#### Robert Rankin and John Rankin versus The American Insurance Company of New-York.

April Term, 1829.

Although usage may be resorted to, to fix the sense of particular terms, in a policy of insurance, where they have acquired a peculiar meaning, as between assurers and assured, yet, it can never be set up, to affect or vary an express agreement, nor to contradict a rule of law.

Therefore, in an action, upon a policy of insurance, where the claim was for damage ' sustained by the perils of the sea, and on the arrival of the goods at New-York, they were landed, before the wardens of the port had held a survey upon them$ the defendants were not allowed to prove, either as an objection to the preliminary proofs, or in bar of the action, that “ by the usage of trade, in the port of *“*New-York, the master of the vessel, is responsible for damages sustained by “ goods, delivered by him to the owner, or consignee, unless there has been an “ actual survey, on board the vessel, by the port wardens, by which it shall have “been found, that the . goods were properly stowed, and were damaged on the K voyage by the perils of the sea ; and that, by a similar usage as between as- “ suers and assured, the survey so made is a document indispensable to be produced, in order to charge the underwriters, and that the preliminary proof is “ deemed insufficient, unless such a document is exhibited as a part ofit.”

A stevedore, employed by the master to stow the cargo, is a competent witness to prAe that it was properly stowed.

This was an action upon a policy of insurance, made *by the*defendant, on account of-, bearing date the 14th of September, 1825, on merchandise ; each package of which, not excepted in the memorandum, was to be subject to its own averages bs if separately insured. The goods were to be shipped prior to *620the first of April, 1826, on board of any vessel or vessels from Liverpool, or London, to New-York, and the sum subscribed to the p0pCy wag $30,000.

The cause was tried before the Chief Justice, and at tbe trial, the plaintiffs produced the same preliminary proofs, whichthey had previously (and within a proper period) exhibited to the defendants. These consisted,

I. Of a bill of lading, in tbe ordinary form, of three packages of merchandise, containing skivers , shipped by William and James Brown & Co., at Liverpool, and consigned to John Rankin, at New-York. II. An invoice of those articles.

HI; An affidavit madé by the first mate of the ship Corinthian, in which the goods were imported, setting forth, that the cargo of that vessel, was well and sufficiently stowed at Liverpool, by a competent stevedore, and that, if any damage came to any part of the goods on board, it must have arisen from causes not to be attributed to the ship, or the stowage of her cargo.

IV. A certificate signed by George G. Coffin, master warden of the port of New-York, and the clerk of tbe board of wardens of that port, setting forth that two of the wardens, at the request of Mr John Rankin, “ *had been in store*and taken a strict and careful “survey” of three cases of merchandise, imported in-the Corinthian, and damaged *by being wet with sea-water,*on tbe voyage of importation. The certificate then set forth, that the goods had been sold at public vendue, under the inspection of one of the wardens of the port, for the sum of four hundred and forty dollars.

V. A protest made on the 7th of February, 1826, by a notary in New-York, upon the testimony of the master, mate and steward of the Corinthian, setting forth the departure of that vessel"from Liverpool, with her cargo-on board, on the 30th of November, 1825 -; that she encountered much bad weather on her voyage, shipped many seas, and'was much strained.

VI. An appraisement of;the articles, shewing that they would have been worth, in a sound state, nine hundred and sixty dollars.

*621VII. A statement of the claim for loss, exhibited to the defendants on the 4th of February, 1826, by John Rankin. VIII. acc'int of the sales of the damaged articles. IX. Proof of interest in the plaintiffs. X. The policy as herein before set forth.

When these preliminary proofs, were originally presented to the defendants, they refused to pay the loss, upon the ground that they were defective : and their counsel at the trial objected to their sufficiency, first, beca use there was no evidence to show that the goods *had not been injured previously*to their being laden. Secondly, because there was no proof to show that the goods had been properly stowed; and thirdly, because ther was no evidence to show, that the goods had been examined and surveyed on board of the vessel after her arrival at New-York, and before their delivery to the consignee.

In support of the last objection, the counsel for the defendants offered to prove, that by the established usage of trade in the port of New-York, and in other ports, the master of the vessel is, in all cases, responsible for any damage sustained by the goods delivered by him to the owner or consignee, unless there has “ been an actual survey made on board the vessel, by the war- *“*dens of the port, or other officers, and, on such survey, the sur veyors shall have found that the goods were properly stowed, and were damaged on the voyage by the perils of the sea. That‘ by a similar usage, as between the assurers and the assured, the survey, so made by the wardens, is a document indispens able to be produced, in order to charge the underwriters, and that the preliminary proof is deemed insufficient, unless such document be exhibited as a part of it.”

The presiding Judge rejected the evidence so offered, and decided that the preliminary proofs were sufficient. To this opinion the counsel for the defendants excepted.

The plaintiffs then introduced their evidence in chief, and among other testimony, read the deposition of one *William Guin,*the stevedore who stowed the cargo of the Corinthian at Liverpool, and who testified, as to the condition of the cargo, when it was shipped, and as to the manner in which it was stowed. The counsel for the defendants objected to the testimony of Guin, *622Pon the ground, that he would be liable for any damage, arising the bad stowage of the cargo: that his evidence, as it , , . . ,. , , . „ tended to charge the underwriters* would discharge himself from ch liability, and that he was, therefore, interested in the event of the suit.

This objection was overruled by the Judge, and his opinion excepted to by the counsel for the defendants.

The plaintiffs then introduced the depositions of several persons examined at Liverpool and Manchester, under a commission issued for that purpose* and called witnesses also to show the condition of the packages in question, at the time of the importation.

From the evidence, obtained in England, it appeared, that the goods were purchased by the plaintiffs at Manchester, and forwarded from thence to Liverpool in boats, in the usual mode, to be there shipped. It was proved that the articles were in perfect order, when packed at Manchester, and their external appearance at Liverpool did not indicate that any injury had happened to them, on their passage to that place, from Manchester. They were not particularly examined at Liverpool, and the witnesses woiild not take it upon themselves to say, that the goods could not have been damaged, before they were shipped at that port. The stevedore and others testified, that the cargo of the Corinthian was properly stowed, and that there was no appearance of any injury to the packages, at the time of their shipment. It further appeared, that the vessel encountered much tempestuous weather on her passage, and that other parts of her cargo were damaged. When the packages were landed at New-York, there was no external appearance of injury, but upon their being opened, the damage was immediately visible. The goods were much spotted, and the injury appeared to have been produced by dampness.

One of the wardens of the port of New-York testified, that he, together with another warden, examined the goods in question, after their arrival *in*the store of the plaintiffs, and at their request, on the 21st of January, 1826. After a survey, they reported to the wardens’ office, that they were damaged on the voyage of im*623portation, but they did *not*report, that they were damaged *by seawater,*as the certificate showed, and the witness supposed that the injury was occasioned by moisture, produced by exhalations from water in the vessel. The survey was made for the-purpose of procuring a remission of duties, and the cause of damage was not, therefore, accurately ascertained by the wardens.

The plaintiffs also produced other testimony to the same point, which, although it did not demonstrate that the goods were *not*damaged *before*their shipment at Liverpool, was yet sufficient to allow the jury to draw the inference, that the injury was sustained *after*the shipment, on the voyage of importation, and from the perils of the sea.

On this state of facts, the counsel for the defendants moved for a non-suit, upon the ground, that the plaintiffs had not made out *a case of loss by the perils of the sea.*This motion being denied, an exception was taken to the opinion of the Judge.

The counsel for the defendants then offered to prove, *in bar of a recovery,*on the part of the plaintiffs, *the same general usage of*trade, which they had before offered to prove in support of their objections to the sufficiency of the preliminary proofs.

The Judge decided, that the evidence so offered was admissible and might be received, as matter proper for the jury, in determing the question as to the stowage of the goods on board the vessel, or their condition at the time they were shipped or delivered, or the want of good faith on the part of the master, or other persons, on board the vessel. but that, if the fact of such usage should be established, the departure from it in this instance, was not a conclusive bar to the plaintiffs’ right of action.

The counsel for the defendants declared, that they offered the proof of such usage solely as a *bar*to the right of action, on the part of the plaintiffs, and not for the purpose, for which it had been ruled by the Judge to be admissible.

The evidence, under this view of the case, being overruled, the counsel for the defendants again excepted to the decision of the Judge. The cause was then submitted to the jury, who found a verdict for .the plaintiffs.

*624
      *Mr. J. Duer,*on the part of the defendants,

now moved for a new trial, and contended, that the parol evidence of usage should jiave ]3een received. If not admissible to show the insufficiency preliminary proofs, it ought to have been received in bar of the action. The objection is, that such proof would vary the terms of the written contract. But usagé of trade may be proved, for the purpose of giving *a construction*to the Contract, and even to fix upon it a meaning different from that which the words would otherwise import. The parol proof, in such cases, does not *vary*the contract: it only explains it, and shows the sense in which the terms are used. *[2 Salk.*443. *2 Doug.*510. 1 *Ves. Sen. 457. Robertson v. French, 4 East.*135. *Coit v. Com. Ins. Co., 7 Johns. Rep.*387. 7*Cow. Rep. 202. Phil. on In.*14. 487. *2 Marsh on In. 707.*3 *Stark. Ev.*1034 *and*5.]

The usage, which the defendants offered to prove, was reasonable in itself, and is not opposed by any suggestions of policy. In cases of damage to goods on their voyage, the master and owner of the vessel ar *e,prima facie,*liable for the injury, from the terms of the bill of lading. What ought the proof to be which is to discharge them from this liability ? Not such evidence as was offered at the trial; for if that be sufficient, the master will never lack the means of defending himself against every attempt to make him responsible.

The usage in question does not prevail, perhaps, in foreign ports, although there are others analagous to it. But if it prevails here, it is sufficient; for the contract was made where the usage obtains, and in reference to it. Besides this, the usage is recognized by the statutes which establish wardens of the port. [2 *R. L.*459. *vol. 5,*11 a. *p. 42, ch.*18.] The act points out the duties of the wardens, and directs that damaged goods shall be sold under their care. If the usage were not founded in justice and good sense, it would not continue ; and when a mercantile contract is made at a place where an established usage prevails, having reference to the subject of the contract, the law considers the usage in some cases as part of the contract, and, at all events, the contract is *625subordinate to the usage. So in this case, there was an existing usage, well known to the plaintiffs, which they might have complied with, without injury to themselves, and in a manner which would have given satisfaction to all parties. But it has been . „ , wholly disregarded by the plaintiffs, and they have thus voluntarily deprived themselves of the evidence, which the law requires to establish their claim.

II. The deposition of *William Guin,*the stevedore at Liverpool, ought not to have been read in evidence, because the witness had a direct interest in the event of the suit. He was the only witness who testified that the cargo was well stowed, and although he may not be *prejudiced*by the result of *this*action, yet, if the defendants prevail, and an action were brought against the master upon the bill of lading, and a recovery were had against *him,*the stevedore would be liable over to the master. But if the plaintiffs prevail, then there can be no action against the master, for this recovery-will be conclusive in his favour. The stevedore, therefore, is directly interested in the event of the suit. *[5 Bos.*& *Pul.*374, *Simmonds v. Delacour.]*There are cases, it is true, where an agent may be called as a witness from necessity; but where the same facts may be proved by other persons, then the agent is not an admissible witness. An agent can never *be*called to disprove his own imputed negligence, neither can the master of a vessel be permitted to disprove barratry. [3 *Stark. on Ev.*1184. *Ib. part*4, 768, *and note; also, p.*1730 *of same book.]*

In this case, the record of recovery against the insurers would be conclusive in favour of the stevedore, if an action were to be brought against him by the master for negligence; and he was not called from necessity, for the same facts might have been proved by other witnesses, or by a survey. A witness can never be called to prove his own diligence, and yet this stevedore was produced for the express purpose of showing, that he discharged his own duty with fidelity and skill. He was not competent by the roles of evidence, and his deposition ought not to have been read to the jury.

*626III. The plaintiffs did not produce the best evidence attainable to establish the loss, and that which was adduced, did not *affirmatively*show it: the motion for a non-suit ought, therefore, to have been granted.

There is no better rule of evidence, and none better established, than that the party shall produce the best evidence in his power. If the party has better evidence, and refuses to produce it, the inference is, that the evidence, if produced, would be against him. Here the plaintiffs called a seaman to prove that the vessel encountered bad weather, but it is not pretended that the injury arose from this cause. Why did they not discharge the master and call him, or why did they not call the mates and seamen, to show the actual condition of the goods, both at the time of shipment and at the time of delivery *1*

True it is, evidence was produced from Manchester and Liverpool, to show, *that so far as the witnesses knew,*the goods were shipped in good order at Liverpool. But these witnesses could only say, that the goods, when they arrived at Liverpool, were, to all *external appearance,*in good order. But that proved nothing; for the packages were not externally injured when they arrived in New-York. The plaintiffs were bound, therefore, to show, not only that the goods were properly packed at Manchester, but that they were safely transported to Liverpool. Not having done this, the inference is, that the goods were damaged *on*their passage *from*Manchester to Liverpool, or before their shipment on board the vessel.

The evidence, surely, was not sufficient to charge the master, and the plaintiffs were bound to produce, at least, as much evidence against the defendants as would have been sufficient to render the master liable. The verdict is not, therefore, sustained by the proof, and upon every principle, there ought to be a new trial.

But the plaintiffs were bound, at all events, to produce the certificate of a survey *on board the vessel*by the wardens, among their preliminary proofs, and in this respect they were fatally defective.

*627
      *Mr. Slosson,*for the plaintiffs, contra,

contended, that the preliminary proof of loss was sufficient. The sufficiency of evidence, is a question of law for.the Judge; and proof as to the existence of a usage, v hiv h could only he tried as a fact by the *n*jury, was clearly inadmissible. [11 *Johns. R.*259. 9 *Ib.*192, *Phil. on In.*498.]

Preliminary proof is merely reasonable information, given at the time of the loss, and before the proofs in chief can be obtained. It is furnished for the purpose of putting the defendants upon enquiry, so that they may decide, whether to pay within the thirty days or not. The defendants can never offer facts to the Judge, to contradict the preliminary proof, because such facts are always evidence in chief, to be submitted to the jury. *[Haff v. The Col. Ins. Co.]*If the defendants are right, the plaintiffs never can recover, because the survey was not held on board the vessel, and, of course, their preliminary proofs must forever remain in-, sufficient.

II. The usage which the defendants offered to prove, was inadmissible to control or defeat the express contract between the parities.

The jury have found, from the evidence before them, that the goods insured were injured by the perils of the sea, and the defendants now seek to vary the terms of their own agreement, by proving a usage which is to control it. They seek to incorporate it into the contract. But the usage contradicts the *contract; it*alters it in its most essential features; it makes a new proviso. Is the right of the plaintiffs to recover, to depend upon a certificate of the wardens of the port of New-York, over whom they have no control,—and that too in relation to facts which are not, and cannot be, within their personal knowledge *1*

It is a fixed rule of law, that nothing can be introduced into this solemn instrument, which the parties have not themselves put there, in express terms. Under the rotten clause, the survey is incorporated into the policy by express agreement; but here it is sought to bring, *by custom,*a new proviso into a written contract, and, in fact, to change the agreement entirely.

*628But the consequences to which this must lead, are not to be overlooked ; for the usage, if it can discharge the defendants, must be extensive enough to charge the master. This cannot be. [10 *Mass. R.*26, *Homer v. Dorr.*2 *Johns. R.*335, *Frith v. Barker.]*

Usage, if it exist, may well apply to the *mode*in which a contract is to be performed. As for instance: to depart with convoy, to stop at the usual ports for refreshments, &c. But in *these*cases the usage is not brought in *to explain*the contract, or the manner of its performance ; but it establishes the proof which the plaintiff must produce before he can recover. No case can be found to sustain this demand.

The proof of the usage is not only illegal, but the *usage itself*is wholly unreasonable. In what manner are the rights of the plaintiffs to be concluded *1*By the acts of a third person 1 The *omission*of the *Master*to call a survey on board his ship, is to defeat the. right of the plaintiffs to recover against the underwriters!

Suppose the wardens had certified that the goods were *not*damaged on the voyage of importation, and that they were improperly stowed,—could that certificate have concluded the plaintiffs *1*The defendants have agreed, that if damage be sustained by the plaintiffs, they will indemnify them. The plaintiffs have a right *to prove*that damage in their own way, to the satisfaction of the proper tribunals, It such a certificate had been presented among the preliminary proofs, it would not have debarred the plaintiffs from recovering under their proofs in chief.

Suppose the certificate had been in favour of the plaintiffs— would that have concluded the *defendants 1*The rights of no man can be concluded before he has had an opportunity to be heard. *[The Mary,*9 *Cranch.*136, 142. 15 *Johns. R.*140. 1 *Stark. on Ev. pt.*1. *Sec.*70, 72, *p.*96.]

Among the proofs in chief, the Judge offered to receive the evidence for every purpose, extept as a conclusive bar to the action. The defendants declined this offer, and' we are brought to the naked point, whether this usage, if proved, be not. a bar to the action. [Hoffman, J. Can any case be found to sustain this position*? Slosson.*Not one.]

*629The want of a protest is never a bar: it is proper evidence to show neglect or want of good faith, but it lias never been eonsidered as any thing more than evidence for I be jury. Where the parties, by express agreement, substitute the wardens’ survey for all other proof, it may be binding, but otherwise it cannot be.

III. The testimony of Guin, the stevedore, was properly admitted, as well on the ground of necessity, as because ,the verdict in this cause could not be evidence for or against him. He was employed by the master, and was, as to the owners, a sub-agent. The owners could not sue him, but their remedy would be against the master.

The plaintiffs were not bound to show, that the cargo was properly stowed : that will be presumed in the first instance ; but being willing to support the affirmative, they called the person who best knew in what condition the cargo was. The witness had no interest even in the question, and, *a fortiori,*he had none in the *event*of the suit.

The rule upon this subject, as laid down in the 3d of *Johns. Cas.*(82,) and in the 14t.h *Johns. Rep.*(79,) is well established on principle ; and the verdict in this case could not be given in evidence in another suit against the witness, either as to the fact of negligence, or as to the quantum of damages : neither would the success of the plaintiffs, in this cause, be evidence in his fa-four, especially when procured by his own testimony. If he were sued by the master, this record could not be evidence against him, for he is neither party nor privy. This is an action of *assumpsit;*that would be in *tort,*for negligence. It is an acknowledged p ineiple, that no verdict can be given in evidence *against*a party unless it might also be given in evidence *for*him: and here it will not be pretended, that this verdict could be evidence in favour of the witness.

But the witness is, at all evenst, competent from necessity. [2 *Stark. pt.*4, 767.] He was a mere agent, for a specific purpose ; so is the master, so are the mates, and so are the seamen. The same rule, which will exclude one will exclude all, and the plaintiffs might thus be deprived of every witness; for each agent *630is responsible, in some degree. The quantum of interest, cannot vary the rule, and the witness is admissible upon the clearest principles of evidence.

[Hoffman, J. It is the common practice to call the stevedores, ^ , *,*. , n to show the manner m which the cargo is stowed.]

IV. There was sufficient proof, to show affirmatively, that the injury to the goods arose from sea dan age, and the jury were competent to weigh all the circumstances tending to establish that fact. The goods were packed in perfect order, at *Manchester;*they were forwarded to Liverpool, by the ordinary passage boats, and received there, apparently, in good condition. The vessel in which they were shipped, encountered bad weather on her passage, and other parts of her cargo were damaged by salt water. The inference is irresistible, therefore, that these goods were damaged on the voyage of importation. At all events, the tribunal most competent to decide this question, has put it at rest by their verdict; and in the absence of all evidence on the part of the defendants, this court will not disturb the decision.

*Mr. Duer,*in reply.

If the contract implied by the usage, would be valid when inserted in the policy, then it is also valid if the usage can be clearly proved. The contract is made in reference to the usage, which is within the knowledge of both parties, and it is considered by the law as if it were incorporated into the written agreement. It is a part of the contract, and the parties, in contemplation of law, had the usage in view when the policy was executed. It is, therefore, available to the defendants, in the same manner in which it would be, were the usage expressly referred to by the terms of the agreement.

It is said by the counsel for tire plaintiffs, that it is unreasonable to require, that the evidence of sea damage should be produced by third persons, who may withhold it. But the argument proves too much ; for the same objection would apply to the preliminary proofs, and yet there can be no cause of action until these are made satisfactory to the Judge. There is no hardship in requiring that the goods should be left on board the ship, until a survey could be held ; and, if they are removed before that can take *631place, the removal is tantamount to a declaration, that they are free from sea damage.

As to the evidence of the stevedore, the effect of a verdict in favour of the plaintiffs, would be to discharge him from his liability. It would prove that the goods were well stowed, and the defendants could maintain no action against him. As an agent is admitted as a witness only from necessity, take away that necessity, and he becomes incompetent. Here there was no necessity for calling the stevedore, and his testimony ought to have been rejected.

Oakley, J.

This was an action on a policy of insurance on goods shipped from Liverpool to New-York. The claim was for damage sustained by the perils of the sea. On the arrival of the ship at New-York, the goods in question were landed before the wardens of the port had held a survey upon them.

At the trial, an objection was made, that the preliminary proofs were insufficient, because such a survey was not shown ; and in support of the objection, the defendants offered to prove, that “ by the usage of trade of this port and other ports, the master “ of the vessel is, in all cases, responsible for any damage sustain- “ ed by goods delivered by him to the owner or consignee, unless *“*there has been an actual survey on board the vessel by the port wardens, by which it shall have been found, that the goods “ were properly stowed, and were damaged on the voyage by the *“*perils of the sea; and that by a similar usage, as between assur- *“*ers and assured, the survey so made, is a document indispensible to be produced, in order to charge the underwriters: and “ that the preliminary proof is deemed insufficient, unless such a *“*document is exhibited as a part of it.”

The Judge overruled this objection, and held the preliminary proofs to be sufficient, and, I think, correctly.

The clause in marine policies, requiring preliminary proof of interest and loss, has always been liberally expounded, and is construed to require only the best evidence of the facts possessed by the party at the time. *[Barker v. Phœnix Ins. Co. 8 Johns. R.*317. *Lawrence v. Ocean Ins. Co.*11 *Johns. R.*260.] *The siifli*
      *632
      *dency*of it, is always a question of law, to be determined by the Judge at the trial; and no evidence can be then received to alter the character or effect of the proofs exhibited to the defendants.

In the present case, the Judge was called upon to hear evidence of a usage controlling the construction of the policy, so as to render necessary the production of a particular document as a part of the preliminary proofs. If such evidence had been admitted, counter evidence on the part of the plaintiffs, to repel the usage, must have been gone into; and thus the Judge would have been drawn into the trial of a fact, instead of confining himself to the decision of the law, as arising upon the state of the pro *of,*as exhibited by the plaintiffs. This, in my judgment, is clearly inadmissible.

The usage in question, if it could avail the defendants at all, would be a bar to the plaintiffs’ right of *action;*and in this view, it was also offered to bé proved at the trial. The Judge again properly rejected it.

The rule as to the admission of usage, to control the construction of a policy, seems to be, that it may be resorted to, to fix the sense of particular terms in the instrument, where they have acquired a peculiar meaning, as between the assurers and assured. *[Coit v. Com. In. Co. 7 Johns. R.*389.] In this light, its effect is not to alter the contract of the parties, but merely to ascertain what that contract is. But it is well settled, that a usage can never be set up to affect or vary an express agreement; nor to contradict a rule of law. *[Frith v. Barker, 2 Johns. R.*335. *Homer v. Dorr,*10*Mass. R. 26. Phil. on In.*17, 18.]

By the terms of the policy in the present case, the defendants bound themselves to pay all damage to the property insured, arising from the perils of the sea: and the attempt now made, is to introduce into the contract a condition, that they shall not be responsible, unless such damage is ascertained in a particular mode, and that, too, by the act of third persons, over whom the assured have no control. Such a condition would, in my judginent, vary the legal obligations of the defendants, as ascertained by the plain language of the policy. It would be creating a con*633dition precedent to the plaintiffs’ right of recovery, where the contract itself expresses none.

The usage in question, is also, in my judgment, unreasonable. The survey, when produced, is not to conclude either party, as to any fact stated in it. It is not to be evidence on the trial, even *prima facie,*for or against either party. The non-production of it is to be fatal to the plaintiffs’ action; but when produced, it is to prove nothing.

An objection was also taken at the trial by the defendants to the competency of the witness, *Guin.*He was the stevedore employed by the master to load the vessel at Liverpool, and was examined to prove that the cargo was properly stowed. It is contended, that he was interested to support the plaintiffs’ right of recovery.

The general rule on this subject, as laid down by the Supreme Court, is, that “ if a witness will not gain or lose by the event of *“*the cause, or if the verdict cannot be given in evidence for or “ against him, in another suit, the objection goes to his credit “ only, and not to his competency.” [ *Van Nuys v. Terhune,*3 *Johns. Ca*83. *Case v. Reeve,*14 *J. R.*81.]

The witness, in the present case, is clearly not excluded by this rule. He gains or loses nothing by the event of this suit, nor can the plaintiffs’ recovery release him from his responsibility for any negligence committed by him, as the agent of the master. Nor can the verdict or judgment in this cause be given as evidence, in any action against, him, either to establish the fact of such negligence, or to ascertain the amount of damages. “ It is a “ general, if not universal, principle, that a suit between two per- “ sons, shall not bind or affect a third person, who could not be “ admitted to make a defence, to examine witnesses, or to appeal “ from the judgment.” [Case *v. Reeve,*14 *J. R.*81.] A verdict or judgment in an action, is evidence in another, only for or against privies in blood, or estate, or in law. [Ibid.] The witness in the present case is neither. He was merely an agent of the master, and as such, is competent to testify as to all matters in the ordinary course of his agency. [2 *Starkie on Ev.*767.]

*634If the action had been directly against the master for negligence in the loading of the vessel, his immediate agent in the performance of that work, would not have been a competent witness for him, without a release; for, in case of a recovery against , , . , _ ... . . him, the verdict might be given m evidence against the agent, to ascertain the amount of damages. [*Green v. The New River Company,*4 *T. R.*590. *Case v. Reeve,*14 J. 82.] Here the master is no party to the suit, and the fact of negligence, in the loading of the cargo, is not directly in issue. The witness, in my judgment, was properly admitted.

An objection was also taken, that the evidence did not support the plaintiffs’ right of action; but there was some proof of damage to the goods, by the perils of the sea, and it was properly-submitted. to the jury, who were the proper judges of its sufficiency.

*Motion for new trial*denied.