Kenny v. Clarkson & Van Horne

1 Johns. 385

Opinion

Spencer, J.

delivered the opinion of the court. If has been objected that, by the ' 25th Geo. 3. ch. CO, the certificate of registry not having been inserted, the bill of sale was utterly null and void. It has also been objected that the plaintiff having given a bottomry bond to A. & J. M'Clure, for £2000, which sum they were authorised to get insured on the vessel, there was no insurable interest but the bottomry. With respect to the effect of the British statute, it is a sufficient answer to observe, that it has been proved only by parol ; for though courts’ of law will receive evidence of the common law, from intelligent persons of the country whose laws are to be proved, I think there exist strong reasons against such proof of foreign statutes, and this distinction, undoubtedly, prevails in the English courts. All the evidence in the case shows manifestly that the plaintiff had a reasonable and almost certain expectation of procuring all the muniments necessary to give him a title even under the British statute; he had paid nearly two thirds of the amount of the purchase money, he had the full dominion of the vessel, and according to the cases of Le Cras v. Hughes, and Grant v. Parkinson,

* his interest, independent of the question arising on the bottomry, was insurable.

That a bottomry interest cannot be insured, but co nomine has been decided in this court ; the M'Clures, therefore, could not have been otherwise insured. The case of Williams v. Smith† is directly against the objection raised here. In that case a vessel was insured after being botto med, and it was holden that the bottomry did not take away the right to effect an insurance for the owner. The circumstance of ignorance in. Williams of the giving the bottomry when the insurance was effected, could have had'no influence on the question. The plaintiff then, in my judgment, had an insurable interest.

The opinion I have already expressed .on the bottomry, evidence, there appears to have been none. I must not, however, be understood as sanctioning the course adopted '^because notice had been given to produce it, and it had been tice expressing no decided opinion on the question, and the rest of the court were equally divided. It appears to me that the notice to produce a paper and calling for its inspec= tion, ought to be considered as analogous to a bill for discovery, where most certainly the answer is not evidence but for the adverse party. I think it our duty to adopt such a course, as will not needlessly drive parties into equity for discovery; I mention thus much that we may not be misunderstood on this point of practice. n» «1 renders it unnecessary to examine the second objection ; be cause I have gone on the principle that there was a bottomry, when, if the paper read by the plaintiff without proof, were at the trial, in admitting the paper to be read without proof, called for and perused. The case oí Lawrence & Whitney v. Van Horne & Clarkson, settles nothing. The then chief jus-

I can perceive no impropriety in the judge’s charge in say-, ing, “ as the'defendants, for the purpose of showing such prior “ insurances, have resorted to the plaintiff’s affidavit, the “ whole of it must be taken together.” The soundness of that position has not been controverted ; but the counsel suppose that it ought to have been also observed, that the jury were not bound to believe that part of it which stated that the ves. sel, when she sailed on the voyage insured, was worth, and had cost $7000. If verdicts were to be set aside because the judge, in delivering a charge, omitted comments which might have been proper, there are but few verdicts that would stand the test. It is difficult to believe that the jury could have understood the judge, that they were to believe every part of the affidavit; but that they might believe it, or not, in their discretion.

With respect to the last point, it appears that there was a prior insurance to the amount of $3000. The bottomry is stated by Mitchell to be $2000, and the value of the vesset $7000. What was the rate of premiums does not appear. If these sums be added to the probable premiums, there' Would remain a sufficient sum to warrant this insurance, had it been an insurance on interest. That this was a valued insurance -at $2000, cannot affect the question ; the valuation is only conclusive between the parties to this policy. The only evidence that the valuation of this vessel was §7000, is derived from the plaintiff’s affidavit", which, it must be remembered, was read by the defendant to the jury, who, it seems, believed that fact. I see no reason to differ from the conclusions drawn by the jury, and am therefore of opinion that a new trial ought not to be granted.

Judgment for the plaintiff.

Marshall, 84. 111. 219.