Blacks Law Dict. 1st ed

ACTUAL POSSESSION

ACTUS

an actual and a constructive total loss it therefor* found in this: that in the former no abandonment is necessary, while in the latter it is essential, unless the case be brought within some exception to the rule requiring it. A partial loss is when an injury results to the vessel from a peril insured against, but where the loss is neither actually nor constructively total." 25 Ohio St. 64. See, also, 96 U. S. 645; 9 Hun, 883. ACTUABIUS. In Roman law. A no tary or clerk. One who drew the acts or statutes, or who wrote in brief the public acts. ACTUARY. In English ecclesiastical law. A clerk that registers the acts and constitutions of the lower house of convoca tion; or a registrar in a court Christian. Also an officer appointed to keep savings banks accounts; the computing officer of an insurance company; a person skilled in cal culating the value of life interests, annui ties, and insurances. ACTUM. A deed; something done. ACTUS. In the civil law. A species of right of way, consisting in the right of driving cattle, or a carriage, over the land subject to the servitude. Inst. 2,3, pr. It is sometimes translated a "road," and included the kind of way termed " iter, " or path. Lord Coke, who adopts the term "actus" from Bracton, defines it a foot and horse way, vul garly called "pack and prime way;" but dis tinguishes it from a cart-way. Co. Litt. 56a. In old English law. An act of parlia ment; a statute. A distinction, however, was sometimes made between actus and stat utum. Actus parliamenti was an act made by the lords and commons; and it became statutum, when it received the king's con sent. Barring. Obs. St. 46, note b. ACTUS. In the civil law. An act or ac tion. Non tantum verbis, sed etiam actu; not only by words, but also by act. Dig. 46, 8,5. Aotus ourise neminem gravabit. An act of the court shall prejudice no man. Jenk. Cent. 118. Where a delay in an action is the act of the court, neither party shall suffer for it. Aotus Dei nemini est damnosua. The act of God is hurtful to no one. 2 Inst. 287. Actus Dei nemini facit injuriam. The act of God does injury to no one. 2 BL Comm. 122. A thing which is inevitable by the act of God, which no industry can avoid, nor policy prevent, will not be construed to the prejudice of any person in whom there was no laches. Broom, Max. 230.

p. 812, § 1, authorizing proceedings to com pel the determination of claims to real prop erty, means a possession in fact effected by actual entry upon the premises; an actual oc cupation. 59 N. Y. 134. It means an actual occupation or posses sion in fact, as contradistinguished from that constructive one which the legal title draws after it. The word "actual" is used in the statute in opposition to virtual or construct ive, and calls for an open, visible occupancy. 7 Hun, 616. ACTUAL SALE. Lands are "actually sold" at a tax sale, so as to entitle the treas urer to the statutory fees, when the sale is completed; when he has collected from the purchaser the amount of the bid. 5 Neb. 272. ACTUAL TOTAL LOSS. In marine insurance. The total loss of the vessel cov ered by a policy of insurance, by its real and substantive destruction, by injuries which leave it no longer existing in specie, by its being reduced to a wreck irretrievably be yond repair, or by its being placed beyond the control of the insured and beyond his power of recovery. Distinguished from a constructive total loss, which occurs where the vessel, though injured by the perils in sured against, remains in specie and capable of repair or recovery, but at such an ex pense, or under such other conditions, that the insured may claim the whole amount of the policy upon abandoning the vessel to the underwriters. "An actual total loss is where the vessel ceases to exist in specie, —becomes a ' mere congeries of planks,' incapable of being repaired; or where, by the peril insured against, it is placed beyond the control of the insured and beyond his power of re covery. A constructive total loss is where the vessel remains in specie, and is susceptible of re pairs or recovery, but at an expense, according to the rule of the English common law, exceeding its value when restored, or, according to the terms of this policy, where • the injury is equivalent to fifty per cent, of the agreed value in the policy,' and where the insured abandons the vessel to the un derwriter. In such cases the insured is entitled to indemnity as for a total loss. An exception to the rule requiring abandonment is found in cases where the loss occurs in foreign ports or seas, where it is impracticable to repair. In such cases the master may sell the vessel for the benefit of all concerned, and the insured may claim as for a total loss by accounting to the insurer for the amount realized on the sale. There are other ex ceptions to the rule, but it is sufficient now to say that we have found no case in which the doctrine of constructive total loss without abandonment has been admitted, where the injured vessel re mained in specie and was brought to its home port by the insured. A well marked distinction between

Archive CD Books USA