furniture, be ordered to be sold by the marshal of this court, and the proceeds thereof might be paid to the said John S. Thompson, or his agent, for the use of the owners and proprietors and insurers thereof, and that such other proceedings might be had and done in the premises as should be agreeable to law, and the style and practice of the admiralty. And whereas, the usual and proper monition hath been issued and returned in this cause, and no 586*] person having appeared to show cause why the said ship should not be condemned agreeable to the prayer of the said master, therefore, I, the said Theodore George Alexander, Esquire, judge and commissary as aforesaid, having considered the whole proceedings had and done before me in this cause, do hereby adjudge, pronounce, and declare the said ship unfit for the further service, and as such do condemn the said ship, and direct that the same, together with her boats, tackle, apparel, and furniture, be forthwith sold by the marshal of the said court, and the proceeds paid to the said John S. Thompson, or his agents, for and upon account and use of the owner, proprietors, and insurers thereof.

In testimony whercof, I, the said Theodore George Alexander, Esquire, judge and commissary as aforesaid, have hereunto set my hand and caused the seal of the said court to be affixed, at Nassau, the twenty-sixth day of October, in the year of our Lord one thousand eight hundred and nineteen. (Signed) THEO. G. ALEXANDER, J. C. V. A.

Bahama Islands, New Providence. IN THE VICE-ADMIRALTY INSTANCE COURT.

In the case of the American ship Holofern, John S. Thompson, master, I certify the foregoing paper writing to be a true copy of the decree made and given in the above cause. In testimony whereof, I have hereunto set my hand, and caused the seal of the said court to be affixed, this seventeenth day of July. in 587*] the year of *our Lord one thousand eight hundred and twenty.

ALEXANDER M. EDWARDS,
Dep. Reg. C. V. A.

The special verdict also found, that the said condemnation was obtained through the agency of John and George K. Storr, a mercantile house at New Providence, to whom the Holofern was consigned by her captain, and that the said John and George K. Storr (though ignorant of the insurance in this case), were the general agents of the defendants to manage their concerns at New Providence.

The record also contained a bill of exceptions, by which it appeared that the plaintiff produced a copy of the record of the said ViceAdmiralty Court, as preliminary proof of loss. and the judge charged the jury that the said copy of the said sentence of condemnation having been produced in evidence by the counsel for the plaintiff, as preliminary proof of loss, *was, as against the plaintiff, suffi- [*588 cient evidence of a regular survey, in the ab sence of any proof to the contrary; to which opinion the plaintiff's counsel excepted.

It further appeared, that the said admiralty proceedings at New Providence were conduct ed under the directions of Messrs. John and George K. Storrs, a mercantile firm of that place, under whose charge the captain had placed the Holofern. The Messrs. Storrs were authorized by a general power of attorney, set out in the bill of exceptions, to attend to the interests of the defendants at New Providence, but there was no evidence that they were ap prised that the defendants had insured the Holofern.

The counsel for the plaintiff, for the purpose of proving that the said condemnation had been fraudulently obtained, inquired of the captain of the Holofern, who was a witness in the cause, whether he ever made the statement represented by the said sentence of condemnation, to have been made in his petition to the said court, to wit, that he conceived that the Holofern was not only incapable to proceed to sea in her then state, but altogether unworthy of being repaired? This question was overruled by the judge.

The same witness was then asked, by the plaintiff's counsel, whether the inside ceiling of the said ship was ever stripped off, as stated in the said sentence of condemnation, and whether she was not in such a situation, by reason of the position of such parts of her cargo and ballast as remained on board, and of the water in the hold, that it could not have been [*589 stripped off as there stated? This question was in like manner overruled.

The witness was then asked, whether he had not been informed by Gibson, one of the surveyors, that the Holofern was not condemned on account of her being rotten, but because she could not be hove down to be repaired, for want of conveniences for that purpose at New Providence. This question was also overruled.

That the said ship was seaworthy at the time of the commencement of the said risk, and when she sailed upon the voyage insured; and assessed the plaintiff's damages, in case he was entitled to recover, at $6.625.20.

The plaintiff's counsel excepted to the several decisions overruling the said questions.

Mr. H. D. Sedgrick, for the plaintiff in error, argued, (1) That the sentence of condemnation, of the Court of Vice-Admiralty at New Providence, and the survey stated therein, be

ing subsequent to the commencement of the risk, could only prove the unseaworthiness of the ship, at the time of the survey.' 590*] *The clause in question has always been considered, both in arguments at the bar, and in the decision of the courts, not as vary. ing the reciprocal rights and duties of the parties, but simply as a stipulation in relation to evidence; nothing farther is required of the insured than to furnish a competent vessel at the inception of the voyage, and all subsequent accidents and losses are at the risk of the insurer, and of consequence, it was held in the case cited, that a report of surveyors in regard to the state of the ship on the 16th of October, was not competent, or if competent, not conclusive evidence of her condition, on the 9th September preceding. It had been suggested, that the decision in the Marine Insurance Company v. Wilson was founded on the particular state of the pleadings; but there was no intimation in that case, that the defense would have been available in any other form, and the case was decided for the plaintiff on the ground that it did not appear by the record that any evidence was offered to prove the vessel unsound on the 24th October, except the report of the surveyors, which was made on the 26th November, and that there was no parol testimony to explain the report, or apply it to the time of the commencement of the risk.

2. It is necessary for the protection of the insurers, that it should appear by the survey, that the rottenness of the ship was the exclusive cause of her condemnation. Such is the clear result of all the cases.?

591*] *Now, here it does not appear that the ship was irreparable from unsoundness solely. On the contrary, it appears by the special verdict, that she met with violent gales, in consequence of which she sprang a leak.' The Holofern is stated by the survey to have been in a leaky state; the cause of that leaki

ness is not stated, but it is to be referred to the leak sprung in consequence of the perils insured against. The rule has been laid down more strongly than we contend for. Springing a leak is a peril insured against, and any accident which can be traced to the springing of a leak, in a calm or in a storm, and after a long or short absence from port."

The condemnation proceeded as well on the ground of the leakiness of the vessel, as of her decayed condition; and it is sufficient for the plaintiff, if it appear that the leakiness was not, of necessity, to be solely ascribed to the decay. In this case, the language of the record may fairly be considered as amounting to no more than this: By the extraordinary violence of the gale, the ship was so sprung, and started in her timbers and planks, as to be in a very leaky state, and to require a thorough repair to be made tight. She was decayed, as all ships are, and not so sound a vessel as to render extensive repairs expedient."

It appears, from the whole record, that there 592*] was *no proof that a regular survey had been had on the sap.

1. Marine Ins. Co. v. Wilson, 3 Cranch, 187. 2-Guamiguez v. Coxe, 1 Bin. 592; Watson et al. v. Ins. Co. of N. A. Condy's Marsh. 169, note b; Am

The bill of exceptions is part of the record; and if necessary, the special verdict may be amended by it. As a general rule, all errors and defects may be amended when there is anything by which the amendment can be made. The provision for amendments made by the law of the United States, is much more liberal than any of the English statutes of Jeofails.4 The practice of amending verdicts is familiar. It is often done from the notes of the judge, at the term subsequent to the trial, and such notes are certainly much less authentic than a bill of exceptions, settled at the time, and sealed by the judge as making part of the record.

Although the fact of a survey having been' had on the Holofern, is directly stated in the special verdict, we have a right, therefore, to resort to the bill of exceptions, to see upon what evidence the fact is so stated.

ence between this case and every other to be It is obvious to remark a very striking differfound in the books, in which the application of this clause in a policy of insurance was brought in question. In every other case the survey itself, or an authenticated copy, was produced in evidence, and is set out in the case. no survey was produced; no copy proved, nor even an extract given from the survey. What the survey was, or whether it ever had any existence as a written document, does not appear. All the evidence we have of it, is an account or

Here

summary *(and probably an imperfect [*593 one), which is contained in the record of the Vice-Admiralty Court, and it is apparent from this record, that the words of the surveyors are writing signed by the surveyors, it has been not given. If there ever was any paper in wholly remodeled. All the tenses of the verbs are changed.

The defendant should have produced the survey itself, or at least have distinctly and unequivocally required the plaintiff to produce it. They did neither.

Upon what evidence, then, do the defendants rely to substantiate the fact in question? Solely on the record of the Court of Vice-Admiralty at New Providence.

It is first to be observed that the clause in

question in the New York policies (of which this is one) differs in one respect from the correspondent clause in the policies of the cities south of New York, upon which adjudications have been had. In the southern policies, the phraseology is such as might seem to point to judicial proceedings; here the words are, should be thereby declared, &c.;" distinctly if the above vessel, upon a regular survey, placing the bar on the survey alone.

The great question between the parties is, whether the decree in the Vice-Admiralty Court is conclusive evidence of a regular survey; for if not conclusive, the verdict in our favor will entitle us to judgment.

It will scarcely be pretended, that independently of the stipulation in the policy, the record of the Vice-Admiralty Court, or even the survey itself, however authenticated, *would [*594

royd v. Union Ins. Co., 2 Bin. 394; Stienmitz v. United Ins. Co., 2 Ser. & Rawle, 293.

3.-Patrick v. Hallett, 3 Johns. Cas. 76. 4.-Judiciary Act, 1789, c. 20, s. 82.

It has been settled too often, and upon too solid grounds, that admiralty surveys, and the decrees of courts thereon, are ex-parte proceedings, and wholly inadmissible as evidence between the insurer and insured, to make it necessary to do anything more than refer to the authorities.'

The precise reason for introducing the clause in question into the policy, was because these surveys were not evidence antecedently. It is evident, therefore, that if the record in ques tion have any validity, either as evidence of a survey or otherwise, such validity must be acquired wholly from the stipulation in the policy without which the survey itself, and the adjudication of the court thereon (however efficacious as a foundation of the title in a bona fide purchaser) would, as between the parties to this suit, be mere nullities.

What, then, is the stipulation which is now pressed against us? If we allow it all the effect contended for on the other side, it is no more than this a regular survey shall be taken as conclusive proof of unseaworthiness. The stipulation regards the fact, not the manner in which it is to be proved; there is no stipulation as to evidence.

The just construction of the contract requires that there should be a written survey, under the hands of the surveyor. As has been observed, 595*] such a survey *did exist, and was proved in every case reported in the books. Now, we insist that our stipulation, which merely makes this document evidence, does not in any degree dispense with the ordinary and regular proof of the existence and contents of the document itself. The record of the Vice-Admiralty Court was not competent to establish this document, and, as before observed, it does not even attempt to do it.

If the record be conclusive evidence of the fact and contents of the survey, it must be for

one of two reasons.

1. Because it was produced by the plaintiff; or, 2. By its own efficacy.

1st. The plaintiff was bound, by a provision in the policy, to produce to the defendant preliminary proof of loss, thirty days before the commencement of the suit, and it was necessary to show on the trial that he had exhibited this evidence of the defendant.

In point of fact, the decree of condemnation in the Vice-Admiralty Court of New Providence occasioned, or rather consummated that loss, and, therefore, the plaintiff produced a copy of that decree. His having done so furnishes no reason why the recitals in that decree should be evidence against him, much less why they should be received as incontrovertible; and the hardship of such a rule is the greater in a case like the present, where the plaintiff was required to produce the evidence. A protest of the master is usually produced among the preliminary proof, but it was never supposed that the insured was conclusively bound by all the alle596*] gations the captain might choose to

The general rule is, that a document coming from the possession of a party is evidence against him, only where he claims under it,and then it is subject to explanation. Here we claim in opposition to it.

It may still be urged that the plaintiff was bound to produce the survey. If it were necessary, we should wholly deny this position The policy imposes no such obligation on the insured but simply to produce to the underwriters "proof of interest and loss." In every other respect the parties contest upon the usual principle, viz., that each produces the evidence in his own favor. Both parties so understood their reciprocal rights and duties. The defendants required the production, not of the the survey, but of the decree of condemnation. The plaintiff furnished the document as the decree of condemnation, and nothing else. We say, then, as Lord Kenyon justly observed in a similar case, the record of the Court of ViceAdmiralty proves the fact of the condemnation, and proves nothing else.

4

It is a rule properly and fully settled that the underwriters can make no objection to the preliminary proofs at the trial, except such as they may at the time they were exhibited. The insured is only bound to produce what is specially required. The special verdict in this case finds that the plaintiff, on the defendants' requisition, produced the copy of the *de-[*597 cree of the Vice-Admiralty Court, "whereupon the defendants required no further preliminary proof, but refused to pay on the ground of unseaworthiness." Agreeably to the spirit of the rule, they ought now to be held to the ground then taken.

Again, this objection, viz., that we were bound to produce the survey, assumes a very important fact, which we by no means admit, viz., that there is or ever was a written document signed by the surveyors, which could be produced. This throws us back to the great and only question in this part of the cause, viz., whether the record of the Vice-Admiralty Court is conclusive evidence.

But we contend, that independently of its production by the plaintiff, the sentence of the Vice-Admiralty Court has not, by virtue of the stipulation of the parties, or its own efficacy, any such conclusive effect as is contended for by the defendants.

It may be said that the necessary effect of the clause is to refer the parties to the municipal regulations of any port where the vessel may happen to be in distress, for there the survey must be had. We admit this in its fullest extent. The foreign court is to order the survey, appoint the surveyors, and the proceedings are all to be conducted according to the local reg ulations. But this is all. The parties here made no stipulation as to the rules of evidence, upon which the cause is to be tried here. It is universally true that the evidence is to be given according to the lex fori. We consented that the Vice Admiralty Court of New Providence

1.-Abbott v. Seabor, 3 Johns. Cas. 39; Wright v. Barnard. 2 Esp. N. P. Cas. 701; 8. C. Park. on Ins. 548, 6th Lon. Ed; Saltus v. Commercial Ins. Co., 16 Johns. Rep. 487.

2-Senat v. Parker, 7 T. R. 158. 3.-Wright v. Barnard, ubi sup. 4.-Vose v. Robinson, 9 Johns. Rep. 12.