1788.
rendered it neceffary that the whole record fhould be tranfmitted and certified ; and, whatever may be its weight and effect, the whole ought alfo be fubmitted to the Jury. See Valinds Ord. de Fr. 190 Dough. 554. Parke's Inʃurance 404. Bull N.P. 227.
by the court :–Though we had fome doubt, at firft, whether, connected with the fubfequent proteft, the preces verbal might not be given in evidence, yet we are now convinced that its admiffion would be highly improper. The declaration of any man, delivered either in a Pagan, or Chriʃtan, Court, without the folenmity of an oath, is not evidence of the fact afferted, even where the witnefs is fubject to no biafs; much lefs, where he is immediately interefted ; as the Captain was in the prefent inftance, being a part owner of the veffel.
The cafe in Doug. 554. does not apply to that before us; nor can the proces verbal be confidered as a judicial proceeding proceeding. With refpect to the argument, that is a part of the exemplification, it is fufficient to obferve, that if a Deed of any kind had been left with the Judge of the Admiralty, he would, probably, have certified it in the fame manner, without meaning, in any degree, to eftablifh the validity, or to affect the legal operation of the inftrument.
The reading of the proces verbal was according over-ruled.
After ftating fome other points in the caufe, the Plaintiff's counfel offered to read the proteft made in Philadelphia, on the 4thday of December 1784 ; to which their opponents likewife objected for the reafon already mentioned, that it was not made at the firft Port, and alfo on account of the length of time which had intervened.
by the court :–The queftion now before us, is, in fact, whether a proteft muft be made in the firft Port at which the Captain arrives after his veffel has been damaged? This is a matter of great importance, upon which little information can be derived from the books ; and, therefore, we were in hopes to have heard it more fully difcuffed on general principles.
We think, however, that to admit the evidence of a Captain of a veffel in excufe of his own conduct, the greateft precaution fhould be ufed, and ever poffible reftriction impofed. Hence, it is the rule in France, that the proteft fhall be made within 24 hours after the arrival at the next Port ; and here, as well as in England, it ought to be accompanied by the atteftation of a majority of the crew, See Valiens Ord. de. Fr. 190. 1 Mogenus 160. The reafon is evidently to prevent any fubfequent collufion ; and we cannot but think that it is the fafeft as well as the moft certain mode of proceeding. If, indeed, any particular circumftances fhould render it impoffible to comply, they will always form an exception to the rule ; but as that is not pretended on the prefent occafion, we are unanimous in rejecting the evidence.
As foon as the decifion was pronounced, the Plaintiff voluntarily fuffered a Nonʃuit.
Levy, Ingerʃolt and Sergeant for the Plaintiff–Lewis and Wilcocks for the Defendants.
