perry is utterly dellroyed. In the former cafe, abandonment is neceifary to the fafety of the infurer ; it is .the title, without which he cannot reclaim the rg/iduum, nor cxercife tholi: a&s of ownerfhip, that are elllzntial to reduce it to pollellion. But in the latter cafe, no fuch purpofe can he contemplated, or attain- ed; and the common fenfe of mankind would be (iartled at the idea, that it was neccilhry to give up to another, the ownerlhip of a thing not in being; of a thing which had been completely annihilated. 'I`o require this ufelefs and abfurd aé`t, from the alfured, under the heavy penalty of forfeiting his infurance, would be wantonly opprellive and unjult. The analogy, {lated by the opponte counftl, between notice of abandonment, and notice of a protelled bill of exchange, is admitted and adopted: But, it mult be reeollcélcd, that the holder of the bill negle£l:· ing to give notice, only lofes his reeourfe upon the drawer, in cafe the drawee had ctfeélzs in his hards ; for, if the drawee had no elfeéts, there need not be notice given of the refufal to accept, or pay 5 and the holder {hall not lofe his debt for omit- Nn 2 ting