FOR TORTS.
By Husband or Wife. The act of a hus band or wife who leaves his or her consort wilfully and with an intention of causing perpetual separation. See DESERTION.
Insurance. The transfer by an assured to his underwriters of his interest in the in sured subject, or the proceeds of it, or claims arising from it, so far as the subject is insured by the policy.
2. The term is used only in reference to risks in navigation ; but the principle is appli cable in fire insurance, where there are rem mints, and sometimes also under stipulations in life policies in favor of creditors. 2 Phillips Ins. 44 1490, 1514, 1515 ; 3 Kent, Comm. 265; 16 Ohio St. 200.
The object of abandonment being to re cover the whole value of the subject of the insurance, it is requisite only where the subject itself, or remains of it, or claims on account of it, survive the peril which is the occasion of the loss. 2 Phillips, Ins. 1507, 15, 44 1507, 1516 ; 36 Eng. L. & Eq. 198. In such case the assured must elect, immediately on receiving intelligence of a loss, whether to abandon, and not delay for the purpose of speculating on the state of the markets. 2 Phillips, Ins. 1667. The English law and practice are more restricted than the Ameri can, by not making a loss over half the value conclusive of the right to abandon, and by testing the right to abandon by the circum stances at the time of action brought, and not by the circumstances existing at the date when the abandonment is made. 2 Phillips, Ins. 1536 ; 1 Gray, Mass. 371.
3. The right is waived by commencing full repairs, but not by temporary repairs, 2 Phil lips, Ins. 44 1540, 1541, but is not lost by rea son of the enhancement of the loss through the mere negligence or mistakes of the master or crew ; but it is too late to abandon after the arrival in specie at the port of destination. An inexpedient or unnecessary sale of the sub ject by the master does not strengthen the right. 2 Phillips, Ins. 44 1547, 1555, 1570, 1571. See SALVAGE; TOTAL Loss.
Abandonment may be made upon infcrma tion entitled to credit, but if made specula tively upon conjecture it is null. And it must be made without delay, after reasonably reliable information of loss is received ; other wise the right will be waived, the assured not being permitted to wait in order to speculate upon the state of the markets. 2 Phillips, Ins. 1666 et seq.
In the absence of any stipulation on the subject, no particular form of abandonment is required ; it may be in writing or oral, in express terms or by obvious implication ; but it must be absolute and unconditional, and the ground for it must be stated. 2 Phillips,
Ins. 1678, 1679 et seq.; 1 Curt. C. C. 148. Acceptance may cure a defect in abandon ment, but is not necessary to its validity. 2 Phillips, Ins. Q 1689. Nor is the underwriter obliged to accept or decline. He may, how ever, waive it. 2 Phillips, Ins. 1698. But it is not subject to be defeated by subsequent events. 2 Phillips, Ins. 1704 ; 6 Rich. Eq. So. C. 146. And the subject must be trans ferred free of incumbranee except expense for salvage. 1 Gray, Mass. 154. See TOTAL Loss.
Of Rights. The relinquishment of a right. It implies some act of relinquishment done by the owner without regard to any future pos session by himself, or by any other person, but with an intention to abandon. 14 Mees. &. W. Exch. 789 ; 9 Mete. Mass. 395. Mere non-user does not necessarily or usually con stitute an abandonment. 10 Pick. Mass. 310 ; 23 id. 141 ; 3 Strobh. So. C. 224 ; 5 Rich. So. C. 405 ; 16 Barb. N. Y. 150 ; 24 id. 44 ; see Tudor, Lead. Cas. 129, 130 ; 2 Washburn, Real Prop. 83-85.
4. Abandonment is properly confined to incorporeal hereditaments, as legal rights once vested must be devested according to law, though equitable rights may be aban doned, 2 Wash. C. C. 106 ; 25 Penn. St. 259 ; 32 id. 401 ; 15 N. H. 412 ; see 1 Hen. & M. Va. 429 ; and an abandonment combined with sufficiently long possession by another party destroys the right of the original owner. 10 Watts, Penn. 192 ; 2 Mete. Mass. 32 ; 6 id. 337 ; 31 Me. 381 ; see also 8 Wend. N.Y. 480 ; 16 id. 545 ; 3 Ohio, 107 ; 3 Penn. St. 141 ; 2 Washburn, Real Prop. 453-458.
There may be an abandonment of an ease ment, 5 Gray, Mass. 409 ; 9 Mete. Mass. 395 ; 6 Conn. 289 ; 10 Humphr. Tenn. 165 ; 16 Wend. N. Y. 531 ; 16 Barb. N. Y. 184 ; 3 Barnew. & C. 332 ; of a mill site, 17 Mass. 297 ; 23 Pick. Mass. 216 ; 34 Me. 394 ; 4 M'Cord, So. C. 96 ; 7 Bingh. 682 ; an appli cation for land, 2 Serg. & R. Penn. 378 ; 5 id. 215 ; of an improvement, 1 Yeates, Penn. 515 ; 2 id. 476 ; 3 Serg. & R. Penn. 319 ; of a trust fund, 3 Yerg. Tenn. 258 ; of an invention or discovery, 1 Stor. C. C. 280 ; 4 Mas. C. C. 111 ; property sunk in a steamboat and unclaimed, 12 La. Anni 745 ; a mining claim, 6 Cal. 510 ; a right under a land 23 Penn. St. 271.
The question of abandonment is one of fact for the jury. 2 Washburn, Real Prop. 82.
The effect of abandonment when acted upon by another party is to devest all the owner's rights. 6 Cal. 510 ; 11 Ill. 588. Consult 2 Washburn, Real Prop. 56, 82-85 ; 253-258.