Page:United States Reports, Volume 2.djvu/290

 284 Cases ruled and adjudged in the typ;. ting to give a notice, which could bc of no ufe to thc drawer. /vs.! t T Rm. 4to. '1`he principle and authority of the cafes are the fame. If any thing exills, that can be abandoned, the infurcr ought to have notice ; but if anotice can be of no ufe to him, there can be no reafon why he lhould receive it, any more than the drawer of a bill of exchange, who has no effects in the handsof the drawee. It is true, that it would be expe- dienr, on the part of the aflined, to give notice and abandon, under any circumllances of lofs ; bccaufe then, if any portion of the property infurcd was favedfrom the general wreck, he would have a complete right to an indenmity ; which he would not have, fhould a part of the property be faved, and he has ne- glected that precaution. The omiflion, however, is at the peril of the allitrcd; and the rifques to which the omillion expofes him, will always bea fufhcient guard againll fraud. Every prudent man will give the notice : No defigning man will negleé]: it, left it fhould fruftrate his purpofc. T hotb who omit it will, therefore, generally, be of that defcription of men, from whom httl—: is to be feared ; and the omillion will be the mcre efleéi: of inadvertancy, or ignorance. But, although prudence rc- commends the praélice, the law does not enjoin it. lf, indeed, itis made effcntial, that notice, which was intended only for a ihield againft the affured, will be converted intoa fword, in the hands of the underwriter; anda Court of juliice mufl: con· dcmn the owner of a veffel and cargo to fuftain the lots, againlt which he meant to fecurehimlizlf, merely for omitting a form, which, if complied with, could nothave produced the flightell: advantage to the underwriter. '1`he penalty is furely difpro- portioned to the tranfgreflion. On the fry? trial, THE Comer, in the charge to the Jury, expreffed a wilh, that the plaintiffliad given earlier notice of the lofs to the underwriters; as it would have rcbutted every iufpicion of unfair and collufivc conduct. ** lt was enough, however, (the Cr-ner jusrrtcrt obferved) that no faft of that kind had been proved, nor, indeed, alledgcd; lince fraud is ncvcr to be prefumed. T he defendant’s couniel has urged, that, before the ailinrd can recover for atotal loi`<_ there mul} be an exprefs and feaiimablc abandonment. But by the word *‘abandonment," l uuderllaud a yielding, ceding, or giving up; and, in general, it applies to cafes, where there has been a great lofs, and the t-flitrcd, reforting to the policy for an indemiiity, furrenders =t·liatevt:r is left of the property infured to the underwriters. ~.`c cannot, however, conceive, that when there is nothing left ro pim- up, there can be any thing to abandon ; aud if there is nothing to abandon, it would bc abfurd, as well as uficlefs, to Zatili upon a formal afi: of abandonment. Under all theft: cir- ¢a’uLl.u.u S of the cafe, therefore, we think that the plaintifiii vnu: ·:

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