Whiton v. Albany City Insurance

109 Mass. 24 | Mass. | 1871

Gray, J.

The clause in each of these policies, by which the vessel insured was “ prohibited from all guano islands,” except the Peruvian or Chinchas, was a warranty, any breach of which defeated the policy, without regard to the question whether it did or did not increase the risk. Odiorne v. New England Insurance Co. 101 Mass. 551. Cobb v. Lime Rock Insurance Co. 58 Maine 326. The issue submitted to the jury, and the true issue be tween the parties, was whether the material deposited on and exported from the island of Navassa was commonly and commercially known as guano, and whether that island was called and known in commerce, trade, navigation and the business of insurance as a guano island; and upon that issue the burden was upon ” the plaintiffs to show that there had been no breach of the warranty. McLoon v. Mercantile Insurance Co. 100 Mass. 474 note. The exceptions taken are to the rejection of books and documents offered in evidence by the defendants to assist the jury in deciding that issue.

Acts of congress, and proclamations issued by the secretary of state in accordance therewith, are the appropriate evidence of the action of the national government. Taylor on Ev. (5th ed.) § 1473. 1 Greenl. Ev. § 491. And the volume of public documents, printed by authority of the senate of the United States, containing letters to and from various officers of state, communicated by the President of the United States to the senate, was as competent evidence as the original documents themselves. The King v. Holt, 5 T. R. 436, and 2 Leach (4th ed.) 593. Watkins v. Holman, 16 Pet. 25, 55, 56. Bryan v. Forsyth, 19 How. 334. Gregg v. Forsyth, 24 How. 179. Radcliff v. United Insurance Co. 7 Johns. 38, 50.

The act of congress of 1856, c. 164, declared that, upon satisfactory evidence furnished to the state department that a citizen of the United States had discovered a deposit of guano on any island, and had taken peaceable possession and occupation thereof in the name of the United States, and that the island was not at the time in the possession or occupation of any other government or its citizens, the island might at the discretion of the President of the United States be considered as appertaining to the United States, the guano might be sold by the discoverer or his assigns to other citizens of the United States and brought to the United States as provided in that act and in the laws regulating the coasting trade, the president might employ the land and naval forces of the United States to protect the rights of the discoverer or his assigns to take the guano from the island, and all crilnes there committed might be punished according to the laws of the United States as if committed on the high seas.

The public acts and documents offered in evidence tended to show that the United States had acquired, and had asserted against foreign governments, a title in the island of Navassa by discovery and lawful possession, as authorized by the law of nations. Halleck’s International Law, c. 6, §§ 7, 15. Wheaton’s international Law (8th ed.) §§ 165, 172, 178 note. As the acl of Congress of 1856 authorized such title and possession to be so acquired and maintained only in islands having a deposit of guano thereon, we are of opinion that all these acts of the government, done by the sovereign power in which was vested the authority of regulating commerce and intercourse with foreign nations, in peace and war, tended to show that the deposit on the island of Navassa was guano, and the island itself known and called by those engaged in commerce, trade, navigation and marine insurance, as a guano island, and were therefore competent, though not conclusive, evidence of the meaning of the words “ guano islands,” as used in these policies. It follows that the defendants’ exceptions to the rejection of this evidence must be sustained.

The circular issued by the secretary of the treasury since the execution of the policies in suit could not affect their interpretation, and was therefore rightly excluded.

The defendants were also rightly refused permission to read to the jury an article in Appleton’s Cyclopaedia. A book published in this country by a private person is not competent evidence of facts, stated therein, of recent occurrence, and which might be proved by living witnesses or other better evidence; and the book in question, not being shown to have been approved by any public authority, or to be in general use among merchants or underwriters, had no tendency to show that the island of Navassa was commonly called and known as a guano island. Fuller v. Princeton, 2 Dane Ab. 333, 334. Morris v. Edwards, 1 Ohio, 189, 209. Morris v. Harmer, 7 Pet. 554, 558. Houghton v. Gilbart, 7 C. & P. 701.

Exceptions sustained.