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(43) Page 213. The direct reverse of this article is the English law; but upon what principle of reason or justice, it would be difficult to say.
(44) Page 215. This article also differs from the English law; for in such a case, under that law, no return of premium would be granted. It is laid down in the English books, supported by many adjudged cases, that the whole premium is acquired and due from the moment the risk has commenced, if it be entire and for one entire premium. Marshall, 661.
(45) Page 215. This is what is called a double insurance, and the rule laid down in the text was formerly adopted in England, but a different one now prevails under the English law. Instead of making the underwriters contribute to the extent of their respective subscriptions, in the order of the dates of the policies, and thus exonerating subsequent underwriters, when the sums previously subscribed cover the whole risk, the policies are all considered as making but one insurance.
They are all good to the extent of the value of the effects put in risk, and should the underwriters on one policy only, be sued and compelled to pay the whole amount, they may recover a ratable proportion from the underwriters on the other policies. See Marshall, 147-150.
(16) Page 219. The right of abandonment is carried to a greater length under the English, than the French law. The various and often contradictory decisions on this important branch of the law of maritime insurance, to be found in the English and American reports, cannot be accurately classed or reduced to any sys. tematic form in the short compass of an ordinary note. Marshall, whose treatise on insurance is one of the most perspicuous and best digested works we have on any single branch of our law, has discussed the doctrine of abandonment, and exhibited its various bearings with great clearness and precision; I cannot, therefore, do better than to refer the student to his very valuable work, page 559—615. There is one variation between the French and the English law on this subject, which appears on the face of the text of this Code; it is this: to authorize abandonment under the French
law, the loss or damage to the subject matter insured, must amount to at least three fourths of its value ; whereas, by the English law, the loss or damage need be only one half the value of the property insured.
(47) Page 221. Here again the French law differs from the Eoglish. In the latter no fixed periods of time are established, within which abandonment must be made; but it is required to be made within a reasonable time, after advice received of the loss. See Marshall, 589. What is reasonable time is considered partly a question of law and partly of fact. The jury are to find the facts, and the judges to determine the law on those facts--that is, they are to determine the law without having any positive or settled rule of law, by which to be guided. The various and shifting opinions of men, and the particular circumstances of every case, are to form the grounds of their decision.
It is easy to conceive that this mode of ascertaining what the law is, in any case of abandonment, must be altogether vague and uncertain—it leaves every thing in doubt and perplexity. The merchant never knows when he has complied with the law, in making his abandonment, because wbat he may thiok reasonable time, another may consider as quite unreasonable. People's ideas of what is reasonable differ as much as their opinions on any other subject. One man will say that twenty-four hours are reasonable time, another will require a week, a third, a month, or even six months, and thus a very important branch of issurance law is left quite unsettled, and becomes the source of endless disputes and litigation. I cannot, therefore, yield to the reasoning of the learned author of the work above cited, in regard to positive regulations, as to the time within which abandonment should be made. I humbly conceive that an express limitation of the time, in proportion to the distance of the place where the loss may happen, is much more likely to prevent fraud and inconvenience, than to leave it to depend upon casual circumstances, and the fluctuating notions of what may be judged reasonable time. Whenever the law can establish positive rules, it appears to me infinitely wiser to do so than to leave any thing to general opinion, and the often dubious discretion of a court. The French law, as laid down in the text of this code, fixes the time for ma king the abandonment, in the most explicit manner, according to the distance of the place where the loss has happened, leaving nothing which negligence or improbity may pervert, or which ignorance may misconstrue.
These observations are equally applicable to the provisions ia this code, in regard to the time for the presentment of bills of exchange. See page 137. of this volume.
The same uncertainty prevails in the English law on this subject, as on that of abandonment, in cases of insurance. There are Do positive rules. The decisions in the books say that due diligence must be used; that the bill must be presented within a reasonable time: and what amounts to due diligence, or may be considered as reasonable time, is a question of law arising out of the facts of every particular case. See Chitty on Bills, 197—202. Surely nothing can be more doubtful and indefinite. Hence our law books are full of cases in which this question is litigated and decided-but never defiuitively settled.
(48) Page 229. In England, by stat. 22 G. III. c. 25. § 1. the ransoming of any British vessel captured by the enemy is absolutely prohibited, consequently, the underwriters would not be responsible for any composition made to obtain the release of a vessel under capture. In the United States congress have lately passed a law to the same effect.
(49) Page 241. The limitation of actions on abandonment, in cases of insurance, is strictly confined to the same periods of time within which the abandonment itself must be made; but in all other actions on policies of insurance, the limitation extends to five years.
(50) Page 243. The French law term fin de non recevoir, literally conveys but a very imperfect idea of its meaning. It is the exceptio of the civil law, of which there are a great many different sorts. See Institut. Lib. 18. Tit. 13. de exceptionibus. Dig. 44. Tit. 1. Cod. Lib. 8. Tit. 36. As the word exception in English has precisely the same meaning, and conveys a very dis
tinct notion of the French expression, I have adopted it in the translation; but as it is not very generally used in our law books, I have added the common law term bar.
(51) Page 261. The word syndic, in the original text, answers precisely to our English word assignee, when applied to the management of bankrupts' estates, though it also admits of a much more extensive meaning. In companies and communities, syndics are they who are chosen to conduct the affairs and attend to the concerns of the body corporate or community, and in that sense, the word corresponds with director or manager.
(52) Page 271. From a principle whicb seems generally to pervade the French law, that the property of the debtor rather than his person affords the best security for the payment of the debt, the system of hypothecation, or mortgage, is carried to a much greater extent in France than in England or this country. Hypothecation in France is either legal, judicial, or conventional. Legal hypothecation results necessarily from the operation of law, as, 1. The lien which married women have on the real estates of their husbands for their dowry, or the stipulations in their favour in the marriage contract; 2. That of minors, or persons non compos, or iuterdicted, on the estate of their curators or guardians ; 3. That of the state, of corporations, and of public establishments, on the property of the collectors, receivers, and other accountable agents. Judicial hypothecation is the effect of the judgments of courts of justice rendered or acknowledged of record. These two species of hypothecation extend to all the real estate of the debtor in præsenti or in futuro, saving certain modifications expressed in the provisions of the law. Conventional hypothecation proceeds from the agreement between the parties authentically contracted and acknowledged. It is a lien only on the real property specifically named in the contract. All these various privileges, liens, and mortgages, are required to be registered in the office of hypothecation, and take effect only in the order in which they are recorded, with exception, however, in favour of minors, persons under interdiction, and married women.
The whole of this admirable system of security to creditors is exhibited with perfect method, precision, and clearness, in the Code Napoleon, Book III. Title XVIII.
(53) Page 275. Article 73. of the code of civil procedure, referred to in the text, relates to judicial citations, and declares, that if the person who is cited reside out of continental France, the periods of delay allowed for his appearance shall be,
1. For those who reside in Corsica, in the island of Elba, or Capraja, in England, or the neighbouring states of France, two months;
2. For those who reside in the other states of Europe, four months;
3. For those who reside out of Europe, on this side of the Cape of Good Hope, six months;
And for those living at a greater distance, a year.
Art. 74. of the same code ordains that, when a citation to a party domiciled out of France shall be personally served in France, it shall admit only of the ordinary delays; saving to the tribunal the right to enlarge the time, if occasion require it.
(54) Page 275. Article 683. of the code of civil procedure, relates to the levying of executions on real estates, and requires an abstract of the execution to be inserted, by the plaintiff, in one of the newspapers printed in the place where the court awarding the execution is held, and if there be nove priated there, in one of those printed in the department, if there be any; proof of this publication shall be made by the production of the paper containing the said abstract, with the signature of the printer, legalized by the mayor.
(55) Page 289. See note (15) for what concerns the property of married women, under the different regulations, in regard to marriage, established by the Code Napoleon.
(56) Page 289. Inventories and other written evidence of contracts, titles, and facts, are rendered peculiarly necessary in France, where property is so often subject to liens and privileged claims; and where parol testimony is regarded with a much less favourable eye than under the English system of jurisprudence.
(57) (58) (59) Page 291. These three references in the text relate to the rights of wives, in case of the insolvency of their