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purpose of obtaining a chance for justice. [We speak of law as it was applied according to the ordinary rules of evidence, and independently of the statute 25 Geo. II. c. 6, and other statutes annulling the devise or legacy given to one who is a subscribing witness to a will.]
If the release is bona fide, there is the evil of obligations being imposed on, and losses suffered by the wrong individual; if mala fide, that is, with an understanding that the parties shall act as if no release had been made, still the interest exists.
But how comes this release? The witness would not deprive himself of rights to which he had an unquestioned title, and the party would not release the witness from liabilities to which he might be exposed, without some inducement. The party must, in some way or other, have ascertained that the testimony of the witness would be useful to him. The witness must have made statements by which his testimony was seen to be desirable. And having made these extrajudicial statements, is there no motive to adhere to them? Has the witness no interest in his reputation for truth, which, in case of a deviation from these statements, must suffer? The party would never have released the witness, or paid the consideration for which the witness signed his release, without some knowledge of what the testimony of the witness would be, and an understanding express, or implied, that such testimony, when delivered in court, would coincide with the previous statements which led to this contract, and with this understanding and under these circumstances is the disqualification done away?
Without the release, or the happening of a certain event, there would be certain liabilities to be borne by the witness, from which this release exempts him. If the witness says that he intends to avail himself of this release to be thereby exempted from liabilities to which he is legally subject, and also equitably --- if law and equity are coincident - in order to throw a loss on one who should not suffer it, he is heard. But, if being a man of honor,' he intends, notwithstanding his release, to submit to his previous liabilities, and on being interrogated, so says, then he would not be suffered to endanger his integrity by
There were formerly strong objections to men of honor in courts, but latterly there have been signs of relenting. 2 Starkie, 746. Contradictory authorities.
being examined on the trial.” If, then, the witness, notwithstanding his release, is willing to act honorably, if he is a man of extraordinary integrity, he must not be heard. Liability, though legally released, will nevertheless exclude one who is disposed to act with integrity, while admission is thus given to him who may be tempted to dishonesty or perjury. It is supposed that the individual who voluntarily assumes obligations, to which by law he is not exposed, will commit perjury to escape from obligations which he cannot be compelled to bear.
If not intending so to do, but so saying, he can always deprive the party releasing him of the benefit of his testimony; or if intending so to do, that is, to comply with his legal obligations, notwithstanding the release, if he will, merely to accommodate himself to the circumstances and the rules of evidence, perjure himself, and say he does not, there is no objections to the introduction of his testimony.
If, on the other hand, the witness has released his claims to the party, still, if considering him a man of integrity, he expects to receive whatever belongs to him, and that the party will act uprightly, and take no advantage of the release, and so says, he is rejected ; if, so expecting, he denies the fact, he is admitted. To all honest men, notwithstanding the specific of the release, the doors are absolutely shut; to all dishonest, release or no release, they are thrown wide open.
What then comes of all this shuffling, of these slight-of-hand tricks? Rights are taken from those to whom they belong and given to others; and individuals are exempted from liabili
1 Per Lord Mansfield. Leach, C. C. 154. So Lord Mansfield states the law, but it has been since more generally considered as overruled. 2 Stark. 746. But the rule as stated by Lord Mansfield, is adopted in Skillinger v. Bolt, 1 Conn. Rep. 147.
2 Stạrkie, vol. 1, 87, in defending the rule by which parents and children, &c. are admitted, among other things, with a simplicity truly enchanting, remarks that 'partiality or influence, arising from natural affection, or friendship, does not admit of a releuse.'
We cite two or three decisions as specimens of the law on the subject of interest.
• The deposition of a witness, who afterwards becomes interested, and is alive at the time of trial, is not admissible.' Irwin v. Reed, 4 Yeates, 512. Quere, if dead at the time of trial ? If the deposition was taken when he was not subject to the action of the interest which is so dangerous, why is it not as good as any other deposition? The fact of subsequent interest will
ties to which they ought to be subject, that there may be even a chance for justice. And when, after all, the release is operative, the whole effect of it is to cause that to be regarded as without suspicion, which is equally untrustworthy as before, rendering it less likely to be regarded with caution, without rendering it more entitled to credit; increasing the danger and diminishing the security, by lulling watchfulness to sleep.
The rule, then, examined under every aspect, is fraught with nothing but evil, naked, uncompensated evil, without the shadow of good.
Whether the law in all cases examined, has been correctly stated, is uncertain, for the law on this subject is as inconstant and evanescent as the clouds floating above us, and as changeable and unfathomable as the ocean. To go through the detail of conflicting authorities, would be labor without the hope of reward, and tedious without conveying wisdom or instruction. Starkie devotes no less than forty pages to this subject, and makes about six hundred and twenty references, including, perhaps, some repetitions; a good proof of the certainty of this part of the law. When the decision of Bent v. Baker was made, a triumphant shout was raised at the important innovation. Since then the legislatures have gone on, at a snail-pace, removing interest, with their omnipotence, by a penny at a time; and their co-laborers, the judges, by exception after exception, have partially remedied its defects at the expense of its consistency. Centuries to come, by the cooperation of the judiciary and the legislature, may accomplish, what ought now to be done, admit all, and substitute suspicion and watchfulness for exclusion.
make no alteration, no erasures, in the deposition, nor in any way affect its truth.
· When after a witness has given his testimony, and it is discovered that he is interested, he may still release his interest and be re-examined.' City Council v. Hayward, 2 Nott & M‘Cord, 308. He may still release his interest. Strange! It seems this was doubted, and nothing but a solemn decision could remove such doubts.
Where a witness interested, has made a deposition, and being afterwards released, is again examined, his evidence is admissible, although the second deposition be the same as the first.' 2 Vern. 272. A fact well worthy of being recorded, that a witness is admissible, although he has twice told the same story. The wonder is he was not excluded; probably they would allege that fact, to the credit of the witness.
ART III.-INSURANCE-AN OPINION ON THE DEDUCTION
OF A THIRD FOR NEW IN REPAIRS.' A case is submitted involving the question, whether in adjusting a partial loss on a vessel which is repaired, the deduction of a third new for old, from the expense of repairs, should be made before or after the deduction of the proceeds of the old materials.
It is a rule in making repairs of a ship under a policy of insurance, that the owner shall pay one third of the expense, because the new part is supposed to be better than the old was before the injury. If, however, there are old materials, which are not used in the repairs, but sold, it will make some difference in the amount to be paid by the insurer, whether the proceeds are to be deducted from the expense of repairs, before, or after, the deduction of one third for new. If, for example, the repairs of copper sheathing cost $1800, and the old copper sells for $900, if the $900 is first deducted, and then the third for new from the excess, the insurer must pay $600, but if the third for new is first deducted, leaving $1200, and then the proceeds of the old materials, the insurer will be liable to pay only $300. Cases sometimes occur in which the difference of the results of the two modes of computation is as great as in the above example, but it is usually much less, and often little or nothing. It is a question then of some practical importance, whether one or the other of these modes of adjustment is to be adopted, and this question has of late been much discussed.
In considering this subject, we encounter, in the first place, a mere question of fact, namely, whether there is, or has heretofore been any definite, uniform, and general usage on this subject, so well settled and notorious, and of so long standing, that contracts of insurance may be supposed to be made in reference to it, to the same effect as if it were inserted in words in the policy. That there is a usage, to make a deduction of one third of the expense in case of repairs, there is no doubt, and the practice of making such a deduction is founded wholly upon usage, since the policies contain no express provisions on the point. They provide that the underwriter shall indemnify the assured against losses occasioned by the perils insured against.
1 The above opinion was published in the Boston Daily Advertiser, May 5th, 1831. VOL. VI.NO. XI.
But when we inquire respecting the rules and conditions of making this indemnity, we must necessarily go out of the contract and resort to usage: or rather the contract refers us, either implicitly, or, as in some policies, expressly, to usage. The question is not, therefore, whether there is a usage, but what is the precise character and construction of this usage. Whether this deduction is to be made from the gross expense of repairs before deducting the proceeds of the old materials saved, or the net expense after such deduction, is not, to my knowledge, intimated in any marine ordinance, or in any treatise on the subject of insurance, with one exception, which will be noticed. It would, therefore, be quite impossible to prove a general, universal usage, as to the mode of making the deduction.
If the inquiry is confined to the United States, it will be found, at once, that different practices have prevailed in different places, and it would, I apprehend, not be easy to show, that a practice of either mode of making the deduction, had prevailed so uniformly and for so long a time in any one place, as to authorize the presumption, that such particular mode is understood, and impliedly assented to, by all persons making insurance in such place. The question had not come seriously into discussion until within a few years, not long enough to make any practice so notorious, as to give it the force of a law, even though it should have been uniform in any one place during that time. Let us suppose that the underwriters in any one port, as Boston, or Salem, or Portland, shall adjust losses for five or six
years in a particular way in respect to this deduction, and the assured in general make no question about it, or, if the question occurs to them, prefer to have the loss settled, rather than contest a point, at a greater expense than the amount in dispute, it would certainly be unjust, on this account, to fix a usage upon them, and deduce a rule which should be perpetually binding.
In a contract so important as that of insurance, so general in its character, being substantially the same throughout the whole civilized commercial world, there is a very serious objection to the introduction of a usage of any one town affecting its substantial provisions. In the mere acts of parties collateral and incidental to a contract, which are necessary in order to secure the benefit of it, and which are matters of daily experience, so that any body may take notice of them, as for instance, the