Steinbach v. Columbian Insurance

of recovering. 1st. It is alleged, that the voyage contemplated while the Catharine was at Barcelonas was different from the one insured, and that, therefore, the risk never commenced. The insurance being at and from Barcelona, it may admit of doubt, whether, as the loss happened there, the defendants would not be liable, although a voyage to the Havanna were in contemplation. But on this point of law, we give no opinion, because it is sufficiently proved that the vessel was destined for Baltimore. Thus have the jury found, nor could their verdict have been different, without disregarding all the testimony in the cause. The defendants themselves are aware that this finding comported with the evidence, and have accordingly directed their principal attack against the testimony itselffor they say, 2d. That Mumford was the plaintiff’s witness, and, therefore, could not be discredited by him. Whether this gentleman be regarded as the witness of the one or of the other party, is not very material in deciding this Cause; he had been examined out of court, at the instance of the defendants, and cross-examined by the plaintiff, who produced his deposition on the trial. Perhaps the best general rule in such cases, would be to consider the witness, if his deposition be read, as belonging to the party on whose application he was examined, without any regard to the person who may finally make use of it. But without deciding this point, we think nothing was done by the plaintiff to discredit Mumford, even if he had been his witness. It is not every mistake which a witness may make, when speaking from memory, that will discredit him, and it would be a strange rule indeed,

that a party producing a witness, should not be permitted, even by the witness himself, to correct a mistake which he may have committed. Nothing more was done here ; Mumford. had sworn, that from certain papers, the destination of the cargo, according to his recollection, appeared to be for the Havanna ; after this, there could be no impropriety in showing him the papers to which he alluded, or any other to refresh his memory, and to enable him to correct his error, if he had made one. This was no imputation on his character ; it neither rendered him infamous nor unworthy of credit, as to the other point to which he had deposed : It discovered in the witness a laudable promptitude to rectify a mistake, into which an imperfect recollection had betrayed him, and thus added to, rather than detracted from, the weight of his testimony. 3d. The exhibits B. and C. being only copies, should not, it is said, have been produced. If no allusion had been made to these papers, by Mumford, they could not have been produced, to show the real object of this voyage, but he had already testified that he had made out certain claims against the Spanish government, for the Catharine and her cargo, which stated the vessel to be bound directly for the West-Indies: these papers, he added, were lodged in the consulate office, at Barcelona. Having sworn thus far from memory, the plaintiff had a right to refresh his recollection, by the showing him copies of the claims referred to : on inspection, he might probably be able to determine whether they were-true copies or not, and certainly if he believed them true, they would furnish better evidence of what the

orierinals contained, than any paroi account of their B contents, which was the only way in which the defendants had attempted to prove them. There is no reason to say, the originals were in the plaintiff’s possession. They remained in a public office in Spain:' and this kind of inferior proof, was rendered proper by the defendants’ own conduct. They had not only-examined the witness, as to the contents of these papers, but gave the plaintiff every reason to believe,» that nothing would be required of him, but proof that the property was American. 4th. The abandonment it is said, was too late. The Catharine was seized in September, 1800, and not abandoned until ■fifteen months thereafter. It has already been decided by this court, in Earl v. Shaw, that an abandonment may be made, at any time after the accident, provided, at the date of the abandonment, the loss still continues total. This being the case here, the abandonment was in season. 5th. It is contended that Mr. Mumfordw&s mistaken or surprised on his cross-examination, and that, therefore, a new trial should be had. For this purpose, his affidavit is produced, taken nine months after the trial, in which he states, that the captions of the exhibits B. and C. were not shown to him, to the best of his knowledge and belief, and endeavours to explain why they were made as-they appear, to wit, to prevent endangering the insurance. This explanation comes too late; a witness under examination may explain and correct himself, but it will be dangerous and improper to receive any elucidation from him, after the trial, and especially after the lapse of so many months; besides, the defendants were apprised of his deposition, long before the trial, and are without excuse, for not calling on

for a’second discussion : but this is not one of them; the principal fact here was clearly proved, and if Lewis and Byrnes had both been examined, it is very uncertain whether the result would not have, been the same. 7th. The last reason assigned for a new trial is, that a juror was challenged, in the absence from court; of the defendants’ counsel, and in consequence of such challenge did not serve. It appears that the defendants’ counsel was in court, when the trial of the cause was moved for and brought on: if he after-wards left it, it was his own fault. In contemplation of law, he was so far present, during the whole trial, that no motion, by the adverse counsel, after he had once appeared, could be regarded as ex parte. He had a right to make his challenges to the jurors, without inquiring whether the other counsel was in court or in the hall. On the challenge itself it is unnecessary to decide ; it may well be doubted, however, if it were not a good one to the favour: underwriters can hardly be properjurors, in cases in which persons pursuing the same business are parties. Jurors should be “ omni exceptione mayores.”

The judgment of the court is, that the defendants take nothing by their motion, and that the rule to show cause why there should not be a new trial, be discharged with costs.

N. B. In another action on the freight of the same vessel, under the same facts, there was a demurrer to the evidence, on which the question was raised, whether a demurrer to evidence confesses all the facts which a jury might infer? But the court avoided a decision on this point, saying there was enough to

warrant the verdict of the jury. Spencer, J. hoxvever, declared he considered the demurrer confessed every thing a jury might infer. That he founded his opinion on the case of Coksedge and Fanshaw, in Doug. 119. and a similar decision in the Livingston causes, in our own court of errors.