Sharp v. United Insurance

14 Johns. 201

Opinion

Spencer, J.,

delivered the opinion of the court. The plaintiff seeks to recover back the premium of insurance on the ship Hercules, on a voyage from New-York to Liverpool, on the allegation, that he and his brother Robert Sharp were not owners when tile policy was effected. To prove this, the plaintiff offered in evidence the register of the ship, dated the 2d of June, 1809, by which it appears, on the oath of David Dunham, that he, together with Robert Sharp, were the owners ; the policy bears date the 24th of October, 1810.

The only question in the case is, whether the register is evidence, prima facie, that Robert and John Sharp were not the owners. The object of the register is, to show the character of a vessel, and to entitle her to the advantages secured by law to vessels of our own country. It was granted, on the oath of one of the owners, and there can be no reason for admitting this as proof of ownership, to contradict the fact set up by the act of procuring an insurance on the same ship, as owned by different persons. It would be incongruous to allow a person who applies for an insurance on a ship, representing himself to be the owner, to set up the act of obtaining a register, as evidence ¡to the contrary ; especially, after the lapse of several months after it hears date. Dunham was a competent witness, and he ought to have been examined, or some proof should have been offered, to show how the ownership stood, when the insurance was effected. The oath of the owner, in obtaining a register, is proof for no other purpose. The register would not be evidence against Sharp, unless it were shown that he sanctioned, or adopted it. The principles adopted by the court in this case," are fully supported by authorities. (4 Taunton Rep. 651. 2. Taunt. Rep. 5. 2 Campbell, 107. 3 Cowp. 240. 3 Taunt. Rep. 176. 6 East, 10. 4 East, 130. 14 East, 226. 16 East, 169.) There must be a new trial, with costs, to abide the event of the suit.

New trial granted.,