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Smith title is the only title to the premises in | authorized by law. And whenever it appeared dispute claimed by anyone. The patent is con- to the recorder of land titles for the Territory, clusive against the government, estops it and by the oath or affirmation of a competent witany person claiming under it by subsequent ness or witnesses, that any person was entitled grant; and if the Act of 1864 conveys a new to a tract of land under the provisions of the title to plaintiff, he is a subsequent grantee. Act, it was his duty to issue to such person a The Act of 1864 was intended to perfect the certificate to that effect. Upon this certificate, J. Smith claim as it then stood, and not to dis- on the application of the claimant, a location of turb titles by giving a new title to plaintiff. the land was to be made by the principal deputy surveyor for the Territory, or under his direction, who was required to have the location surveyed and a plat of the survey returned to the recorder, with a notice designating the tract and the name of the claimant.

The fact that part of the land described in the patent was covered by an adverse superior claim, does not invalidate the patent as to the residue.

Mitchell v. U. S., 15 Pet., 88; Danforth v. Wear, 9 Wheat., 677.

The letter of Mr. Graham of Sep. 15, 1823, does not, and under the Act of April 22, 1822, perfecting the location made in 1818, could not affect the location.

The location spoken of in the Act of 1822, was the act done by the holder of the warrant and not the perfection of the exchange by the Recorder of Land Titles.

Gibson v. Chouteau, 39 Mo., 560.

The patent is conclusive against the government, unless it contravenes some law of Congress, and it would repeal and withdraw any reservation made by order of the Commissioner of the General Land Office.

It is conclusive as to all acts of the Executive Department prior to its issue, and especially after a lapse of nearly half a century.

Hoofnagle v. Anderson, 7 Wheat., 212. All the points made by the plaintiff here were raised by Gibson v. Chouteau, 13 Wall., 92, 20 L. ed., 534, and not deemed worthy of notice by the court. See, brief of Glover and Shepley on file in that case.

Mr. Justice Field delivered the opinion of

the court:

The Act also provided for the transmission, by the recorder, to the Commissioner of the General Land Office, of a report of the claims allowed and locations made, and for the delivery to the claimant of a certificate of his claim and location, *which would entitle him, [*622 on being forwarded to the commissioner, to a patent of the United States. The Act declared that, in all cases where the location was made under its provisions, the title of the claimant to the injured land should revert to and vest in the United States.

The two arpents of land in New Madrid, claimed by J. Smith, and confirmed to him, were injured by earthquakes, and upon proof of the fact, the Recorder of Land Titles at St. Louis, on the 16th of November, 1815, gave him a certificate to that effect, and that he or his legal representatives were entitled, under the Act of Congress, to locate any quantity of land, not exceeding 160 acres, on any of the public land of the territory of Missouri, the sale of which was authorized by law. This certificate was numbered 159.

Afterwards, on the 22d of October, 1816, one James Smith (blacksmith), and Sarah, his wife, describing themselves as of the County of Cape This is an action of ejectment for the posses- Girardeau, executed a deed to Rufus Easton, in sion of certain real property situated in the City terms conveying the two arpents, aptly describof St. Louis, State of Missouri. Both parties ing them and stating that they had been contrace their title to the demanded premises firmed to him by the commissioners for the adthrough one J. Smith, who asserted a claim to justment of land titles in the Territory, by the 621*] two arpents of land in the Village of *Lit- name of J. Smith, and were known on their tle Prairie in the district, now County of New books and claims and certificate No. 1116; and Madrid in that State, by virtue of his settle- that the land had been materially injured by ment thereon, under permission from the Span-earthquakes. The deed also conveyed to Easton ish authorities previous to the year 1800, and his inhabitation and cultivation of the same prior to, and on the 20th of December, 1803. His claim was recognized as valid, and on the 9th of July, 1811, was confirmed by the commissioners appointed under the Act of Congress of March 2, 1805, 2 Stat. at L., 324, to ascertain and adjust the titles and claims to land in the Territory of Orleans and the District of Louisiana, who decided that he was entitled, under the provisions of the Act, to a patent for the two arpents. The Commissioner's certificate of this confirmation is numbered 1116.

In the years 1811 and 1812, a large part of the land in the County of New Madrid was injured by earthquakes; and on the 17th of February, 1815, Congress passed an Act for the relief of parties who had suffered in this way. 3 Stat. at L., 211. By this Act any person owning land in the county which had been materially injured, was authorized to locate a like quantity of land on any of the public lands of the Territory of Missouri, the sale of which was

the right to locate other lands in lieu of those injured, under the Act of Congress, and the lands which might be thus located. This deed was acknowledged before a judge of the circuit court of the Territory, on the day of its date and was on the following month recorded in New Madrid County. Under the certificate thus issued, a location was made on the application of Easton, and in March, 1818, the tract located was surveyed by the Deputy-Surveyor-General of the Territory, and on the 23d of February, 1823, the survey was returned to the Recorder of Land Titles. This survey was numbered 2491.

Easton conveyed his interest to William Russell, *prior to 1827, and on the 27th of [*623 May of that year a patent of the United States was issued granting the tract thus located and surveyed, to J. Smith or his legal representatives. This patent was transmitted to Russell, and he afterward conveyed his interest in the land to the defendant. The patent embraces the premises in controversy, and it is admitted that the defendant is possessed of whatever title

passed by the conveyance of James Smith to Easton in 1816, and that he had been in the adverse possession of the premises for more than ten years prior to the commencement of the present action.

On the 30th of June, 1864, Congress passed an Act granting to J. Smith or his legal representatives, all the title and interest of the United States in the land embraced in the location under the New Madrid certificate 159 and survey 2491, subject to a proviso that nothing in the Act should affect any land previously confirmed and surveyed by them, or any adverse title or interest.

The plaintiff, relying upon this Act of 1864, produced an instrument purporting to be a contract between one J. Smith and one Andrew P. Gillespie, dated on the 14th of April, 1816, by which the said Smith agreed to sell and convey to Gillespie, for the consideration of $100 already paid, and $50 to be thereafter paid, all his lots in the Village of Little Prairie; and a deed from him to Gillespie, dated on the 5th of March, 1819, in terms conveying the two arpents of land in the village, and any certificate of location on land in the Territory, the sale of which was authorized by law. These instruments purported to be signed by the mark of J. Smith, and in the deed he described himself as of the County of New Madrid, lately of the Village of Little Prairie. Fifty-two years afterwards, these instruments for the first time made their appearance and were placed on record in the Recorder's office of the County. The plaintiff contended that the grantor in this deed was the veritable J. Smith, who was the owner in 1811 of the two arpents in the Village of Little Prairie, and objected to the admission of the deed to Easton from James Smith, "because it could not be presumed that a deed from James Smith, blacksmith, of Cape Girardeau, was a deed from J. Smith, of New Madrid." The plaintiff was possessed of whatever title passed by the deed to Gillespie.

We are of opinion that the court ruled correctly in admitting the deed to Easton. The deed describes the property as that claimed by J. Smith; it declares that the property was confirmed to the grantor by that name, and it gives the number of the certificate of confirmation. It was acknowledged before a judge of the circuit court and immediately placed on record, where it was open to inspection by every one. Easton acted openly upon the supposition that he had acquired the title of the two arpents, and the right of location on other lands, in consequence of their being materially injured by earthquakes. Upon his application such location was made in the immediate vicinity of St. Louis. He had a survey made of the land located by the official surveyor of the government. He had the survey transmitted to the recorder of land titles; and his successor in interest prosecuted the matter until he obtained a patent of the United States. In the meantime a severe and protracted litigation grew up between claimants under the deed and claimants under Spanish concessions, and in none of the controversies was any suggestion made that the grantor to Easton was not the veritable J. Smith who owned the two arpents of land in Little Prairie. It would have been manifest error if, in the face 631*] of these facts, after the lapse of half *a

century, when the property acquired under the deed has become of immense value, and the City of St. Louis has extended over it, the court had held that the deed to Easton is not to be presumed to be the deed of J. Smith, of Little Prairie, because the grantor describes himself as James Smith, of the County of Cape Girardeau. The real Smith had undoubtedly removed from the Village of Little Prairie before the date of this deed. That village had been greatly injured, if not destroyed, by the earthquakes, and the inhabitants had been authorized by Congress, in consequence of the injuries thus received, to select lands elsewhere. Cape Girardeau, until 1813, was a part of the County of New Madrid, and the simple fact that the grantor describes himself as of that place after Little Prairie had been abandoned, is of little consequence, as his identity with the original owner of the land is sufficiently stated in the body of the instrument. See, Mott v. Smith, 16 Cal., 554.

In the deed to Gillespie the grantor describes himself as lately of the Village of Little Prairie, and this description is open to the same objection as the description of the residence of James Smith in his deed. The reasonable and natural presumption arising from all the circumstances is, that Gillespie, finding, after receiving his deed, that Smith had already conveyed the property to Easton, and the right of location on other lands in consequence of its injury, did not assert any claim to the land, and that thus the deed had been suffered to remain without any attempt to enforce it until the increased value of the land located had tempted speculators to test its efficacy by litigation. The exeecution of the contract and the second deed of Smith, with his mark, is a circumstance, but in the light of the facts following their execution, a slight one against the theory of identity of the grantors in the two deeds. The use of a mark for his name may have resulted from temporary causes, or difficulty in writing, and not inability to write. But whatever the cause, the use of the mark in the one case, and of *the [*632 name in the other, before a public officer, was sanctioned by the acknowledgment of the grantor, whether made by his own hand or by another in his presence and by his direction.

The objections taken to the admission of the patent in evidence were: 1, that the patent was void, because located upon land the sale of which was not authorized by law; 2, that the patent had been decided by the Supreme Court of the United States to be null and void in Easton v. Salisbury, 21 How., 426, 16 L. ed., 181; in Stoddard v. Chambers, 2 How., 284, and in Mills v. Stoddard, 8 How., 345; and, 3d, that the patent was located upon lands reserved from sale; was not located in accordance with sectional and quarter sectional lines, but upon land not surveyed; and was not located in season to be validated by the Act of Congress of April 26, 1822.

The first objection may be disregarded, for there was no evidence of the fact, upon the supposed existence of which the objection is founded.

The cases cited under the second objection are not evidence in this case; the records of them are not before us. The reports of their decision in Howard may be referred to as expositions of law upon the facts there disclosed,

but they are not evidence of those facts in other | cial recognition of the proceedings taken by cases. In Easton v. Salisbury the controversy the claimant which bound the government. was between a Spanish concession to Mordecai Bell, and the title of Easton under the location upon the New Madrid certificate issued to Smith. The claim under the Spanish concession was confirmed by Act of Congress to the legal representatives of Bell. The land claimed under this concession was reserved from sale, and could not, therefore, be covered by the New Madrid certificate. So far as the location interfered with the concession it was void, and to that extent the patent was void also, but no further. And that is all there is in the decision in that case. The general language of the opinion must be construed and limited by the facts of the case.

It often happened that the location made at the request of claimants by deputy-surveyors were upon lands which had not been surveyed by the government, or if surveyed the locations did not conform to the sectional and quarter sectional lines of the surveys. To remedy defects of this character Congress passed the Act of April 26, 1822, 3 Stat. at L., 668. That Act refers in its 1st section to the actual locations made by the deputy-surveyor at the request of the claimant, and not to the completed appropriation of the land by the return of the plat of the survey to the Recorder of Land Titles.

633*] *It is true the court said that by the Act of April, 1822, it was provided that all warrants under the New Madrid Act which were not located within one year were void; and it would seem that the court supposed that the warrant issued to Smith had not been located within that period. The court was speaking at the time of a completed and not an initiatory location, one which would appropriate the land; and evidently considered that there could be no such appropriation until the survey was returned to the recorder of land titles, as had been held in several cases. Barry v. Gamble, 3 How., 52; Lessieur v. Price, 12 How., 75. Of such return after the passage of the Act of 1822, there was no evidence in the record in that case. In this case it is admitted that the survey was thus returned within the year; and, consequently, the location of the tract was completed.

In Stoddard v. Chambers, and Mills v. Stod

The actual location of the New Madrid certificate issued to Smith, was made and approved in 1818; and objection to it for want of conformity to the lines of the public surveys, was removed by the 1st section of the Act of 1822. This actual location became a perfected location so as to appropriate the land on the return of the survey to the recorder in 1823, except as against the Spanish concession, which was confirmed to the representatives of Bell. Besides this, a defect in a survey is cured by the issue of a patent thereon.

It follows, from the views expressed, that the Circuit Court did not err in its rulings, and its judgment must be affirmed.

*ANTONIO AICARDI, Piff. in Err., [*635

บ.

STATE OF ALABAMA.

(See S. C., 19 Wall., 635-640.)

dard, the controversy was also between a Span- State decision, when followed-Act, when strict

ly construed.

1. A construction of a state statute by the Supreme Court of the State, is authoritative in this

court.

ish concession and a New Madrid certificate. The patent issued in those cases upon the location of the New Madrid certificate, was held void because it covered land reserved from sale. There is nothing in that ruling which bears upon the question presented in the case at bar. In several cases which were before this court prior to that of Easton v. Salisbury, it was held, as already stated, that there could be no effectual appropriation of the land located under a Argued Apr. 23, 24, 1874. Decided May 4, New Madrid certificate until the survey made by the officer of the government was returned

2. An Act to authorize gaming should be construed strictly; every reasonable doubt should be so resolved as to limit the powers and rights claimed under its authority.

[No. 306.]

1874.

to the recorder of land titles. The Act of Con-IN ERROR to the Supreme Court of the State

of Alabama.

gress, 3 Stat. at L., 211, as mentioned in the
commencement of this opinion, declared that
when a location was made under its provisions,
the title of the person to the land injured
should vest in the United States. It contem-
plated that there should be a concurrent investi-
ture of title; that the title of the owners of the
land injured in New Madrid County should
pass to the United States and that, at the same
time, the title to the land located in lieu there-
of should pass to the claimant, or rather the
634] right to the title, for the strict legal
title did not pass until the patent issued; and
that this exchange of titles should take place
when the claimant obtained his patent certifi-
cate, or the right to such certificate, and that
he could not acquire until the plat of the survey
was returned to the Recorder of Land Titles.
Until the plat was placed in the public deposi-
tory in the Territory, of evidences of title issu-
ing from the United States, there was no offi-ute-see note, 12 L. ed. U. §. 169.

The case is stated by the court.

Messrs. S. F. Rice and J. A. Elmore, for plaintiff in error.

Messrs. P. Phillips and Alex. White, for defendant in error.

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the Supreme Court of the State of Alabama.

The record discloses, so far as is necessary to state it, the following case:

NOTE. Jurisdiction of U. S. Supreme Court to declare state law void as in conflict with State Constitution; to revise decrees of state courts as to construe their own statutes-see notes 62 L. R. A. struction of state laws. Power of States to con542; 63 L. R. A. 575; 7 L. ed. U. S. 679.

It is for state courts to construe their own stat sions, except when specially authorized to by statutes. Supreme Court will not review their deoi

The plaintiff in error was indicted for keep- | v. Moses. That case involved the same stating a gaming table. utes and presented the same questions as the case before us. In that case a majority of the judges held that the Act was unwarranted by the Constitution of the State and, therefore, void. But a majority also held that keeping a gaming table was not within the purview of the Act, and that the Act did not affect the preexisting provision of the Code upon that subject. One of the judges, holding this latter view, said: "The Act declares that the association was allowed to be formed for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription, which shall entitle the holders thereof to such prizes as may be awarded to them. This is the means provided by the law to carry on 'business' under the franchise. This may be done, whatever it may mean, without the violation of the statutes against gambling; that is, without keeping a gaming table in the manner forbidden by the revised Code. The scheme of operations set out in the bill is clearly that of keeping or exhibiting 'a table for gaming.'. The Legislature did not intend to repeal this section of the Code by the law allowing the formation of this association, and turn loose upon society the evils thus restrained."

The Legislature of Alabama passed an Act, approved December 31, 1868, entitled "An Act to Establish the Mobile Charitable Association, for the Benefit of the Common School Fund of Mobile County, without Distinction of Color." It authorized certain persons therein named to form themselves into a partnership association, under the name and style of J. C. Moses & Co., and to establish and carry on the business specified. Before commencing business they were required to pay to the Board of School Commissioners of Mobile County, for the use of the 638*] public schools of that county, the sum of $1,000, “And annually thereafter a like amount for the term of ten years, or so long as said partnership shall choose to do business under the provisions of this Act; it being understood and agreed that said payment of $1,000 per annum by said partnership to said common school fund, is the consideration upon which this privilege is granted, and whenever said company shall fail to pay said sum according to the provisions of this Act, then and in that case the right to do business shall cease." The last section declared "That this Act shall remain in full force and effect for ten years upon the consideration herein contained, during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.'

On the 8th of March, 1871, the Legislature repealed the Act.

Moses & Co. paid the amount required as a condition precedent, and continued to pay from time to time thereafter as if the repealing Act had not been passed.

It was admitted that the defendant in keeping the gaming table acted under the authority of Moses & Co., and as their agent. The offense was charged to have been committed on the 2d of December, 1871.

The bill of exceptions sets forth fully the evidence given at the trial. The table was "a table similar in many respects to a table commonly known and called a roulette table, or table and wheel similar to a roulette table, at which money was bet by persons operating at said table; that the money was bet in this manner." The manner of using the wheel and table and of conducting the gaming process are then fully described.

This construction of the statute is authorita

tive in this court. We concur in the views expressed by the learned judge from whose opinion we have quoted. Such an Act should be construed strictly. Every reasonable doubt should be so resolved as to limit the powers and rights claimed under its authority. Implications and intendments should have no [*640 place except as they are inevitable from the language or the context. But aside from these views it is not to be supposed that it was the purpose of the Act to give to the association the power to carry on, throughout the State, for the period of ten years, gaming in the form disclosed in this record, in defiance of the legislative authority, and without any check or limitation save such as they might choose to impose upon themselves.

This conclusion renders it unnecessary to consider the constitutional validity of the original Act or the effect of the repealing Act. We have not found it necessary to consider those subjects. The judgment of the Circuit Court is affirmed.

PANY, Plff. in Err.,

v.

The court instructed the jury in substance THE GREAT WESTERN INSURANCE COMthat if the defendant had kept a gaming table they should find him guilty. The defendant excepted. He thereupon asked certain instructions which were refused, and he excepted to the refusal.

JAMES FOGARTY.

(See S. C., 19 Wall., 640-646.)

is.

*1. The cases in reference to the line of distinction between a total and a partial marine loss examined, and the principle announced that it is not

The Supreme Court of the State affirmed the Total and partial marine loss—total loss, what judgment, and this writ of error has been pros639*] ecuted to bring the judgment *of affirmance before this court for review. The plaintiff in error insists that the Act of December 31, 1868, was, when the repealing Act was passed, as between Moses & Co. and the State, a contract, and that the repealing Act was a violation of that contract within the meaning of the Constitution of the United States and, therefore, void.

Our attention has been called to the opinions of the Judges of the Supreme Court of Alabama in the case of Mayor, etc., of Mobile

necessary to a total loss that there should be an ab

*Headnotes by Mr. Justice MILLER.

NOTE.-Marine insurance; what is a total los8. Where articles are included in a memorandum as perishable, they must be completely destroyed before the insured can recover as for a total loss. Maggrath v. Church, 1 Caines, 196. 2 Am. Dec., 173. If goods mentioned in memorandum articles exist in specie after the loss at an intermediate port,

point of destination.

solute extinction or destruction of the thing insured, so that nothing of it can be delivered at the 2. A destruction in specie so that, while some of Its component elements or parts may remain, while the thing which was insured in the character or description by which it was insured or destroyed, is a total loss.

3. Hence, where machinery was insured, to wit: the parts of a sugar packing machine, and no part of the same was delivered in a condition capable of use, it is a total loss, though more than half the pieces in number and value may be delivered, and

would have some value as old iron.

[blocks in formation]

the court:

various parts necessary for a complete sugar packing machine, including as part of it, three sets of truck irons, and also other extra truck irons. It is described in the bill of lading and invoice as eight pieces and eight boxes, composing one sugar packer and three trucks.

The vessel on which these articles were being transported from New York to New Haven, just before reaching the latter city, was driven on the rocks in a violent gale, was filled with water and finally became a total wreck, and was abandoned to the underwriters. Their agent at Havana took possession and was engaged about a month in raising the cargo. A large number of the pieces composing plaintiff's machinery was recovered and tendered to him at

Havana, which he refused to receive on the ground that the Insurance Company was liable to him as for a total loss. They denied that under the circumstances of the case there was a total loss within the meaning of the policy; and the soundness of the instruction to the jury on that point given and refused by the circuit court on the trial, is the only question now before us.

There is very little conflict of testimony as to what was recovered, and what was its condition when tendered to plaintiff.

This was an action on a policy of marine insurance, in which the plaintiff recovered a judgment for $2,611.95, and costs. The policy was an open one, and the indorsements procured by plaintiff on it was of insurance for $2,250, on It was all of iron. About half of it in weight machinery on board the bark Ella Adele, at and was saved, and the remainder left at the bottom from New York to New Haven, free from par- of the sea. That which was saved was entireticular average. The memorandum clause of ly useless as machinery, and was of no value 641*] the policy provides that *machines and except as old iron, for which purpose it would machinery of every description are warranted sell for about $50. The machinery in working by the assured, free from average unless gen-order was worth $2,250. That which was saved eral. The machinery insured consisted of the was much broken and rusted, so that it would not by subsequent events. Total loss from capture ceases with a final decree of restitution. Lee v. Boardman, 3 Mass., 238, 3 Am. Dec., 134; Rhinelander v. Ins. Co. of Fa., 4 Cranch, 29; Marshall v. Del. Ins. Co., 4 Cranch, 202; Lee v. Boardman, 3 Mass., 238; Church v. Bedient, 1 Caines, 21; Hallett v. Peyton. 1 Caines, 28; Penny v. N. Y. Ins. Co., 3 Caines, 157.

or part of them are sent on by insured to port of destination, the insured cannot recover as for a total loss. Marcardier v. Chesapeake Ins. Co., 8 Cranch, 48; Hugg v. Augusta Ins. Co., 7 How. 606; Morean v. U. S. Ins. Co., 3 Wash. C. C., 259; affd., 1 Wheat., 219; Potter v. Prov. Ins. Co., 4 Mason, 301.

An injury to the amount of more than half of the value of the vessel, when repaired, will constitute a technical total loss, authorizing an abandonment. Dickey v. Am. Ins. Co., 3 Wend., 658, 20 Am. Dec., 763; Abbott v. Browne, 1 Caines, 292, 2 Am. Dec., 187; Hyde v. La. State Ins. Co., 2 Mart. N. S. 410, 14 Am. Dec. 196: Patapsco Ins. Co. v. Southgate, 5 Pet. 604; Bradlie v. Maryland Ins. Co., 12 Pet. 378; Wood v. L. & K. Ins. Co., 6 Mass., 479; Deblois v. Ocean Ins. Co., 16 Pick., 303, 28 Am. Dec., 245; Hall v. Ocean Ins. Co., 21 Pick., 472; Ritchie v. U. S. Ins. Co., 5 S. & R., 501; Peters v. Phonix Ins. Co., 3 S. & R., 25: Wallerstein v. Columbian Ins. Co., 44 N. Y., 204, 4 Am. Rep., 664.

To enable the assured to recover for a total loss there must be a total destruction of value; the terms "free from average, unless general" in a policy of insurance, are convertible with total loss. Aranzamendi v. La. Ins. Co., 2 La., 432, 22 Am. Dec., 136.

Where master is part owner, insurers are not liable as for a total loss, in case of an injury, from one of the perils insured against, to more than one half the value of the vessel where a sale is made by

such master under circumstances which would not authorize him to sell as master. Peirce v. Ocean Ins. Co., 18 Pick., 83; 29 Am. Dec. 567.

Valuation in policy is conclusive as to vessel's value in determining whether expense of repairing will exceed half her value, and thus constitute a technical total loss. Orrok v. Com. Ins. Co., 21 Pick.. 456, 32 Am. Dec. 271; Allen v. Com. Ins. Co., 1 Gray, 157; Deblois v. Ocean Ins. Co., 16 Pick., 303. 28 Am. Dec., 245.

Whether there is a total or partial loss of profits, is to be determined by whether more or less than one half in value of the subject has been lost. Abbott v. Sebor, 3 Johns. Cas., 39, 2 Am. Dec., 139. Total loss by capture by enemy determined by actual state of loss at the time of abandonment and

Capture of a neutral vessel as prize by an armed belligerent power is a total loss. Rhinelander v. Ins. Co. of Pa., 4 Cranch, 29.

To warrant abandonment of stranded vessel as total loss, it must appear that delivery of vessel from the peril would be impracticable or would absorb all her value. Copelin v. Phoenix Ins. Co., 46 Mo., 211, 2 Am. Rep., 504.

If a partial loss to a vessel is repaired and a total loss afterwards occurs during term of policy, insurer is liable for both losses, although it exceed the amount named in the policy. Matheson v. Eq. Marine Ins. Co., 118 Mass., 209, 19 Am. Rep., 441.

Abandonment is not necessary in case of an actual total loss. Chamberling v. McCall, 3 Esp., 242; Abel v. Potts, 2 Johns., 150; Gordon v. Bowne, 2 Caines, 173.

If a vessel be captured and recaptured, it is a total loss if the voyage be lost or not worth pursu ing, or the salvage and expenses exceed one half the value of the property. Marine Ins. Co. of Alex. v. Tucker. 3 Cranch, 357; Queen v. Union Ins. Co., 2 Wash., 331.

To recover for a total loss there must be in fact what is equivalent to a total loss or a sufficient abandonment tendered to the underwriters. Bullard v. Roger Williams Ins. Co., 1 Curt., 148.

when she has sustained such extensive damage that In the English practice, a ship is a total loss it would not be reasonably practical to repair her. The ordinary measure of prudence which the courts have adopted is this: If the ship, when repaired, will not be worth the sum which it would be necessary to expend upon her, the repairs are, practically speaking, impossible, and it is a case of total loss. Moss v. Smith, 9 Man., Gr. & S., 103; Irving v. Mantang, 1 Man., Gr. & S., 176, 304; Roselle v. Gurnley, 11 C. B. (2 J. Scott.) 186; Granger v. Martin, 2 Best & S., 467; Adams v. McKenzie, 13 C. B. N. S., 442.

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