Administrator of Straffin v. Newell

A rule has been granted to show cause, why a new trial should not be granted, and Davis and Berrien, in support of their motion, show the following causes :

1. Because the verdict is contrary to law, equity, justice, and to the evidence adduced.

2. Because illegal evidence was permitted to go before the judge.

3. Because the verdict was contrary to the direction of the court, in matter of law.

I shall decide upon the second ground only. At the trial, the protest of the master of the vessel was admitted as evidence in chief. Now the protest of the master is not evidence per se ; it can only be used in a court governed by the rules of the common law, to impeach the testimony of the master himself, or as incidentally corroborative of the log-book. There was therefore a misdirection of the judge, on this point of the evidence.

In this case the plaintiff is the administrator of the master, which ought to have suggested an invincible objection to the admissibility of the protest. 2 Esp. Rep. 489. 7 D. and E. were cited by Davis and Berrien.

This court is governed by the rules and principles of the Common law, so far as they are permitted to operate by our constitution and laws. The case therefore cited from 1 Dallas, p. 6, militating with those rules and principles, cannot be received as authority.

Rule made absolute.