owners in the sum of over $64,000, which was then undischarged.

I think the first point untenable. The cause for abandonment is sufficiently stated.

Neither do we think the second objection is well taken. There is nothing in the statutes of 17 and 18 Vict. c. 104, § 55, above quoted, which indicates that an abandonment such as that under consideration would not vest in the insurers, when accepted by them, an efficient title to the property abandoned. Indeed, I do not think the statute refers to cases of transfer by abandonment. Here were three other companies besides the defendant to whom abandonment was made. What propriety is there in claiming that defendant was entitled to a bill of sale under the merchants' shipping act? See Phil. Ins. § 1722. It was held by Bramwell, L. J., and Brett, L. J., in the case of the Union Bank of London v. Lenanton, 3 C. P. Div. 243: s. c. 47 L. J. C. P. Div. 409, that a transfer of a ship which had not been registered as a British ship under section 19 of the merchants' shipping act of 1854 was good, although not made by bill of sale under section 55. No reference is made to the act in the policy, and as the contract of insurance was entered into in Buffalo, in the state of New York, I hardly see how it can be affected or controlled by the act of parliament above quoted.

Upon the third point I agree with the circuit judge, that the execution of the paper of date December 13, 1883, by Mr. Beatty, who was at the same time mortgagee, operated as a discharge of his mortgage by way of estoppel. The policy required the plaintiff's abandonment to be in writing, and that it should be efficient, if accepted, to convey to and vest in the insurance company an unincumbered and perfect title to the subject abandoned. The intention plainly appears, upon the face of the paper, to abandon, and Mr. Beatty, in executing the paper on behalf of the company, must have intended that such abandonment should be effectual, and that the insurance company would act upon it. When they did act upon it, and accept the abandonment, he was thereby precluded from ever afterwards asserting an interest in the

property antagonistic to that which was conveyed by the abandonment and acceptance: Northwestern Transp. Co. v. Continental Ins. Co. 24 Fed. Rep. 171; Hayes v. Livingston, 34 Mich. 387, and cases there cited; Pratt v. Maynard, 116 Mass. 388; Stafford v. Whitcomb, 8 Allen, 518; Roberts v. Crawford, 54 N. H. 532; Gage v. Whittier, 17 N. H. 312; Patrick v. Meserve, 18 N. H. 300. He did, however, upon the trial, make out and tender a formal discharge of the mortgage for a nominal consideration, in confirmation of the abandonment. I do not see how this could affect the merits of the question under the terms of the policy, as the abandonment must have been efficient to convey an unincumbered title before it was accepted; and while acceptance might be held to be a waiver of defects and irregularities in the abandonment, it could not be held to extend to a waiver of the right, secured by the contract, of an unincumbered title to the property, especially as the defendants were ignorant of the existence of such incumbrances until served with proofs of loss in 1884.

I think the abandonment was properly made and sufficiently proved. Was there an acceptance of the abandonment? Nothing was said by the defendants' agents or officers, either accepting or rejecting the abandonment made by the plaintiff. It is claimed, however, that under the facts and circumstances, by their acts in the premises subsequently to the abandonment, the defendants have accepted it. These acts consist in taking possession for the purpose of rescuing and retaining possession of the steamer, and neglecting to effect the rescue until about June, 1884, more than six months after the disaster, and then recovering her, and taking her to the port of Detroit, where the defendant neglected to cause repairs to be made, or to tender the amount found necessary by the survey to put her in repair. The plaintiff contends that it was the duty of the defendant, after taking possession for the purpose of recovering the vessel, to proceed with due diligence, and without unreasonable delay, to recover and repair the steamer, and that by reason of its negligence in that respect it has precluded itself

from denying that it has accepted the abandonment, and from its action and negligence acceptance will be inferred. On the contrary, the defendant's contention is that, by the terms of the contract between it and the plaintiff, "it was agreed that the acts of the insured or insurers, or their agents in recovering, saving and preserving the property insured in case of disaster, shall not be considered a waiver, or an acceptance of an abandonment, nor as affirming or denying any liability under this policy; but such acts shall be considered as done for the benefit of all concerned, without prejudice to the rights of either party;" and therefore nothing can be predicated upon the acts of the defendant in recovering and preserving the property insured, as affecting the question of acceptance of the abandonment, and that acceptance cannot be inferred, or implied from the silence of the company in reference to the abandonment.

This clause of the contract is for the benefit of all concerned. Its object doubtless is to do away with the rule of law formerly prevailing, which held that in case of abandonment, if the insurer interfered to recover or preserve the property, such act was an acceptance of the abandonment. It will be observed that this clause has reference to an abandonment previously made, and has no application to the efforts of either party before an abandonment is made. Whatever is done towards recovering a vessel lost by stranding, previous to abandonment, is done in the interest of the owner, and is governed by the same principles of salvage, whether done by the insurer or by other persons. No contract was necessary to protect the rights of parties in such case. It might happen, however, that while the insurer was engaged in an effort to rescue the vessel, the owner might give notice of abandonment, and then the insurer must, under the old rule, desist, at the peril of being held to have accepted the abandonment. Under the clause in question he runs no such risk, and may continue his exertions to rescue the property, and prosecute them to a successful termination, if possible. I do not think, however, that the privilege continues indefinitely, or to a case where the insurer,

after attempting a recovery, discontinues or suspends operations for the recovery of the vessel. It seems to me clear that the case would be different if, after notice of abandonment, and after suspension of previous efforts and considerable delay, the insurer proceeded to take possession of the property for the purpose of rescuing and recovering it. In the former case such acts are to be considered as having been done for the benefit of all concerned. In the latter case, as well as where he proceeds for the first time to recover the property after abandonment, such acts would signify an acceptance of the abandonment, and that the insurer was acting in the character of owner; and especially would this be so when the insurer had preserved silence in reference to the abandonment, and had neither denied the right to abandon or given notice of a refusal to accept. The rights of the respective parties, as well as good faith and fair dealing, requires such construction to be placed upon the contract: Kaltenbach v. Mackenzie, 3 C. P. Div. 479, 480, per Colton, L. J. The owner, from the time a legal abandonment is made, ceases to have any right or interest in the property, which then becomes vested in the insurer; and while it remains incumbent upon the insured to show the facts which gave him the right to abandon he may relieve himself from that burden by showing acceptance, either express or implied, by the insurer. Whatever was done by the defendant in November, 1883, in attempting the rescue of the steamer Manitoba has no bearing upon the question of abandonment, under this clause of the policy, because no abandonment was attempted by the owner until those efforts were suspended, and had virtually ceased. Afterwards came the notice of December 13, 1883, to which the defendant returned no reply. Nothing was done until the following May, when the defendant sent Mr. Murphy to the scene of the disaster, who recovered the steamer, and brought her to the port of Detroit about the first of June, 1884. Now, in what capacity was the defendant acting when it sent Murphy to recover the steamer, and bring her to Detroit? Was acting as owner, or merely as salvor for the benefit of all

concerned? The intent with which it acted has much to do with the question of acceptance: Reynolds v. Ocean Insurance Co. 22 Pick. 191.

If it intended to act as owner, it was an acceptance; but if it merely intended to rescue the steamer, and cause her to be repaired, and thus indemnify the owners, it would not be an acceptance, and the plaintiff would be obliged to prove facts which entitled it to abandon, before it could recover for a constructive total loss; so that the act in itself may be said to be ambiguous, and in such a case, looking to this act merely as evidence of abandonment, I think the jury would have the right to construe the act most strongly against the defendant, for the reason that its interest was a matter entirely within its own knowledge, and by speaking it had the power to solve all doubts and dispel all ambiguities, and, although no duty rested upon it to say whether it accepted the abandonment or not, so long as it was both silent and inactive, yet, when it did act, its duty was to say for what purpose, and with what intent it proposed to act. Peele v. Merchants' Ins. Co., 3 Mason, 27; Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 541; Provincial Ins. Co. v. Leduc, L. R. 6 P. C. 224: s. c. 11 Eng. Rep. 84.

Taking what has been said on the subject of acceptance in connection with the facts tending to show the negligence of the defendant in not repairing the steamer in a reasonable time, or tendering the money found necessary by the surveyors to put her in repair, less one-third new for old, the acceptance was fully made out, and justified the verdict which the jury gave. Copelin v. Insurance Co., 9 Wall. 461; Peel v. Suffolk Ins. Co., 7 Pick. 254; Reynolds v. Ocean Ins. Co., 1 Metc. 160; Reynolds v. Ocean Ins. Co., 22 Pick. 191; Norton v. Lexington, etc., Ins. Co., 16 Ill. 235; Marmaud v. Melledge, 123 Mass. 176.

The defendant, however, contends that the rule recognized by the authorities above cited is modified, and in fact annulled, by the express language of the policy, which provides as follows:

"In case of loss or misfortune it shall be lawful and neces