excluded. If called by the defendant, with whom it could rarely happen but that he should have some community of interest, at any rate, of feeling, he is admitted: To exculpate the defendants, admitted, to inculpate, refused. Will your testimony be for the plaintiff or defendant? As the witness may answer, he is admissible or not.

1

Although the defendant, when defaulted, is, in torts, received to aid his co-defendants, yet in contracts the law is different. Lord Kenyon assigns as a reason for this distinction that he might negative the contract, and that if negatived as to one, it fails as to the other; which, being interpreted, signifies, that the plaintiff has no case; that if the evidence of this defendant should be heard, it would so appear; therefore they take special care that it shall not appear. So far from showing the propriety of rejecting, it shows most forcibly the necessity of admission. Here the admission depends not so much upon the person calling, for even the defendant cannot obtain the testimony in this case, but upon the words in which the writ happens. to be couched—if trespass, the witness is heard—if assumpsit, refused. Nor do distinctions end here. Had the name of this co-defendant not been inserted in the writ, or, being inserted, had he been fortunate enough to escape the service, he would have been received.2

In the exceptions noticed, the party is introduced at his instance, or to save his own interest. In NO ONE INSTANCE at common law is the party compelled to answer, if unwilling. The exceptions are all of the most dangerous description, and if proper, what becomes of the rule? If the party can with safety be received under the most dangerous circumstances, if indeed his evidence is necessary under those circumstances, why should he ever be excluded?

But to what purpose wander, without a clue, through the Dædalion labyrinth of the common law? Bad rules being established, the oftener they are violated the better. The rule and the exceptions cannot stand together. The sooner it is determined which shall predominate, the better.

11 Phil. Ev. 63.

son.

2 1 Pick. Rep. 121, Gibbs v. Bryant; 2 Pet. Rep. 186, Le Roy v. JohnIn the latter cases releases might have been necessary. But cannot a man, whose name is in a writ, sign a release, as well as any body else? VOL. VIII.-NO. XV.

6

So much for the pure and tried reason1 of the common law. How much preferable may be equity, remains for further consideration.

ART. II.-INSURANCE-CASE OF COLLISION.

A question is proposed arising on the following case :

On the arrival of the ship Grecian at Hamburg, with a pilot on board, as there was not room, as the pilot supposed, to pass outside of the vessels, and between them and the southern bank of the river, he proposed to pass through a narrow space, left in the channel of the river, among the vessels lying at anchor, in such a manner, as to leave two brigs on the right. The vessel passed the first of these brigs; the pilot then ordered to let go the anchor to avoid running on shore, or against the other brig. While, however, they were endeavoring, in this manner, to keep clear of the brig and the shore, the ship, swinging on her anchor, run foul of a lighter,' loaded with sugar and sunk it, whereby the boat and its load were totally lost. The Grecian sustained no damage. The case does not suppose any blame either on the part of the men on board of the lighter, or the pilot or the captain or crew of the Grecian. According to the laws of Hamburg, the damage thus occasioned must be contributed for by the two vessels and cargoes; each vessel and its cargo, bearing one half of the damage. In the present case, in pursuance of the decision of the tribunal at Hamburg, the loss was equally apportioned between the ship and her cargo, that is, it was decreed that the ship Grecian should pay one quarter of the injury done, and the cargo another quarter, making one half of the value of the lighter and its load; the loss of the other half to be borne by the owners of the lighter and of the sugars lost. Before the case was decided, at Hamburg, the consignees of the Grecian and her cargo wrote to the owners, that they hoped to have the loss, that is, half of the value of the boat and its load, apportioned on the ship and cargo, as a general average according to the value of each. In case of its having been so

1 Plowden.

contributed for, the contribution on account of the ship would have been inconsiderable, as she had a valuable cargo.

The question is, whether the underwriters on the ship in Boston, are liable for the amount or any part of the amount so paid?

It was a rule of the Roman Law, that in case of collision without fault on either side, each party must sustain his own damage. Such is also the law of England and the United States. But at Hamburg, as appears from the present case, the damage is apportioned between the two vessels. Such is the provision of the laws of Oleron, ch. 14. And it appears to be incorporated into most, if not all, of the maritime codes of the continent of Europe. The rule applies only to cases, in which there is no fault on either side, for if the damage be occasioned by the negligence of either party, the laws of all countries agree that the party in fault shall make good the damage.

This rule for apportioning the damage is not, however, uniform. Valin discusses its particular construction and application at some length in his commentaries on the marine ordinance of Lewis 14th. One question made is, whether damage done to the cargo by such collision, shall be apportioned. Another question, under at least some of the maritime codes, is, whether the cargoes of the two vessels shall be brought into the contribution. It appears to have been a subject of discussion before the marine court of Hamburg, in this very case, what proportion of the damage should be contributed for by the cargo of the Grecian and what proportion by the ship. The rule, therefore, appears not to have any very precise and uniform construction and application at Hamburg, but to be subject to a pretty full exercise of discretion, on the part of the tribunal having jurisdiction.

The argument urged in favor of the liability of the underwriters to indemnify the assured in this case, is, that if the insured vessel had been the one injured by the collision, then by the law of Hamburg, as applied in this case, the other vessel and cargo must have made good one half of the damage, and accordingly the insurers of the American vessel and cargo, would, by the operation of the Hamburg law, have been exonerated from one half of the loss, to which they would by our own laws

have been liable. If the damage were but nine per cent. on the value, and one half of it should be thus contributed for, by the other vessel and cargo, it might possibly raise another question, namely, whether the loss was not thus brought within the exception of losses under five per cent. Thus in the reverse of the event in this case, as to the party damaged, the underwriters on the American vessel would, by the operation of the Hamburg law, not only have been exonerated from half the loss, but might possibly have been discharged entirely, in case of the above construction being put upon the exception, as to which, however, I do not wish to be understood as giving any opinion. Since, then, the underwriters would be entitled to the benefit of the operation of the foreign law, in case of the vessel insured being the one injured, it is argued, that in the opposite case, that is, such a one as the present, they ought to be liable to indemnify the assured against the loss he has sustained by the collision, through the operation of this Hamburg rule, to which he would not have been liable by our own laws that

as the underwriters are necessarily entitled to the benefit of the Hamburg law in one case, they should also be liable to make indemnity for the disadvantage sustained by the assured in consequence of its operation in the other case.

It is urged that as it was contemplated by the parties that the vessel would, in the course of the voyage, come within the jurisdiction of these foreign laws, as far as the direct consequences of the perils insured against are affected by the operation of those laws in making an apportionment of the damage on the different subjects of ship, freight, and cargo, the underwriters are bound to make indemnity, precisely as a general average adjusted in a foreign port is binding upon the insurers here in respect to the apportionment of the damage, to which the underwriters are liable to contribute by our laws.

Though, at first view, this appears not to be unreasonable or inequitable, yet there is some difficulty in giving the policy this construction. It is true that where the underwriters are liable to a contribution for an average, and by the vessel's coming within the jurisdiction of foreign laws, the average is by those laws apportioned differently from our rules, the underwriters are bound by the foreign adjustment. But as to the subjects to be brought within the operation of the contract, namely, the kind

Power v.

of perils and species of damage, covered by the policy, the laws of the place where it is made are usually understood to govern. Thus, where, in an average adjusted at Lisbon, the provisions for the crew were included, as one of the items, it was held that the underwriters in England were not liable to make indemnity to the insured for this part of the average, since this was a species of loss not insured against by the policy. Whitmore, 4 Maule and Selwyn's Reports, 141. A similar decision has been made in New York, Lenox v. United Ins. Co. 3 Johns. cases, 178, in respect to a general average adjusted at Lisbon on account of a jettison of pipe staves carried on deck. There is, it is true, some obscurity hanging over this question, but they appear to me to recognise, though in rather vague and indefinite terms, the distinction above suggested.

To apply this distinction to the present case. The underwriters agree in the policy to make indemnity for the damage. done to the subject by the operation of the perils insured against, and also against the expenses voluntarily incurred, and sacrifices voluntarily made, to save the subject insured from the operation of those perils. But it is not a stipulation of the policy to make indemnity to third persons for the damage that the ship may do them, whether by the fault of the master and crew, or in consequence of the operation of the perils insured against, upon the subject insured; nor to indemnify the assured for any loss he may incur by being obliged to make good such damage to third parties.

Another principle seems to exclude this loss from the policy; namely, that by which the insurers are liable only for the direct, and not for the remote, circuitous, and consequential damages occasioned by the perils insured against. Suppose, for instance, a ship insured against the perils of the sea, as distinguished from capture, is driven by those perils into a situation in which she is captured; according to the received doctrines there is no doubt, I think, that the underwriters would not be liable for the loss by capture. There is, in regard to this rule, as well as the one before mentioned, some difficulty and uncertainty in its application; but, to the extent of the case above supposed, it has, I believe, been generally adopted. And the present case seems to me to come within that limit. The collision was a peril of the sea, but the subject insured, in this case, sustained no direct