Page:Harvard Law Review Volume 12.djvu/233

213 RECENT CASES. 213 insured were finally fixed when he gave notice of abandonment, or whether those rights could be affected by a subsequent change in the condition of the ship. It was arguable from certain early cases of ships captured and recaptured that what was once a constructive total loss could thus become a partial loss. Hamilton v. Mendes, 2 Burr. 1199. No English case, how- ever, had gone to the length of the contention of the underwriters that they could themselves expend money upon a ship which was once a con- structive total loss, and that by improving her condition to such an extent that her owner if uninsured could no longer with reason think of aban- doning her they could change her from a total loss to a partial loss, and thus escape full liability. The result would be that the distinction be- tween a constructive total loss and a partial loss would no longer depend upon the question, when would a prudent uninsured owner abandon iiis ship ? but, how much would an astute underwriter expend to turn a con- structive total loss into a partial one? However, the subtle contention failed. The problem in insurance is always the practical one, how did the parties understand their contract? It has indeed been the theory of the text-books that a ship is an actual total loss only when it ceases to exist in specie as a ship. But as a matter of fact the owner doubtless under- stood that it would be considered an actual total loss if his vessel sunk. The title to the wreck would then pass to the underwriters, and the risk of marketing it be upon them. As the Lord Chancellor declared, when his vessel reached the bottom of the sea the owner expected to be quit of it, though modern mechanical skill might bring it up again. At all events, the decision must effect the great object in mercantile law, — certainty. RECENT CASES. Bills and Notes — Checks — Notice to Drawer. — The holder of a check brought an action thereon against the drawer, but the declaration did not allege that notice of its dishonor was given him. On the demurrer to a declaration, held, that judgment be given for the plaintiff. Spink <Sr» Keyes Drug Co. v. Rayn Drue Co., 75 N. W. Rep. 18 (Minn.). To charge the drawer of a bill, due notice to him must be alleged and proved by the holder. On the other hand, the drawer of a check must have suffered loss by reason of no notice being given him in order to escape liability on that ground. 2 Daniel, Neg. Inst. § 1587. Therefore the court properly holds that the burden of establishing loss is upon the drawer, and that he should allege and ))rove " no notice." Harbeck v. Craft, i, Duer, 122. He is then assisted by a presumption that damage was suffered by him. Ford v. McCluns;, 5 W. Va. 156. Yet this presumption only shifts to the holder the burden of adducing evidence to rebut it, and the burden of proof remains throughout on the drawer. For other reasons it seems that " no notice" should be treated as an affirmative defence, not only in the case of checks, but also in that of all bills and notes. The cause of action is complete upon default at maturity, even though no notice be given. This is shown by the fa:t that the drawer or indorser may thereafter waive the laches of the holder. Bills and Notes — Transfer — Notice. — The defendant made a promissory note payable to A, who indorsed it to the plaintiff. The defendant was induced to make the note by the fraudulent representations of A. Held, that to recover on the note the plaintiff must take it without such notice of the fraud as would put a prudent man upon inquiry. Limerick Natiotial Bank v. Adams, 40 Atl. Rep. 166 (Vt.). In accord is the early decision in England of Gill v. Cuhitt, 3 B. & C. 466. That case has since been overruled by Goodman v. Harvey, 4 A. & E. 870, and is contra to the great weight of authority in this country. Johnson v. IVay, 27 Oh. St. 374; Hatch-