venience of the jury; but such a verdict is not given until the 1802. jurors have parted with it, and it is read and affirmed in open JONES and court. 3 Bl. Com. 377. Until this last step the trial continues; CLARKE the trial is over when this last step is taken. By this undeniable V. position all Mr. Dallas's cases are done away; all of them admit that the exception will answer if taken at any time before verdict.

But there is also an important difference between an exception to evidence, and an exception to the charge. In the first case if it be not made when the evidence is offered, a reliance is placed on the sufficiency of the evidence, and better or additional evidence is not sought; the exception taken at a late period would therefore if valid strip the party of his support when he 'no longer had the opportunity to procure more. But before the charge each party is presumed to have exhausted his evidence, at least so far as is material; and no injury can accrue to either party by a subsequent exception, if it be made before verdict. By this distinction too the cases read are explained away. Tidd 314. is of an exception to evidence; so Bull. N. P. 315. Wright v. Sharp, and Symmers v. Regem. Mostyn v. Fabrigas is not to this point either way; nor is Money v. Leach; and the precedents cited shew the exception to have been taken even subsequent to the verdict. Bull. N. P. 319. Lill. Ent. 250.

Dallas in reply observed that there was no distinction in the books between charge and evidence; and that the cases of Pocklington v. Hatton, and Wright v. Sharp related to the charge.

Per CURIAM. A jury may depart from a privy verdict. Until it has been opened and confirmed in court, it is in fact no verdict; and the authorities and precedents which have been read shew undeniably that if the exception to the charge is taken at any time before verdict it is in season. We cannot refuse to allow the bill in this case; and we are happy to do it as it will bring the principal question before a higher tribunal.

Insurance
Company

N. A.

1803.

Monday, January31st.

BROWN against GIRARD.

made by the defendant underwrote a policy of insurance on the HE THE

A protest

captain of a

hours after

where both

schooner Eagle, upon a voyage at and from Edenton, vessel within North Carolina, to Cape Nicola Mole. The vessel was captured twenty-four as she was sailing from Philadelphia to Cape Nicola Mole, carhis arrival at ried into Port de Paix and condemned. At the trial of the his first port cause before Judges Smith and Brackenridge at Nisi Prius in June 1802, the plaintiff's counsel, to excuse the deviation, and insurer offered in evidence the protest of the captain made within without no- twenty-four hours after his arrival in Philadelphia, where both tice to the the plaintiff and defendant resided, but without notice to the evidence in defendant, to prove that the vessel upon her voyage

the owner

resided, and

insurer, is

tween those parties to

occurrence

from Eden

an action be-ton to Cape Nicola Mole struck on Ocracoke Bar, by which she sprung a leak, and that in consequence of stormy weather Phishew that an ladelphia was the first port she could make. This evidence was at sea had objected to by the defendant's counsel, and refused by the made a de- court, reserving the question, and giving the plaintiff leave, in cessary. case he should be nonsuited on this ground, to move to take off the nonsuit. The plaintiff being unable to supply the proof suffered a nonsuit, and accordingly now moved to take it off,

viation ne

Condy for the plaintiff contended that the protest of the captain had been invariably admitted in Pennsylvania, as evidence in cases between insurer and insured to prove capture, to excuse deviation, and in general to establish transactions at sea. Nixon v. Long (a), Story v. Strettell (b), Richette v. Stewart (c). That there was nothing in these cases, and nothing in the reason of the rule to confine it to foreign protests; that they had been admitted here on much the same ground, upon which a trader is allowed to prove his book of original entries, the necessity of the case, which justifies the admission of a protest made at home as well as any other. Notice to the insurers was unnecessary. A cross examination would not have given the document any additional effect in court. It is indeed presumed to be impracticable as the protest must be extended within twenty-four hours after arrival, and the insurers are not known to the captain. A protest has no resemblance to the ordinary deposition of a witness. It is made before a dispute occurs, before any action (a) 1 Dall. 6. (b) 1 Dall. 10. (c) 1 Dall. 317.

can be brought, and by a person who is in some measure the agent of both parties. A protest, made here was admitted int the Common Pleas in Gilchrist v. Ward, before Judge Biddle.

Rawle and Ingersoll answered that the admission of a captain's protest in any case is a dangerous exception to the salutary rules of evidence. It is always rejected in England, even under the most favourable circumstances, Senat v. Porter (a); and generally through the United States. It is an ex parte affidavit by a person under strong temptations to colour or conceal facts for the purpose of justifying himself. Where however it is made abroad under certain regulations, it must now be received in Pennsylvania, for so are the cases cited; it has been thought admissible from the necessity of the case. But where is the necessity that when owner and underwriter reside in the very port of arrival, the captain without notice of any kind should proceed to make his deposition in a corner. If a cross-examination would not give to the instrument the character of legal evidence, it would get at the truth. The cases have never gone the length of admitting a protest made at home. In Gilchrist v. Ward, a bill of exceptions was tendered to the court's opinion, but was never prosecuted, because the verdict was for the excepting party.

SHIPPEN C. J. delivered the opinion of the court.

The question is whether the captain's protest made in the port of Philadelphia, (where both insurer and insured resided) on a voyage from Edenton to the West Indies, can be given in evidence? The protest of the master of a vessel was first ruled to be evidence in the case of Nixon & Harper v. Long, in 1762. On every occasion since, both before and since the revolution, as between insurer and insured such protests have been admitted in evidence. But it is objected that the protest was not made in a foreign port, but in a port where the parties resided. I take it that the reason of ever admitting it arose partly from its being an instrument which the insurance offices always expect to be produced to them, as a document to prove the loss, and partly from the necessity of the case as a commercial transaction. What is the nature of this necessity? I take it that the loss or damage arises on the ocean, and that the master is the (a) 7 D. & E. 158, F

VOL. I.

1803.

BROWN

V.

GIRARD

1803.

BROWN

only person acquainted with all the facts; and he immediately on coming to shore making a protest, it is admitted to be read in evidence in a commercial case, contrary to the general rules GIRARD. of law in other cases. Whether the parties reside here or elsewhere, this necessity is the same, as the damage was at sea, and the master is the best able to give an account of it. The calling the insurers before the notary when the protest is made, to give them an opportunity of cross-examination, would be a novel proceeding, and if done, would not by the rules of law make it better evidence, as no action then depended. Therefore let the nonsuit be set aside.

Nonsuit set aside.

Monday,

March 14th.

The court

will not per

mit a rule of

after there

has been a meeting of the referees and the parties have proceeded

RUSTON against The Administrators of DUNWOODY.

N behalf of the plaintiff a motion was made by Rawle to strike off the rule of reference, which had been made in reference to this cause, upon the ground that the original defendant was dead, be struck off that the rule had been assented to by the plaintiff with the expectation that from a personal understanding with the defendant he would derive certain accommodations, which his administrators who were now parties to the action could not give, and that the rule being entered into between the plaintiff and before them Dunwoody, it could not operate as a rule between the plaintiff and the administrators of Dunwoody. He cited 3 St. Laws 94., and argued that from the spirit of the privileges there allowed to administrators, the court would be authorized to rescind meeting one the rule upon an application by them, and of course, to make of the origi- an equitable reciprocity of advantage, they should do it for the nal parties is dead, and his surviving party.

in the controversy; notwithstanding

since the

representatives have

been substituted.

T. Ross for the defendants answered that there had been several meetings during the life time of Dunwoody, and therefore the plaintiff had already derived the advantages which he contemplated in agreeing to the rule: that it was a general practice of this court to refuse to rescind a rule of reference after there had been a meeting of the parties; and that as the administrators had come in voluntarily without asking any favour, there was no equity in granting one to the plaintiff; though the act

cited appeared to regard no other privilege to the defendants than that of a continuance.

43

1803. RUSTON

v.

DUN

Per CURIAM. Rules of reference should not lightly be struck off, after a party has felt the pulse of the referees at a meeting, WOODY. and concessions have been made which cannot be afterwards used. Upon the circumstances of this case we must continue the rule of reference. (a)

EJECTMENT for a house and lot in the district of South-A report of

referees may

ties be sent

ferees forthe

purpose of

wark. John Snyder the lessor of the plaintiff obtained a without conjudgment against Peter Hoffman in this court at September term sent of par1798 for 305 dolls. and 58 cts. and costs; and by a fi. fa. he back to the took in execution the premises in question. The inquest found same rethat the rents and profits would pay in seven years; and a liberari facias was then issued, and a return made that the house correcting and lot were delivered at a certain valuation to Snyder. At the informality. time of this execution Eleanor Hoffman the defendant, who was the wife of Peter but had separated from him, claimed and was possessed of the property under a conveyance from Peter to one Hannah Toy; but this conveyance was alleged to have been without consideration and with intent to defraud Snyder; and he therefore brought the present ejectment.

The matters in variance in this cause were referred under a rule of court; and the referees made the following report: "We "the referees &c. do award a balance of 364 dolls. and 37 cts. "due from Peter Hoffman the defendant to John Snyder plain"tiff, with costs of suit. It is in full proof before the referees "that the said Peter Hoffman and Eleanor his wife conveyed "a certain house and lot in the district of Southwark unto Han"nah Toy in fee, without any valuable consideration; which "said house and lot were reconveyed by the said Hannah Toy "to Eleanor wife of the said Peter Hoffman without any con"sideration as appears to us, thereby intending to prevent the "said house and lot being levied on for the payment of the just