Smith and others v. Carrington and others.

4 Cranch’s Reports, 62 to 73.

pages 26-32

A witness interested to diminish certain admitted items in the plaintiff’s account, is still a competent witness to disprove other items. [See note at the end of the case, p. 73.]

The defendant having read a letter from the plaintiff’s agent, in answer to a letter from himself, cannot give in evidence a copy of his own letter, without proving it to be a true copy by a witness.

To introduce into a cause the copy of any paper, the truth of that paper must be established, and sufficient reasons for the non-production of the original must be given. [See note at the end of the case, p. 31.]

The court is bound to give an opinion to the jury on a question of law, upon request, if it be pertinent to the issue; but not if it involves a question of fact.

ERROR to the circuit court of the district of Rhode Island.

This was an action of assumpsit brought by the plaintiffs in error, subjects of Hamburgh, to recover the balance due upon an account current, the debit side of which consisted principally of the following charges, viz. insurance made in Hamburgh on the defendants’ ship Abigail, from the United States to Hamburgh, and on the ship and cargo from Hamburgh to the Havanna, and on an intended voyage back from the Havanna to Hamburgh; advances made to the defendants to make up a cargo to the Havanna; bills of exchange accepted and paid; cash advanced, and commissions, charges, and interest.

The credit side consisted chiefly of the proceeds of the freight of the ship, and of sundry articles of merchandize; remittances by bills of exchange; the sales of the ship, (she having been condemned and sold in London by virtue of a bottomry bond given by the defendants to the plaintiffs,) and of five per cent, of the premium of insurance on the intended return voyage from the Havanna to Hamburgh, the same having been returned by the underwriters to the plaintiffs in consequence of the ship having finished her voyage in the United States, instead of returning to Hamburgh.

At the trial below, the plaintiffs took a bill of exceptions, which stated,

1st. That the defendants offered as a witness one Peleg Remington, who had become jointly and severally bound with the defendant, Carrington, in a bottomry or respondentia bond to the plaintiffs, in the sum of 31,950 dollars, conditioned to pay to the plaintiffs that sum on the return of the ship to Hamburgh; the same being the amount advanced by the plaintiffs to the defendants in Hamburgh; and that the ship should so return; for which advance, with other demands, this action was brought. To the admission of which witness the plaintiffs objected; contending that he was interested to diminish the balance due from the defendants to the plaintiffs. But the defendants insisted he was a competent witness as to all items of the account, except the advances for which he was bound, particularly with respect to a charge of 13,718 dollars and 56 cents, for premium of insurance on the intended return voyage from the Havanna to Hamburgh, and which voyage the defendants contended was never begun, and therefore they ought not to be charged with that premium; and especially as the defendants had expressly waived all objections to every other part of the plaintiffs’ account Whereupon the said witness was suffered by the court to testify as to the charge of that premium only. The bill of exceptions states it as admitted, that by the law of Hamburgh, the underwriters are not bound to return the premium upon a change of the voyage, unless that change be notified before the vessel sails.

2d. That the defendants offered in evidence a paper purporting to be a copy of a letter from the defendant, Carrington, to Smith and Ridgeway of Philadelphia, the correspondents of the plaintiffs and a letter from Smith and Ridgeway to Carrington, purporting to be an answer thereunto; but gave no proof that the said copy of Carrington’s letter was a true copy of the original but it was not denied to be in his handwriting, and it was proved that he was in Canton, and not in the United States at the time of trial, and had been in Canton for two years before, but had been corresponded with on the subject of this action since its commencement. Whereupon the court permitted the copy and the letter to go in evidence to the jury.

3d. The plaintiffs, after stating in the bill of exceptions, and referring to all the testimony and other evidence in the case, but not stating distinctly the material facts which they supposed to be the result of that testimony and evidence, and on which their prayer was founded, prayed the court to declare their opinion to the jury whether, if the plaintiffs had actually paid the premium to the underwriters, before notice of the change of the destination of the ship, they had a right, "under the circumstances of the case," to recover the same of the defendants. But the court refused to deliver an opinion particularly thereon.

4th. The bill of exceptions further stated, that the court, prior to the request last mentioned, declared to the jury that "the case wholly turned upon the point whether or not the defendants had given due and seasonable notice of the change of the destination of said ship. That it was a question proper for the jury to decide, whether such due and seasonable notice had been given, and that if they were of opinion that it had been so given, on considering the whole of the evidence, they ought not to allow the plaintiffs said change for the said premium; and with that direction left the same to the jury and the jury aforesaid then and there gave their verdict for the plaintiff for the sum of 13,677 dollars and eight cents, only, and disallowed the said charge and demand of the plaintiffs for the said premium of insurance, except one-half per cent, which the jury allowed."

The errors assigned by the plaintiffs in error Were,

1st. That the court admitted Remington to testify to the point, and under the circumstances mentioned in the bill of exceptions.

2d. That the court admitted the writing purporting to be a copy of a letter from the defendant, Carrington, to Smith and Ridgeway,and a writing purporting to be a letter from Smith and Ridgeway to the said Carrington, to be read in evidence, as stated in the bill of exceptions.

3d. That the court directed the jury that the case turned wholly upon the point whether due and seasonable notice had been given by the defendants of the change of the voyage, as stated in the bill of exceptions; and that this was wholly a question of fact, which it was their exclusive province to determine.

4th. That the court refused to direct the jury, in case it was fully proved to their satisfaction that the plaintiffs had paid the premium in question previous to any notice or information whatever of the change of the voyage, as stated in the bill of exceptions, that they were entitled to recover of the defendants.

Robbins and P. B. Key, for the plaintiffs, contended, 

1st. That Remington was a competent witness.

2d. There was no proof that the copy of Carrington’s letter was a true copy.

3d. That the opinion of the court that reasonable notice was wholly a question of fact, was erroneous. Tindall v. Brown, l Term Rep. 167.

Ingersoll, contra. As to the competency of Remington, cited 3 Term Rep. 27.

The copy of Carrington’s letter was evidence. Richie v. Broadfield, 1 Dall. 16. 17. Park, 406. Russell v. Boehme, 2 Str. 1127. Bingham v. Cabot, 3 Dall. 19. 2 Dall. 384, 51.

As to the opinion of the court given and refused; cited 3 Bl. Com. 372. 1 Dall. 255. 2 Dall. 158. 192.

MARSHALL, Chief Justice, delivered the opinion of the Court.

This case comes up on exceptions to certain opinions given by the judges of the circuit court of Rhode Island, at the trial of the cause before them.

The first exception is to the admission of Peleg Remington as a witness.

This exception appeared to be abandoned by the counsel in reply, and is, indeed, so perfectly untenable, that the court will only observe, that Peleg Remington does not appear to have been interested in the event of the cause in which he deposed, but certainly was not interested in the particular fact to which he was required to depose, and was therefore clearly a competent witness. 

The second exception is taken to the opinion of the court, admitting as evidence a paper purporting to be the copy of a letter written by the defendant, Carrington, to Smith and Ridgeway of Philadelphia, the correspondents of the plaintiffs, and also a letter from Smith and Ridgeway to the defendant, Carrington, purporting to be an answer to the said letter.

To the admission of the letter of Smith and Ridgeway no just objection appears. The verity of that letter is acknowledged on the face of the bill of exceptions, and no cause is stated why it should not have been read to the jury. But the admission of the copy of a letter written by one of the defendants stands upon totally different ground.

To introduce into a cause the copy of any paper, the truth of that copy must be established, and sufficient reasons for the non-production of the original must be shown.

If in this case the answer of Smith and Ridgeway had authenticated the whole letter of Carrington, the copy of that letter need not have been offered, since its whole contents would have been proved by the answer to it. If its whole contents were not proved by the answer, then the part so proved was totally unauthenticated, and may have formed no part of the original letter. In this case, the answer cannot have authenticated the copy, because the bill states that the defendants gave no proof of its being true. This copy, therefore, not being proved to be a true copy, ought not to have gone before the jury. Into its importance or operation, this court cannot inquire. It was improper testimony, and a verdict founded on improper testimony cannot stand.

For this error the judgment must be reversed, and the cause remanded to the circuit court of Rhode Island, to be again tried.

The third exception is taken to the refusal of the court to give an opinion on a question stated by the counsel for the plaintiffs. The difficulty of deciding on this exception does not arise from any doubt which ought to have been produced by the facts in the cause, but from the manner in which the question was propounded to the court.

After a long and complex statement of the testimony, the counsel for the plaintiff requested the court to declare whether, "if the plaintiff had actually paid the same premium to the Underwriters, before any notice of the change of the destination of the ship, they had a right, under the circumstances of the case, to recover the same of the defendants."

To this question the court refused to give an answer.

There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnishes cause for an exception; but it is equally clear that the court cannot be required to give to the jury an opinion on the truth of testimony in any case.

Had the plaintiffs’ counsel been content with the answer of the court to the question of law, he would have been entitled to that answer; but when he involved fact with law, and demanded the opinion of the court on the force and truth of the testimony, by adding the words, "under the circumstances of the case," the question is so qualified as to be essentially changed; and although the court might with propriety have separated the law from the fact, and have stated the legal principle, leaving the fact to the jury, there was no obligation to make this discrimination, and consequently no error was committed in refusing to answer the question propounded.

The record also exhibits a part of the charge given to the jury, on which the counsel for the plaintiffs have argued as if it composed a part of the bill of exceptions. It is in these words: "and the said court, prior to the request last mentioned, did declaro and give their opinion to said jury, that the case wholly turned upon the point whether or not the said defendants had given due and seasonable notice of the change of the destination of said ship. That it was a question proper for the said jury to decide, whether such due and seasonable notice had been given; and that if they were of opinion it had been so given, on considering the whole of the evidence, they ought not to allow the plaintiffs’ said charge for said premium."

That a party has a right to except to a misdirection of the jury contained in the charge of the judge who tries the cause, is settled in this court. Church v. Hubbart, 1 Condens. Rep. 385.

That the opinion which the record ascribes to the judge in this case is incorrect, unless some other part of the charge shall have so explained it as to give to the words a meaning different from that which is affixed to them taken by themselves, is the opinion of this court.

The judges instructed the jury, “that the case wholly turned upon the point whether or not the defendants had given due and seasonable notice of the change of the destination of said ship,” and that if they were of opinion that due and seasonable notice had been given, they ought to find against the plaintiffs, on the question of their right to recover the premium advanced by them for the defendants.

Due and seasonable notice must have been given as soon after the destination of the vessel was changed, as it could have been given, whether the premium had or had not been advanced by the plaintiffs before they received it; or this direction must have left it to the jury to determine whether notice was or Was not due and seasonable, although it might not have been received by the plaintiffs before they hail actually advanced for the defendants the sum in contest.

On the first exposition, these words would amount to a clear misdirection of the jury; because, if the plaintiffs had paid to the underwriters, at the request of the defendants, the premium of insurance, before they received notice countermanding the directions to make such payment, the right given by subsequent circumstances to the insured to demand its return from the underwriters could not affect the claim of the plaintiffs on the defendants for money fairly advanced by them for the use of the defendants.

If the latter construction be adopted, there was still a misdirection on the part of the court. The judge ought not to have left it expressly to the jury to decide whether notice given immediately after the change of the destination of the vessel could be due and seasonable notice, unless it was received before the premium was advanced.

It is, however, not material to the present cause to determine whether this exception does or does not exhibit a misdirection to the jury, since we are unanimously of opinion, that for admitting a paper, purporting to be the copy of a letter from Edward Carrington to Smith and Ridgeway, to go to the jury, which was not proved to be a copy, the judgment must be reversed.

Judgment reversed.


As to the admission or rejection of witnesses on the ground of interest.

2 Peters's Digest, 151, “Evidence.”

The captors are always competent witnesses upon an order for further proof, where the benefit of it is extended to both parties. The Anne, 4 Wheat. 435.

The captors are always competent witnesses as to the circumstances of the capture, whether it be joint, collusive, or within neutral territory. Ibid.

An interest in the suit pending can alone affect the competency of a witness. Owings v. Speed et al. 5 Wheat. 420.

A person having an interest only in the question and not in the event of a suit, is a competent witness: and in general, the liability of a witness to a like action, or his standing in the same predicament with the party sued, if the verdict cannot be given in evidence for or against him, is an interest in the question and does not exclude him. Evans v. Eaton, 7 Wheat. 356. 1 Peters's C. C. R. 322.

It is no objection to the competency of a witness, in a patent cause, that he is sued in another action for an infringement of the same patent. Evans v. Hettick, 7 Wheat. 453.

There are cases in which bankrupts who have obtained their certificates are struck out of the record and made witnesses in chancery; but it is essential that the names of such persons should be expunged from the record as a party, on motion, before they can be examined as witnesses. De Wolf v. Johnson et al. 10 Wheat. 367.

The master of a ship is not a competent witness to exempt the ship from forfeiture occasioned by his own illegal conduct. The decree of condemnation would be good evidence against him, in a suit brought against him by his owners. The Hope, 2 Gallis. 48.

One seaman may be a witness for another in any suit in the admiralty, as well as at common law, although interested in the question, if not interested in the event of the suit. Spurr et al. v. Pearson, 1 Mason, 104.

A co-heir, or co-next-of-kin, is not a competent witness for another heir or next-of-kin, in a suit brought for an account of a trust fund erected for the benefit of all use heirs or next-of-kin. Wirt v. Randall et al. 2 Mason, 181.

The heirs of a deceased mortgagor are not competent witnesses, in a suit of equity, by an assignee, to redeem, to prove the assignment fraudulent; for it would be to establish their own right to the equity of redemption. Randall v. Phillips et el 3 Mason, 378.

The owner of a ship iS a cOmpetent witness for the assured, on a valued policy on goods. Ruan v. Gardner, 1 Wash. C. C. R. 145. 2 Cond. Marsh on Ins. 706.

So is the agent of the insured a witness, though the policy be in the name of the agent, where the suit is by the principal, and the witness, on the voir dire, swore he was not interested. Ibid.

K. and another, as the agents of W. and F., gave a note to C. for merchandise in which K. was interested; C. brought a suit on the note, alleging it to have been given by W. and F., by the procurement of their agents. It was agreed that whatever damages might be recovered in a suit brought by W. and F. should be set off against the note. The interest of K. in the event of the suits between W. and F., and C., is too remote to exclude him from being a witness: the objection goes to his credit and not to his competency. Willings et al. v. Consequa, 1 Peters’s C. C. R. 301.

The general rule, is that a party to the suit cannot be a witness. This rule is founded on the interest of the party, and when, that interest ceases, the objection is removed. Ibid.

A plaintiff in a cause may be examined as a witness, who had assigned his interest in the cause to his co-plaintiff, after the costs of the suit, as estimated by the clerk of the court, had been deposited with the clerk, and an offer made to pay the clerk any further sum which he or the defendant’s counsel might require to cover the costs; and a release, executed by the remaining plaintiff, of all claims on him for the costs which had or might accrue, and for any claims for contribution to any sum which the defendant might recover against those who executed the release, and also a covenant by the remaining plaintiffs to indemnify him against all costs, charges, and damages, which might accrue in prosecuting the suit. Ibid.

When a witness, by a voluntary act of his own, becomes interested in the case, he will still be compelled to give testimony; but the rule is different when the interest is occasioned by the act of the law, or of the party who requires the benefit of his evidence. Tatum's Executors v. Lofton et al. 1 Cooke, 115.

When a witness has been heard to say, in relation to his interest in the cause, shall not be given in evidence to prove him incompetent. Vining’s Lessee V. Wooten, 1 Cooke, 127.

A witness who has an equal interest each way is competent. Stump v. Roberts, 1 Cooke, 350.

A captain, made a party to the libel, but against whom no process has issued, is not an admissible witness for the owner in a suit for seamen’s wages. Malone v. Bell et al. 1 Adm. Decis. 139.

The master is personally liable for wages, though the seaman may proceed in rem against the ship, or in personam against the owner. It is his interest to throw the responsibility off himself; and he is not, therefore, a competent witness in suits for wages. Jones v. The Phoenix, 1 Adm. Decis, 201.

One seaman cannot be a witness for another, if the witness and the party have a common interest in the point in question. If the question be the loss of the ship, embezzlement equally affecting the whole crew, negligence, misfeasance or malfeasance, to which all must contribute in damages, one of the crew cannot be admitted as a witness for another. But where special circumstances distinguish cases, where one having made a similar contract with the other, the breach or performance whereof may happen without affecting the other,—where special indulgences are given to one, though not to the rest, one seaman may be a witness for another. Where seamen, are involved in similar breaches of contract, though the agreement of each is separate and independent, they are heard with caution; but this affects their credit, not their competency. Thompson v. The Philadelphia, 1 Adm. Decis. 210.

In a suit by a mate for his wages, the master is not a competent witness against him. The master is answerable to the owners for damages accruing to them by his improper and illegal discharge of mariners, as well as for extravagant wages given to or injurious contracts made with them. Atkyns v. Burrows, 1 Adm. Decis. 244.


When copies of records or papers are evidence.

2 Peters,’s Dig., 217, "Secondary Evidence."

A copy of the manifest certified under the hands and seals of the custom-house officers, and proved by a witness to have been by him compared with the record, is competent evidence in a criminal case. The United States v. Johns, 4 Dall. 412.

An exemplification of a law of a state legislature, under the great seal of the state, but not attested by the governor or any other principal officer of the state, is sufficiently authenticated to be given in evidence. The seal is in itself the highest test of its authenticity. Ibid.

Copies of the proceedings of a foreign prize court, are admissible in evidence, when certified under the seal of the court by the deputy registrar, whose official character is certified by the judge of the court, and that of the judge by a notary public; being a court of the law of nations, this in the proper mode of authenticating its proceedings. Yeaton v. Fry, 5 Cranch, 335.

A copy of a deed, certified by a clerk of a court, without the certificate of a presiding judge that the attestation of the clerk is in due form, and where the instrument was not required to be recorded, is not evidence. Drummond’s Administrators v. Magruder's Trustees, 9 Cranch, 122.

A notarial copy of a note, alleged to be lost, was permitted to go to the jury, as a fair ground for presuming, when taken in connexion with other testimony, that the paper exhibited to the notary was the same which the witness had had in his possession, and acknowledged by defendant. Peabody v. Denton et al. 2 Gallis, 351.

A paper certified to be a true copy by a notary, is inadmissible, unless it appears that he has charge of the original, and has authority to authenticate transcripis. Talcot v. The Delaware Insurance Company, 2 Wash. C. C. R. 449.


Source: Condensed Reports of Cases in The Supreme Court of the United States Containing the Whole Series of the Decisions of the Court from its Organization to the Commencement of Peters's Reports at January Term, 1827, with Copious Notes of Parallel Cases in the Supreme and Circuit Courts of the United States, Edited by Richard Peters, Counsellor at Law and Reporter of the Decisions of the Supreme Court of the United States. Second Edition in Six Volumes, Vol. II. Philadelphia: Thomas, Cowperthwait & Co, No. 253 Market Street, 1841