Page:United States Reports, Volume 1.djvu/328

Rh 

1788.

Dallas moved to quafh the execution–Bankʃon and Healty oppofed it.

And, by :–After appeal and fecurity given, the Juftice cannot iffue an execution againft the original Defendant, but muft proceed againft the bail upon the recognizance. Therefore let the proceedings of the Juftice be fet afide, as far as refpects the execution, with cofts. 

HIS was an action upon a Policy of Infurance on the Brig La Catiche ; and the circumftances of the cafe, as far as they refpect the decifion of the Court, were thefe:–

The Brig having fuftained confiderable damage by a ftorm, the Captain, who was alfo a part owner, was compelled to deviate from his proper voyage, and, accordingly, bore away for Cape Francois. When he arrived there, on the 28th oƒ Auguʃt, 1784, he delivered a proces verbal (which had been drawn up at fea, recently after the ftorm)  into the Admiralty,  in order to obtain a furvey of the veffel ; but this inftrument was merely a relation of facts, unattefted by the oath of the Captain, or any of the Mariners, who had fubfcribed it as witneffes. A copy of it being afterwards, however, brought to Philadelphia, the Captain alone, on the 4th oƒ December 1784, went before a Notary Public of this city, and in form of a proteft, fwore to the authenticity of the copy, and the truth of its contents.

When the prefent action was inftituted, a commiffion iffued to obtain a tranfcript of the proceedings in the Admiralty of Cape Francois ; and the proces verbal being returned with the other official documents, certified by the Judge under the feal of that Court, the Plaintiff's council at the trial, which came on the 4th of July,  offered to read it in evidence to the Jury.

But, it was objected, by the other fide, that the proces verbal, taken by itfelf, was not admiffible as evidence, becaufe it had not been rendered upon oath ; and that, even connecting it with the fubfequent proteft at Philadelphia, it ought, neverthelefs, to be rejected ; becaufe no proteft is valid to this purpofe, that has not been made at the firft port in which the Captain arrives after a misfortune had happened to his veffel. See Woʃtcote 432. 1 Mag. 87. Beaves 140.

The Plaintiff's counfel, in reply, obferved, that although the ftrict formalities required in this country, had not been purfued, yet if the proceeding was conformably to the lex loci it ought to be received. They contended, therefore, that as the proces verbal was lodged in a competent office, and is duly certified under the feal of the Admiralty, this Court, in refpect to a foreign jurifdiction, is bound to prefume that it was regularly taken according to the laws of France. Befides, the rule in regard to all exemplifications, rendered