1822. Dorr V. The Pacific less have been able to prove error, partiality, and even corruption in many of these foreign proceedings. But the reason why he could not be permitted to do this is stated by Mr. Justice JOHNSON, who says: "Not being at liberty, as it were, to lift the mantle Company. of justice cast upon their decrees, it is, as to other tribunals of justice, immaterial what errors it covers; neither the fallibility of the judge, the perjury of witnesses, nor the oppression and injustice of nations, will sanction a deviation from this general rule." The only inquiry the Court feels itself authorized to make, is, had the foreign tribunal jurisdiction? And there is but a single instance where the sentence or judgment is not conclusive; and that is where the party claiming the benefit of it appears before our Courts to enforce it." So, also, other matters beside awards, verdicts, and judgments, are held unimpeachable. Thus, evidence was refused, to show that the official certificate of a regularly appointed land surveyor contained incorrect statements." 1 We may perhaps concede another case in which judicial proceedings may be impeached, viz. where the judgment is proved to have been obtained by fraud or unfair practices, by the party attempting to avail himself of it. But the fraud here meant is not fraud in the officers of the Court, but in the party. No fraud is imputed to the underwriters; and as to the agents, none can with justice be imputed to them. Besides, they were only the general agents of a Rose v Himely, 4 Cranch, 512. Appx. Phillips v. Hunter, 2 H. Bl. 410. c Pollard v. Dwight, 4 Cranch, 421. 1822. Dorr V. The Pacific the defendants, and not their agents to perpetrate frauds. As to this survey, they were the agents of the assured, and did not at the time know that there was any insurance. 4. As to the other rejected evidence: the first item of it is the answer to the question, whether the master authorized the statement relative to the irreparable condition of the vessel. Here the assured calls upon his captain to swear that the statement contained in the petition presented by his proctors to the Court was untrue. The acts of the attorney in the course of judicial proceedings bind his principal, and this, even if he have in fact no authority from the principal. The remedy must be against the attorney." Here the authority of the proctors is not disputed. It is only contended that they misconceived or misrepresented the statement of their client. All the other items of rejected evidence are liable to the objection that they contradict the record. Besides, affidavits of jurymen (and surveyors stand in the like predicament) cannot be admitted to impeach their verdict.' As to the answer to the question, whether the Messrs. Storrs did not direct the master to call on one of the surveyors, as being a purchaser at the sale of the cargo, for the price, &c. Beside the consi a Anonymous, 1 Salk. 86. 1 Keb. 89. Reinholdt v. Alberti, 1 Binn. 461. Denton v. Noyes, 6 Johns. Rep. 296. b Vaise v. Delaval, 1 T. R. 11. Jackson v. Williamson, 2 T. R. 281. Owen v. Warburton, 4 Bos. & Pul. 326. Rogers v. Rogers, 4 Johns. Rep. 485. 1822. Dorr V. The Pacific deration that the account of sales was better evidence; the declarations, or directions, of an agent, except when they are part of the res gesta, are not evidence against the principal. The circumstances, Insurance too, were irrelevant. No fair presumption flows from a purchase of part of the cargo. 5. As to the supposed collision between the survey and the finding of the jury, it may be observed, that there is no necessary collision. The survey finds the vessel unseaworthy on the 16th of October. The jury find that she was seaworthy when she sailed, on the 9th of September. But ships have the principle of decay inherent in their constitutions, and how can the Court, judicially, say that during the 37 days which elapsed between the sailing and survey, the vessel may not have passed by the progress of decay from a state of bare seaworthiness to unseaworthiness? And, even supposing there is a collision, the finding of the jury must give way to the survey, because the finding in opposition to the survey was incorrect. Perhaps the Court ought, upon the production of the survey, to have directed the jury to find for the defendants, and to have tendered instanter that judgment which they rendered afterwards. But was this delay error, and such an error as the plaintiff can take advantage of? The agreement that the survey shall be conclusive, is the voluntary agreement of the parties. Persons of full age and sound minds have a right to make what contracts they please; and to have them enforced, provided they be not unlawful. Courts Company. 1822. Dorr will not inquire whether the clause be reasonable or unreasonable, expedient or inexpedient. It can be no more disregarded than any other part of the poliInsurance cy, such as a warranty. Does the Court ever inquire Company. into the reasonableness of a warranty? V. The Pacific The case cited from 3 Cranch, 137. does not agitate the conclusiveness of the survey. It turned on the state of the pleadings. The plea was, that the vessel was unsound when she sailed on the 24th of October; and the Court refused to direct the jury that the survey made on the 26th of November was. evidence of that fact. All the other cases admit that a condemnation for rottenness or unsoundness alone, is a conclusive bar. The special verdict finds the survey to be a regular survey. It is not to be expected that such surveys will adopt the very words of the clause. They are made abroad, and frequently in a foreign language; and such a coincidence would be suspicious. It is sufficient if it appear from the whole survey, that rottenness is the sole ground of condemnation. The survey condemns, in strong and decisive terms, and no cause is intimated but decay. veyors find the vessel leaky. a sufficient cause for that? being unsafe and unfit ever to there is but one disease in a vessel that is incurable, that is, rottenness and there can be no doubt, from the face of the survey, that the vessel was condemned for unsoundness. The object of the clause was to It is true the surBut was not rottenness They condemn her "as go to sea again." Now, a Mar. Ins. Co. v. Wilson. have the state of a vessel definitely ascertained where she is broken up, and examined. It is a wise provision, which has been sanctioned by experience, and adopted in other States, and ought not to be made a dead letter by interpretation. Mr. H. D. Sedgwick, in reply, stated, that it had been contended that it was the plaintiff's duty to have excepted at the trial to the proof of the survey. He did all that from the nature of the case could have been done. The proof, such as it was, of the suryey, was inseparably connected with the preliminary proof of loss, which he was bound to produce. When the defendant's counsel claimed the effect now sought to be given to the supposed survey, the plaintiff resisted, and excepted to the opinion of the judge that the decree was sufficient evidence of the survey. Besides, the plaintiff's guarded and qualified admission, viz. that the copy produced was a true copy of the record of the Vice Admiralty Court, shows the intention of the parties. The defendants were therefore fully put upon their guard, and would have produced and proved the survey, if they could have done so. An analogy is supposed to exist between the report of the surveyors, and the award of arbitrators; it is said that an award cannot be impeached under the general issue; and that partiality cannot be pleaded to an administration bond. But these remarks, true or false, apply only to the common law rules of pleading. We are 1822. Dorr V. The Pacific Company. |