Patterson v. Maryland Insurance

At the present term the opinion of the court was delivered by Earle, J. A voluntary affidavit ranks in equal grade with hearsay testimony in the scale of evidence* arid in no case is received where better testimony can, from the nature of the case, be had. The protest of the captain was merely a voluntary affidavit, and a notary public, except in those cases where a protest by the lex tiiercatoria, as in cases of foreign bills, or by statute, as the act of 1785, ch. 38, statute 9 & 10 William III, ch. 17, 3 & 4 Ann. ch. 9, in case of damages on inland bills and notes, has no authority to take a protest. The point of view in which the authority of this officer is to be considered generally, relates to those commercial transactions occurring in one country which are to be proved in another, or in which foreigners are interested; and the office derives its existence from the courtesy of one nation to another; and where he is to do certain acts by statute, the authority is limited to its designated object. At common law, the best evidence must be had the nature of the transaction admits of. This claim is founded on a loss at sea, in a trading voyage. The captain’s protest, before a notary, is produced as evidence of the loss, and the transaction is of late occurrence. Part of the crew are stated to have been residents of the eastern shore, to have returned in the vessel, and to have remained for sometime after in Baltimore, Those persons were not searched for, and it does not appear that they had left the state, and could not be found. Therefore, as those persons cannot be presumed to be out of the reach of the process of the court, the plaintiff should have produced them, for they must be supposed to be equally cognizant of facts happening on board the vessel on her voyage, Besides, a party is entitled to cross examine a witness,' and it is a general rule, that without giving him'an opportunity to do so, his deposition shall not be evidence. In this [75] case there was no opportunity, and on that ground the protest was incompetent. It is true that in some few cases i . . similar protests liavo been read in evidence, but it has been 1 , _ to impeach the testimony of the protesters, and not to dispense with their parol testimony, or that of others, or of other proof. This protest is not to be considered as a deposition de bene esse. It differs in two essential particulars; for first, depositions de bene c-sse are taken by some court, or by an express authority derived therefrom, or under our- acts of assembly to perpetuate evidence; and secondly, they are always taken upon notice given to the adverse party, if practicable. ' By tiie law of merchants, the captain must protest, on arriving at a port, against damages happening in a voyage thereto, but such protest is not evidence to charge the underwriters upon their policy. It is to protect the captain from his liability, and in such cases some others of the crew must join in the protest; and the reason is, that the captain may thus perpetuate that evidence which may be necessary to exonerate him from personal responsibility, as the crew, being persons of no fixed residence, and liable to more than ordinary casualties, their testimony is therefore more necessary to be taken, and is more liable lo be lost. As to using this protest as prima fade evidence only, it Js equally as objectionable as if used as positive proof, For the purpose for which it was produced in this case, as in all others, throws the onus probandi upon the adverse person, and therefore, if allowed as evidence on that score, it established the cause of action unless contradicted. For prima fade evidence is sufficient, if not destroyed by other proof, as a note is prima fade evidence of a consideration, and throws the onus probandi on the opposite party. The court affirm the judgment of the court below, with» costs to the appellees.