1822. Dorr V. The Pacific Court here, or a copy duly proved according to our rules of evidence, and not by a partial garbled state ment of that survey which the register or other officer Insurance of that Court might choose to make. Company. The Court below erred in overruling the several questions put to the witness Thompson. The petition was the foundation of the jurisdiction of the Court. The decree of a prize Court (a much stronger case) has been held void for want of a libel, as without it there could be no jurisdiction. Suppose in this case there had been no petition, then the acts of the Court would have been wholly founded on the assent of the party. The answer of the witness to the second question overruled by the judge, might have shown, not merely crassam negligentiam in the surveyors, but direct fraud and falsehood. says, "the The third question is precisely similar to one which was considered proper by the Supreme Court of the State of New-York. The Court there evidence of the declaration of Rogers (one of the surveyors) was admissible, because, though the plaintiff offered the survey as preliminary proof, yet the defendants offered it as proof in chief, and the plaintiff had a right to show the contradictory declarations of Rogers as a witness for the defendant." The object of the last question was to show that the conduct of one of the surveyors proceeded from a Sawyer v. Maine Fire Ins. Co. 12 Mass. Rep. 291. interested motives, and thus to render more probable the fraudulent intent imputed to him. It was overruled on the ground that better evidence might have been produced. But the account sales, which is a commercial document, only admissible by a relaxation of the rules of evidence in regard to foreign transactions, was not so good evidence, as the res gesta, which he offered to prove. The witness, it is true, was not present at the sale, but he offered to prove the fact of his recovering payment from the surveyor, as a purchaser of part of the cargo. The rule is universal, that fraud may be proved, and when proved, will vitiate all proceedings. It must be proved directly, when the party injured by it has a direct opportunity; and, therefore, in the ordinary case of misconduct of jurors or arbitrators, the party must move to set aside the verdict or award. But this rule does not hold where the person injured was not a party to the proceedings, and of course had no such opportunity. Whatever objections a party to the proceedings might take at the time, a third person may take at any time, when the proceedings are made to bear against him. But it may be said, that the captain was our agent, and the proceedings were at his instance. This begs the question; for if the loss were such as to authorize the abandonment, then the captain by relation was the agent of the underwriters. Besides, the Messrs. Storrs were the agents of the defendants. Their interference in the proceedings is liable to strict scrutiny, and any impropriety ought to invalidate proceedings conducted under their direction, even though it were shown, (as it is not) that the Captain connived with them. 1822. Dorr V. The Pacific Insurance 1822. Dorr V. The Pacific The case most analogous to this in common law proceedings, is that of a jury of view. Now, suppose it was shewn that such a jury never went on the land in question, would not their verdict have been set Company. aside? The evidence he offered was equivalent to this. It was not necessary for us to show any agency of the defendants in the alleged misconduct of the surveyors. The evidence of fraud is necessarily circumstantial. It was enough that they sought to profit by it. Mr. Griffin, contra, contended, (1.) that, by the lex loci contractus, it was the business of the assured to produce the survey; and that it was to be proved, not by examining the surveyors, but by an authenticated copy of the proceedings. This the plaintiff did produce, and read in evidence. It was a copy of all the proceedings. The sentence of condemnation, disconnected with the survey, would be unmeaning. Nor is it any objection, that the survey is set forth by way of recital. It would not have been better authenticated, had it been in hæc verba. A party producing in evidence, a deed or other instrument, is bound by the recitals. But the objection to the competency of the evidence was too late. The bill of exceptions does not state that it was taken, until the judge charged the jury; but it evidently implies that the objection was a Haff v. Mar. Ins. Co., 4 Johns. Rep. 132. not taken sooner; and the plaintiff recognized the survey, as being in evidence, by attempting to impeach it. 2. As to the objections to the rejected testimony, which was offered to show the survey to be incorrect: The survey was given in evidence by the assured. Expunge it, and what cause for a total loss appears? In that event, the judgment would necessarily have been for the defendants. Now, it is a rule that a party cannot call a witness, and then impeach him. The reason assigned by Mr. Justice BULLER is, that it "would enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying the witness if he spoke against him.” This rule applies with equal force to impeaching a document, introduced by the party who seeks to impeach it. In the only case where the assured was allowed to contradict the survey, it was given in evidence not by himself, but by the underwriters.' 3. But this survey was a proceeding of a nature that the law does not allow to be impeached. It may be likened to an award of arbitrators, being a tribunal of the parties' own creation; and you cannot, under the general issue, in an action at law, impeach the award of arbitrators, even for partiality or corruption. The reason assigned for this doctrine is, that it would be a surprize on the opposite party. a Bull. N. P. 237. Phillips' Evid. 232. b Haff v. Mar. Ins. Co., 8 Johns. Rep. 163. 167. e Wiles v. Maccarmick, 2 Wils. 148. Kyd on Awards, 327. VOL. VII. 76 1822. Dorr V. The Pacific Insurance 1822. Dorr V. The Pacific And does not this reason emphatically apply to the case now under consideration? Neither can corruption or partiality be pleaded to an action on the arbitration bond." The only remedy is by a bill in equity, where all persons implicated may be made parties. In the present case, the assured might have applied to the Court of Admiralty, or filed his bill in Chancery. Perhaps, however, the survey may be more properly likened to the verdict and judgment of a Court. The policy contemplates, that the survey is to be a judicial act, when it requires "a regular survey." The policy vests jurisdiction in the Court of Admiralty at the port of necessity and in the present instance, the agent of the assured called that jurisdiction into activity. It is a settled maxim, that a verdict and judgment cannot be impeached. The sanctified character of a judicial proceeding attaches itself even to a foreign sentence, which is conclusive as to those facts which it professes to decide; and that, too, even if the sentence is founded on unjust and piratical principles. During the French revolution, the firmness of the a severe test in respect to the principle now in discussion, and so was that of this Court in the case of a judgment founded on the Milan decree." Had it been competent, the party aggrieved would doubt English judges was put to a Braddick v. Thompson, 8 East. Rep. 344. c Crondson v. Leonard, 4 Cranch, 434. d Williams v. Armroyd, 7 Cranch, 423. |