Supreme Court of United States.
*423 Ingersoll and Rawle, for the plaintiff.
E. Tilghman and Dallas, for the defendants.
WASHINGTON, Justice.
Though the case involves points of some novelty, and of considerable difficulty we have so far satisfied our minds, that we will not request the jury, to reserve any *424 thing for future consideration, although either party is at liberty to move for a new trial.
The first and principal difficulty is, whether Crucet has proved his interest in the subject insured, by proper evidence. The record of a court of admiralty is always evidence to prove a condemnation; but, certainly, in cases between the insurer and insured, it is only evidence, according to the general rule, to prove the cause of condemnation. On the present occasion, however, the record was read to the jury without opposition; and, on this ground alone, we decide it to be an exception to the rule. For, if the objection had been made, the plaintiff would have enjoyed an opportunity to supply the proof by other means.
The record is, therefore, considered as proof of facts, so far as it exhibits documents, which, if now produced, would be evidence in the cause. This still excludes, on the one hand, letters written by Crucet; while, on the other hand, it admits those papers, authenticated by other sources, that show the extent of his advances, the nature of his engagements, and the lien which he acquired upon the ship and cargo.
Upon the evidence, thus admitted, Crucet appears clearly to have acquired a contingent interest in the property; but it was, at first, a question of great doubt with us, whether it was an insurable interest. As to his actual advances of money, there could be no doubt, provided there was (as there is not) satisfactory evidence on that point, independent of what proceeds from himself. But to the right of insurance, the obligation of abandonment, in case of loss, would seem to be an inseparable incident; and we doubted, whether Crucet had any thing in the property, which he could abandon upon a loss, and, of course, which he was entitled to insure. On reflection, however, we conclude, that, upon an abandonment, the underwriters acquire all Crucet's rights and remedies against the British owners: And, as to the manner of insuring his interest, it is clear, that a person having a lien upon a cargo, may cover it by an insurance on goods.
It is true, that the assured should communicate to the underwriter, the nature of his interest in the subject insured, though it need not be specified in the policy; and, on this ground, a question of fact arises, for the consideration of the jury. If the insurance of the special interest, and not of the principal ownership, made a material difference in the risque, or would have altered the amount of the premium; and the fact was not sufficiently disclosed to the defendants, the omission would vacate the policy.
After this view of the case, it only remains to inquire, whether a loss has happened, which entitles the plaintiff to recover? He has lost his possession: and although we will not decide, whether the capture and sentence have destroyed his lien; we think, that as they have rendered it necessary to pursue the property, through *425 an expensive, troublesome, and doubtful, medium; he has a right to consider the occurrence as a total loss, and to recover the amount of the insurance.
Verdict for the plaintiff.[(1)]
[(1)] A motion was afterwards made for a new trial, on the single ground, that there was no proof of property in the plaintiff, except the ship's papers, spread upon the record of the court of vice-admiralty. An affidavit was filed, stating that Mr. Ingersoll had applied to Mr. Dallas, before the jury were sworn, to admit the record as proof of property, which was refused; and that the application of the record to that purpose (after it had been read) was opposed, as soon as it was attempted. But the motion was rejected, as Judge WASHINGTON adhered to the opinion delivered in the charge, and Judge PETERS said, that he had decided as well on that ground, as on the corroborative evidence, arising from the sameness of the documents found in the ship, and those described in the communications to the defendants, when the insurance was effected.
