Patterson v. Maryland Insurance

At the present term the opinion of the court was delivered by

A voluntary affidavit ranks in equal grade with hearsay testimony in the scale of evidence* arid in no case is received where better testimony can, from the nature of the case, be had.

The protest of the captain was merely a voluntary affidavit, and a notary public, except in those cases where a protest by the lex tiiercatoria, as in cases of foreign bills, or by statute, as the act of 1785, ch. 38, statute 9 & 10 William III, ch. 17, 3 & 4 Ann. ch. 9, in case of damages on inland bills and notes, has no authority to take a protest. The point of view in which the authority of this officer is to be considered generally, relates to those commercial transactions occurring in one country which are to be proved in another, or in which foreigners are interested; and the office derives its existence from the courtesy of one nation to another; and where he is to do certain acts by statute, the authority is limited to its designated object.

At common law, the best evidence must be had the nature of the transaction admits of. This claim is founded on a loss at sea, in a trading voyage. The captain’s protest, before a notary, is produced as evidence of the loss, and the transaction is of late occurrence. Part of the crew are stated to have been residents of the eastern shore, to have returned in the vessel, and to have remained for sometime after in Baltimore, Those persons were not searched for, and it does not appear that they had left the state, and could not be found. Therefore, as those persons cannot be presumed to be out of the reach of the process of the court, the plaintiff should have produced them, for they must be supposed to be equally cognizant of facts happening on board the vessel on her voyage,

Besides, a party is entitled to cross examine a witness,' and it is a general rule, that without giving him'an opportunity to do so, his deposition shall not be evidence. In this *75case there was no opportunity, and on that ground the protest was incompetent. It is true that in some few cases i . . similar protests liavo been read in evidence, but it has been 1 , _ to impeach the testimony of the protesters, and not to dispense with their parol testimony, or that of others, or of other proof.

This protest is not to be considered as a deposition de bene esse. It differs in two essential particulars; for first, depositions de bene c-sse are taken by some court, or by an express authority derived therefrom, or under our- acts of assembly to perpetuate evidence; and secondly, they are always taken upon notice given to the adverse party, if practicable.

' By tiie law of merchants, the captain must protest, on arriving at a port, against damages happening in a voyage thereto, but such protest is not evidence to charge the underwriters upon their policy. It is to protect the captain from his liability, and in such cases some others of the crew must join in the protest; and the reason is, that the captain may thus perpetuate that evidence which may be necessary to exonerate him from personal responsibility, as the crew, being persons of no fixed residence, and liable to more than ordinary casualties, their testimony is therefore more necessary to be taken, and is more liable lo be lost.

As to using this protest as prima fade evidence only, it Js equally as objectionable as if used as positive proof, For the purpose for which it was produced in this case, as in all others, throws the onus probandi upon the adverse person, and therefore, if allowed as evidence on that score, it established the cause of action unless contradicted. For prima fade evidence is sufficient, if not destroyed by other proof, as a note is prima fade evidence of a consideration, and throws the onus probandi on the opposite party.

The court affirm the judgment of the court below, with» costs to the appellees.

dissenting from the opinion of the court delivered the following opinion: The copy of a protest is not evidence per se; but under certain limitations and restrictions is admissible. It is evidence, if the captain, and those who signed it, and whose depositions are, offered to fee read, are dead, or out of the reach of the process of the *76court It is evidence to impeach the credit of the captain, and those who have signed it, when examined in relation to the facts and circumstances detailed in it, without laying any foundation for introducing it, in the same manner that a deposition is evidence to impeach the credit of a witness when examined in court, by showing he is inconsistent, or has contradicted himself. ■ The credit, the protest is entitled to, must be determined by the jury under all .circumstances and the evidence in the case.

A deposition legally taken is not evidence per se, and cannot be admitted without showing, the death of the deponent, or his not being amenable to the process of the court. This case is not distinguishable on principle from the ordinary case of receiving depositions in evidence; for the protest is taken by a public officer authorised to take it, and whose office and authority are recognized by the courtesy of nations.

The usage of trade and general utility, from necessity, require the admission of this kind of testimony, subject to the restrictions already mentioned.

II would be to little purpose to allow of protests, in commercial transactions, to be made on oath before a notary public, and to be by him recorded, if copies of such protests cannot legally be received as evidence in those bases in which the persons who made the protests are dead, or not amenable to the process of the court.

Although the evidence of seafaring persons, and others, may be perpetuated in the manner the acts of assembly have prescribed, those provisions do not exclude this kind of testimony, but must be considered as supplying additional means of proof.

The office of notary is an office of public notoriety; and. acting under the solemnity of an oath, his acts are recognized by the courtesy of nations, and considered as records, with the view of furnishing evidence in those cases to which his acts refer.

In this casé it js admitted by the counsel, that the protest was made in convenient time, and it appears to have been made at the proper place — the port of destination, and where the parties concerned in interest resided at the time.

It is proved in the case, that the captain and mate, ivhose testimony was objected to, were dead at the time.

*77This kind of proof is not conclusive, but is prima facie eviflence, aud may be counteracted and repelled by other testimony; and as the credit of it must be determined by the jury, I cannot see any incouveuiencies attending the admission of it, equal to those which will result from its rejection. I think it is the safest way to allow it to go to the jury; aud therefore am of opinion that the judgment of the con-’t below ought to be reversed.

JUDGMENT AFK/UME.B.