1 Johns. 385 | N.Y. Sup. Ct. | 1806
delivered the opinion of the court. If has been objected that, by the ' 25th Geo. 3. ch. CO, the certificate of registry not having been inserted, the bill of sale was utterly null and void. It has also been objected that the plaintiff having given a bottomry bond to A. & J. M'Clure, for £2000, which sum they were authorised to get insured on the vessel, there was no insurable interest but the bottomry. With respect to the effect of the British statute, it is a sufficient answer to observe, that it has been proved only by parol ; for though courts’ of law will receive evidence of the common law, from intelligent persons of the country whose laws are to be proved, I think there exist strong reasons against such proof of foreign statutes, and this distinction, undoubtedly, prevails in the English courts. All the evidence in the case shows manifestly that the plaintiff had a reasonable and almost certain expectation of procuring all the muniments necessary to give him a title even under the British statute; he had paid nearly two thirds of the amount of the purchase money, he had the full dominion of the vessel, and according to the cases of Le Cras v. Hughes, and Grant v. Parkinson,
That a bottomry interest cannot be insured, but co nomine has been decided in this court ; the M'Clures, therefore, could not have been otherwise insured. The case of Williams v. Smith
I can perceive no impropriety in the judge’s charge in say-, ing, “ as the'defendants, for the purpose of showing such prior “ insurances, have resorted to the plaintiff’s affidavit, the “ whole of it must be taken together.” The soundness of that position has not been controverted ; but the counsel suppose that it ought to have been also observed, that the jury were not bound to believe that part of it which stated that the ves. sel, when she sailed on the voyage insured, was worth, and had cost $7000. If verdicts were to be set aside because the judge, in delivering a charge, omitted comments which might have been proper, there are but few verdicts that would stand the test. It is difficult to believe that the jury could have understood the judge, that they were to believe every part of the affidavit; but that they might believe it, or not, in their discretion.
With respect to the last point, it appears that there was a prior insurance to the amount of $3000. The bottomry is stated by Mitchell to be $2000, and the value of the ves
Judgment for the plaintiff.
Marshall, 84. 111. 219.