US SUPREME COURT DECISIONS

In the caption of a deposition, taken before the Mayor of Norfolk, to be used in a cause depending and afterwards tried in the Circuit Court of the United States held in Baltimore, the mayor stated the witness "to be a resident in Norfolk," and in his certificate he states that the reason for taking the deposition is "that the witness lives at a greater distance than 100 miles from the place of trial, to-wit, in the Borough of Norfolk." It was sufficiently shown by the certificate, at least prima facie, that the witness lived at a greater distance than 100 miles from the place of trial.

The provisions of the thirteenth section of the act of Congress, entitled "An act to establish the judicial courts of the United States," which relate to the taking of depositions of witnesses whose testimony shall be necessary in any civil cause depending in any district in the courts of the United States who reside at a greater distance than 100 miles from the place of trial are not confined to depositions taken within the district where the court is held.

In all cases where, under the authority of the act of Congress, a deposition of a witness is taken de bene esse except where the witness lives at a greater distance from the place of trial than 100 miles, it is incumbent on the party for whom the deposition is taken to show that the disability of the witness to attend continues, the disability being supposed temporary and the only impediment to a compulsory attendance. The act declares expressly that unless this disability shall be made to appear on the trial, such deposition shall not be admitted or used on the trial. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than 100 miles, he being considered beyond a compulsory attendance.

The deposition of a witness living beyond 100 miles from the place of trial may not always be absolute, for the party against whom it is to be used may prove the witness has removed within the reach of a subpoena, after the deposition was taken, and if that fact was known to the party, he would be bound to procure his personal attendance. The onus probandi thus would rest upon the party opposing the admission of the deposition in evidence. For a witness whose deposition is taken under such circumstances, it is not necessary to issue a subpoena. It would be a useless act; the witness could not be compelled to attend personally.

By the Act of 2 March, 1793, subpoenas for witnesses may run into districts other than where the court is sitting, provided the witness does not live at a greater distance than 100 miles from the place of holding the court.

Damages to a vessel by any of the perils of the sea on the voyage insured, which could not be repaired at the port to which such vessel proceeded after the injury without an expenditure of money to an amount exceeding half the value of the vessel at that port after such repairs, constitute a total loss.

The rule laid down in the books is general that the value of the vessel at the time of the accident is the true basis of calculation, and if so, it necessarily follows that it must be the value at the place where the accident occurs. The chanrobles.com-red

Page 30 U. S. 605

sale is not conclusive with respect to such value. The question is open for other evidence if any suspicion of fraud or misconduct rests upon the transaction.

As a general proposition, there can be no doubt that the injury to the vessel may be so great as to justify a sale by the master. There must be this implied authority in the master from the nature of the case. He, from necessity, becomes the agent of both parties, and is bound in good faith to act for the benefit of all concerned, and the underwriter must answer for the consequences, because it is within his contract of indemnity.

There must be a necessity for a sale of the vessel and good faith in the master in making it, and the necessity is not to be inferred from the fact of the sale in good faith, but must be determined from the circumstances. The professional skill, the due and proper diligence of the master, his opinion of the necessity, and the benefit that would result from the sale to all concerned would not justify it unless the circumstances under which the vessel was placed rendered the sale necessary in the opinion of the jury.

There is some diversity of opinion among the elementary writers and in the adjudged cases as to what will constitute a valid abandonment. It seems, however, agreed that no particular form is necessary, nor is it indispensable that it should be in writing. But in whatever form it is made, it ought to be explicit, and not heft open as matter of inference from some equivocal acts. The assured must yield up to the underwriter all his right, title, and interest in the subject insured, for the abandonment, when properly made, operates as a transfer of the property to the underwriters, and gives them a title to it, or what remains of it, as far as it was covered by the policy.

The consul of the United States at the port where a vessel was sold in consequence of her having, in the opinion of the master, sustained damages, the repairs of which would have cost more than half her value at that port, declared in the protest of the captain, made at his request, that the captain abandoned the vessel, &c., to the underwriters. This protest, as soon as it was received by the assured, the owners of the vessel, was sent to the underwriters, and the owners wrote at the same time that they would forward a statement of the loss with the necessary vouchers, and they soon afterwards did forward the further proofs and a statement of the loss to them. This constituted a valid abandonment.

The defendants in error instituted an action against the Patapsco Insurance Company in the circuit Court of Maryland on a policy of insurance on the schooner Frances, Seaward, master, from Curacoa or a port of departure in the West Indies or on the main to a port in the United States. On her voyage from Carthagena to Norfolk, the Frances encountered a severe gale and sustained such injuries as made it necessary for her, after two days, to put back to Carthagena. On entering that port, she struck several times on a sand bar, and on examination it was found that she required considerable repairs in her hull and rigging. She was placed by the chanrobles.com-red

Page 30 U. S. 606

captain under the care of the American consul at Carthagena, and was sold by him at private sale to Evans for $140, with the consent of the captain. Evans afterwards sold the Frances to Palmer for $200. She was repaired by Palmer and returned to the United States. The plaintiffs claimed a total loss from the underwriters.

On the trial in the circuit court, the defendants took exceptions to the opinions of the court, on points submitted by the plaintiffs and by the defendants, for instructions to the jury, which, with the facts of the case, are fully stated in the opinion of the Court.

The deposition of Thomas Evans was offered in evidence by the plaintiffs below, and after exceptions to its legality by the defendants, was admitted by this Court. The deposition was taken ex parte at Norfolk before the mayor of that place. In the caption, the mayor states the witness to be a resident in Norfolk; and in his certificate declares the reason for taking it to be that the witness "lives at a greater distance than 100 miles from the place of trial, to-wit: at the Borough Norfolk." No subpoena was issued for Evans, and no other evidence was offered of the place of his residence, than the caption of the deposition in the handwriting of the Mayor of Norfolk.

The jury having found a verdict for the plaintiff in the circuit court, the defendants prosecuted this writ of error. chanrobles.com-red

Page 30 U. S. 615