Page:United States Reports, Volume 2.djvu/227

 Surnsmt Coon or Penn/jlwnia. 22t‘ total, lofs, is a great one, and ought to be fairly merited by a 1794. candid and explicit conduct: To obferve a cautious lilence, in liv`) expectation of events, is not the eharacleriltic of fuch conduct. The infured has, unqueltionably, a right to fay in all cafes, that he will not abandon; while he remains lilent, he cannot be pre- fumed to have abandoned ; it is :1 matter of election on his part, and he mult do fome ac}, in due time, in order to manifelt his ‘ election. In {hott, he mult _unequivocally, and on the lirll: op- portunity after information of the lofs, abandon the whole pro- perty, before he can recover for a total lofs. Puri: Iryi I6I• 162. 1 YZ Rep. 615. 613. Doug. 220. 2 Burr. 1 r 19. 1 T Rep. 608. 2 EIT Rep. 407. In the prefent cafe, 'there was no politive act of abandonment ’till the 8th of November 1789 ; the communication made by the plaintill"s clerk to the- underwriters was unaccompanied with any declaration of aban- donment, and the fame communication would have been made, whether a partial, or a total lofs, is claimed ; and the claim for a total lofs made by the plalntill`, after the return of captain ‘ Sautbern, and without any abandonment of property, was clear- ly irregular and inoperative. Belides, the fecond policy was o· pened for the benefit of whom it might concem, bythe exprefs advice of the plaintif}"s agent ; at that time, therefore, he did not chufe to make an election ; and as there was no moment, previous to the 6th of November, when any act was done by him to vell: the property in the infurers, they could have no in- » terell: in it, at the time of the lofs, and therefore, could derive no indemnity from the fecond policy. 1 Burr. 490. 7i ` 1 HG1:. 10. The acts of Fyber were the acts of the plaintiti"s ` agent, approved by, and obligatory upon him. 1 TZ Rep.] 15. 116. 2 Yi Rqi. 1 89. in nat. For tbe plaintgf it was premifed, on the 1/i paftian, that. this was an undertaking by the underwriters, that the cargo of the {loop Mary fhould be fafely carried to Triniahd ; and if it does not arrive at the deltined port, they undertake to pay the value infurerl. It is alfo a natural conliruclion of the contract, that if the voyage is defeated, though there is no deilruction of the ihip or cargo, the underwriters mufl: anfwer, as forato· - tzil lofs ; and the principle is recognized and exemplified by a variety of authorities in the molt unqualified terms. Parke In/I 164. 5. 7. 174. 5. 6. 180- 7. 9. 1 T. Rep. 191. 615. The plaintitfhed a right to have his goods carried to 2'Hnidnd ; and that they were not carried thither, is an inconteftible proof, that the voyage was tiel`t;atcd. It is true, that the lloop was not totally wrecked, not the cargo totally dellroyed; but the furveys lhcw, that both were in 1`uch a condition, as to render _ it not worth while to profccute the voyage, and that is a fufli~ cient

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