mary, (and probably an imperfect one,) which is contained in the record of the Vice Admiralty Court, and it is apparent from this record, that the words of the surveyors are not given. If there ever was any paper in writing signed by the surveyors, it has been wholly re-modelled. All the tenses of the verbs are changed. The defendants should have produced the survey itself, or, at least, have distinctly and unequivocally required the plaintiff to produce it. They did nei ther. Upon what evidence then do the defendants rely to substantiate the fact in question? Solely on the record of the Court of Vice Admiralty at New-Providence. It is first to be observed that the clause in question in the New-York policies (of which this is one) differs in one respect from the correspondent clause in the policies of the cities south of New-York, upon which adjudications have been had. In the southern policies, the phraseology is such as might seem to point to judicial proceedings; here the words are, "if the above vessel upon a regular survey should be thereby declared, &c. ;" distinctly placing the bar on the survey alone. The great question between the parties is, whether the decree in the Vice Admiralty Court is conclusive evidence of a regular survey; for if not conclusive, the verdict in our favour will entitle us to judgment. It will scarcely be pretended, that independently of the stipulation in the policy, the record of the Vice Admiralty Court, or even the survey itself, however au 1822. Dorr V. The Pacific Insurance 1822. Dorr V. The Pacific thenticated, would be conclusive evidence, or any evidence of the unseaworthiness of the vessel. It has been settled too often, and upon too solid Insurance grounds, that admiralty surveys, and the decrees of Company. Courts thereon, are ex parte proceedings, and wholly inadmissible as evidence between the insurer and insured, to make it necessary to do any thing more than refer to the authorities." The precise reason for introducing the clause in question into the policy, was because these surveys were not evidence antecedently. It is evident, therefore, that if the record in question have any validity, either as evidence of a survey or otherwise, such validity must be acquired wholly from the stipulation in the policy, without which the survey itself, and the adjudication of the Court thereon (however efficacious as a foundation of title in a bona fide purchaser) would, as between the parties to this suit, be mere nullities. What then is the stipulation which is now pressed against us? If we allow it all the effect contended for on the other side, it is no more than this-a regular survey shall be taken as conclusive proof of unseaworthiness. The stipulation regards the fact, not the manner in which it is to be proved-there is no stipulation as to evidence. The just construction of the contract requires that there should be a written survey, under the hands of the surveyor. As has been observed, such a survey a Abbott v. Seabor, 3 Johns. Cas. 39. Wright v. Barnard, 2 Esp. N. P. Cas. 701. S. C. Park. on Ins. 548. 6th Lon. Ed. Saltus ▼. Commercial Ins. Co., 16 Johns. Rep. 487. 1822. Dorr V. The Pacific Company. did exist, and was proved in every case reported in the books. Now, we insist that our stipulation, which merely makes this document evidence, does not in any degree dispense with the ordinary and regular Insurance proof of the existence and contents of the document itself. The record of the V. A. Court was not competent to establish this document, and, as before observed, it does not even attempt to do it. If the record be conclusive evidence of the fact and contents of the survey, it must be for one of two reasons. 1. Because it was produced by the plaintiff-or, 2. By its own efficacy. 1st. The plaintiff was bound, by a provision in the policy, to produce to the defendant preliminary proof of loss, thirty days before the commencement of the suit, and it was necessary to show on the trial that he had exhibited this evidence to the defendant. In point of fact, the decree of condemnation in the V. A. Court of New-Providence occasioned, or rather consummated that loss, and, therefore, the plaintiff produced a copy of that decree. His having done so furnishes no reason why the recitals in that decree should be evidence against him, much less why they should be received as incontrovertible; and the hardship of such a rule is the greater in a case like the present, where the plaintiff was required to produce the evidence. A protest of the master is usually produced among the preliminary proof, but it was never supposed that the insured was conclusively bound by all the allegations the captain might choose 1822. Dorr V. The Pacific to insert in it. On the contrary, it has been held to afford no legal evidence." The general rule is, that a document coming from the possession of a party is evidence against him, only where he claims under it, and then it is subject to explanation. Here we claim in opposition to it. It may still be urged that the plaintiff was bound to produce the survey. If it were necessary, we should wholly deny this position. The policy imposes no such obligation on the insured, but simply to produce to the underwriters "proof of interest and loss." In every other respect the parties contest upon the usual principle, viz. that each produces the evidence in his own favour. Both parties so understood their reciprocal rights and duties. The defendants required the production, not of the survey, but of the decree of condemnation. The plaintiff furnished the document as the decree of condemnation, and nothing else. We say, then, as Lord Kenyon justly observed in a similar case, the record of the Court of V. A. proves the fact of the condemnation, and proves nothing else. It is a rule properly and fully settled that the underwriters can make no objection to the preliminary proofs at the trial, except such as they made at the time they were exhibited. The insured is only bround to produce what is specially required. The special verdict in this case finds that the plaintiff, on the defendants' requisition, produced the copy of the a Senat v. Parker, 7 T. R. 158. b Wright v. Barnard, ub. sup. c Vose v. Robinson, 9 Johns. Rep. 192. decree of the V. A. Court, "whereupon the defendants required no further preliminary proof, but refused to pay on the ground of unseaworthiness." Agreeably to the spirit of the rule, they ought now to be held to the ground then taken. Again; this objection, viz. that we were bound to produce the survey, assumes a very important fact, which we by no means admit, viz. that there is or ever was a written document signed by the surveyors, which could be produced. This throws us back to the great and only question in this part of the cause, viz. whether the record of the V. A Court is conclusive evidence. But we contend, that independently of its production by the plaintiff, the sentence of the V. A. Court has not, by virtue of the stipulation of the parties, or its own efficacy, any such conclusive effect as is contended for by the defendants. It may be said that the necessary effect of the clause is to refer the parties to the municipal regulations of any port where the vessel may happen to be in distress, for there the survey must be had. We admit this in its fullest extent. The foreign Court is to order the survey, appoint the surveyors, and the proceedings are all to be conducted according to the local regulations. But this is all. The parties here made no stipulation as to the rules of evidence, upon which the cause is to be tried here. It is universally true that the evidence is to be given according to the lex fori. We consented that the V. A. Court of NewProvidence might order the survey; but then we were to be bound by the survey itself, produced in 1822. Dorr V. The Pacific Insurance |