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1822.

Dorr

V.

The Pacific

regular survey must, therefore, in every instance, be such as is known to the laws and customs of the port in which a vessel happens to be. In this instance, both from the jurisdiction assumed by the Insurance Company. Court, and the known habits of British jurisprudence, the mode of passing a survey through a Court to give it authenticity, may well be adjudged a regular survey according to the laws of the port into which this vessel was forced. If this be the case, it follows that the exemplification of the proceedings of that Court is not only admissible evidence, but perhaps the only evidence that could be received of the survey. And as to the idea of extracting the original return from the files of that Court, to produce it here, it will not bear reflection. The same considerations fully justify the Court below in rejecting the evidence of the captain, offered to rebut the decision of a Court, and that decision, both procured by the plaintiff's own agent, and produced by himself in evidence.

But it is contended, that though the construction of the covenant be with the defendants, and the survey be held to be legally before the jury, and "a regular survey" within the meaning of the policy, still it is not conclusive against the plaintiff, inasmuch as it certifies the existence of other causes of loss, besides the decayed state of the vessel.

It is unquestionably true, that the survey must respond to the covenant, and if the vessel be declared unseaworthy, for any additional cause, besides her being, in the language of the policy, "unsound or rotten," the defeasance, if it may be so called, will not avail the defendant. But what is the case here?

1822.

Dorr

V.

Insurance Company.

All the facts to be gathered from the exemplification of the condemnation, taking it from the commenceThe Pacific ment to the close, are, that the vessel encountered tempestuous weather, that she was forced to put into New-Providence, in consequence of springing a leak, that the Captain" conceiving her not only unfit to proceed to sea again in her present state, but altogether unworthy of being repaired," libelled her in the Admiralty, and prayed a warrant of survey upon her; upon issuing the warrant, the surveyors proceeded to an examination, and finding the vessel very leaky, stripped off part of her ceiling, and found her, as they report, "in a very decayed condition." They thereupon certified her to be "altogether unworthy of being repaired, and that she ought to be condemned as being unsafe and unfit ever to go to sea again." Here decay is exhibited exclusively as the mortal disease, and every thing else is either inducement or consequence. A bad vessel might have made a safe voyage, had she experienced no trying weather, and a good vessel would have encountered gales without injury. Springing a leak was the consequence of that state of decay which weakened the whole fabric, and her being unworthy of repair, or unfit to go to sea, was no additional cause of condemnation, but the mode in which her disease produced her destruction. Causes upon similar policies, and under similar circumstances, have in several instances passed in review before the tribunals of this country, and received decisions consouant to this. The case between the Marine Insurance Company of Alexandria and Wilson, decided in this Court, did

not resemble this in any prominent feature, except that the policy contained the same clause, and the defence was attempted under the protection of it. But neither in the evidence nor in the pleadings, did the defendants bring themselves within the provisions of

the clause.

This Court is therefore of opinion, that there was no error in the decision of the Court below. But an inconsiderable omission (made palpable by the briefs furnished by both parties) having been committed in copying the record, and which leaves it doubtful in what form this decision is to be certified to the Court below, this Court will, for the present, order a certiorari to issue, that the correction may be duly made. Certiorari awarded.

1822.

Dorr

V.

The Pacific

Insurance
Company.

INDEX

то

THE PRINCIPAL MATTERS

IN THIS VOLUME.

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3. Actual possession is not neces-
sary to give the party the benefit
of the treaty; but the existence
of title at the time is necessary.
Id. 545
4. Where J. D., an alien and Bri-
tish subject, came into the Uni-
ted States subsequent to the
treaty of 1783, and, before the
signature of the treaty of 1794,
died, seised of the lands in ques-
tion: Held, that the title of his
heirs was not protected by the
treaties. Id.
544
5. In what cases citizenship may
be presumed so as to confirm a
title to lands. Id.

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545

EXCHANGE AND

OF
PROMISSORY NOTES.

1. A bill, or note, is prima facie
evidence, under a count for
money had and received, against
the drawer or endorser. Page's
Administrator v. The Bank of Al-
exandria,

35

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