Patterson v. Maryland Insurance

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Appeal from Baltimore County Court. An action on the case was brought by the appellant, (the assured,) against the appellees, (the assurers,) on a policy of insurance, dated the 23d of October 1795, whereby the assured caused himself to he insured, lost or not lost, at and from Baltimore to the coast of Africa, with liberty of trading on the said coast, and at and from thence back to Baltimore a-gaits, upon the body, tackle, apparel, and other furniture of the schooner called The Industry. The declaration contained four counts — The first on a Barratry by the master and marines, whereby the vessel was wholly lost to the assured. The second on a Barratry by the master on the 1st January 1796, &c. The third for a capture by pi-votes, &c. Thq fourth for a capture by persons unknown, Ac. Plea, the general issue. At the trial the plaintiffi (now appellant.) read in evidence to the jury the policy of insurance, dated the 23d of October 1793. He also gave hi evidence, that at the, time of making the policy, he was and still is a citizen of the United Slates, and then vras the sole owner of the schooner The Industry, mentioned in the policy, an American vessel, regularly documented as such; and that the said schooner sailed from the port of .Baltimore in good safety, on the voyage mentioned and described in the policy, on or about the 23d of October 1795, with Nathaniel A. Ogden on board a? master, and Thomas Buckner as mate, for the said voyage, and a certain Charles Leonard I,e Baron as supercargo for the said voyage. That on the 23d of May 1796, the schooner The Industry returned to Baltimore, ami was reported and entered at the, custom-house there, by the phsintiíf, as coming from Saint Bartholomew’s in the ?FW Indies. That the said master, mate and supercargo, arrived in the said Schooner ai the port of Bidrimore. together with one Henry ' 1 „ . . , ' , ' Rains and John Marine!, who left the port of Baltimore la the-said vessel, as seamen, and returned in her as such, and who were the only seamen who sailed in the said , , . . . schooner on. the said voyage, and returned, m her as atoresaid. He also gave in evidence, that Ogden and Buchner have been dead about two years, and that Rains abd Mannd went from the port of Buliimore in the month of November in the year 1796, to the eastern shore of this state, and cannot now be found or heard of in the port of Baltimore. But offered no evidence to prove that the said mariners and supercargo were dead, or that any summons-issued for them to testify in this cause, or that any steps have been taken by the plaintiff, previous to the empannelling of the jury in this cause, to ascertain their present residence, or to procure the benefit of their testimony. He also gave in evidence, that on the 23d of May 1796, and until on and after the 26th day of the sam e month, Thomas Donaldson was a notary public, residing in the port of Baltimore, and duly authorised and commissioned. He also offered in evidence, that it is, and for more than twenty years last past, has been the usage and custom of merchants, insurers, and others dealing in and making insurance in the port of Baltimore, in cases where they have adjusted their losses without suit, to receive the protests of the captures of vessels insured, as evidence of the matters therein stated, when losses are claimed, and for insurers, when called on for payment of such losses, to require the said protests tobe produced, or their nonproduction to be accounted for by the claimants, before such losses are adjusted or paid, and not to call in question the truth of the facts stated in such protests, unless some strong ground of suspicion should appear. , He also gave in evidence, that it is usual in Baltimore for the captains of vessels arriving from other ports, to note their protests with a notary within twenty-four hours after their arrival respectively, which noting is done by informing the notary of the principal matters intended to be contained in such protests respectively, and intended to be thereby protested against. But that it is not deemed essential that such noting should be done within twenty-four hours as aforesaid, or within any other particular time, and that protests are never objected to by insurers, or others, for not being noted within twenty-four hours, or any other particular time, provided the said pro; tests be noted or made within a reasonable time after ar« rival. And thereupon tile plaintiff, to prove the several matters contained in his declaration in this cause alleged, produced a protest made in the port of Baltimore on the 26th of May 1796, by Ogden, Buckner, flams and Mannel, by Thomas Donaldson beforé mentioned, and by him duly certified under his notarial seal, and recorded iu his office,- and offered to read the said protest to the jury, for the purposes aforesaid, as the protest of the said master and mate. He also, for the purposes aforesaid, produced a protest made in the island of Samt Bartholomew's, in the West Indies, on the 26th day of March 1796, by Ogden, Buckner, Ilains, and one John Cockeny, then a seaman on board of the schooner, before a notary public there, and duly certified by him under his notarial seal, and offered to read the last mentioned protest in evidence, for the purposes as aforesaid, as the protest' of the master and mate. The defendants offered in evidence, that Ogden and Buckner, from the time of their arrival at the |iort of Baltimore, resided there for several years, and that the defendants had no knowledge of the protest of the 26th of May 1796, of of the matters therein contained, until and alter the institution of this suit, and that the plaintiff, from the making of the policy of insurance, until the present day, hath constantly resided at Baltimore. The defendants objected to the reading of the protest of the 26th of May 1796, to the jury. And the court, (Nicholson, Ch. J. and Hollingsworth, A. J) sustained the objection. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.