
    Ebenezer H. Stacy, and Another, v. John Graham.
    The defendant, in a letter to the plaintiffs, stated that a fund then in his hands, arising from the sale of a vessel of which they claimed to be the owners, would be held by him “ subject to their order.”
    
      Held, that the latter was sufficient evidence of their title and of his liability, and that its construction was a question of law that it belonged to the court to determine.
    The rule of evidence, which rejects the proof of any declarations of a witness inconsistent with testimony, unless an opportunity of explanation is afforded to him, is just as applicable when the witness is examined conditionally out of court, as when he is examined upon the trial The authority of this rule has not been shaken by the decision of the Supreme Court in The People v. Moore (15 Wend. 421).
    The possession of a vessel by persons claiming to be its owners, is presumptive evidence of their ownership, and it is only when their title is impeached by contradictory proof that the production of the vessel’s register can be necessary. The possession by the master is the possession of those who appointed and employed him.
    The recalling of a witness after a cause has been submitted to the jury, rests entirely in the discretion of the judge, and his refusal to comply with such a request is not a subject of exception.
    (Before Duer, Campbeií, and Hoffman, J.J.)
    June 9;
    June 19, 1854.
    This action was brought by the plaintiffs, as the owners of the brig Venus, to recover from the defendant the sum of $1,403.07, which the complaint alleged had been received by him as part of the proceeds of the sale of the brig, .under his promise to remit or pay over the same to the plaintiffs.
    The answer of the defendant denied that the plaintiffs were the owners of the Venus, but admitted that he had received the sum mentioned in the complaint from the proceeds of her sale, by virtue of an order given to him by the master, George W. Adams, who, it alleged, was the owner or a part owner of the brig; and set up as a full defence that he, the defendant, was entitled to retain the sum so received under an agreement with Adams, and for the purpose of satisfying certain demands of his own against Adams.
    The cause was tried before Oakley, Oh. J., and a jury, in December, 1853.
    Upon the trial, the deposition of George W. Adams, taken de bene esse, was read in evidence on the part of the plaintiffs, in which the witness testified to the following facts:
    That the plaintiffs were the sole owners of the brig Venus, of which he was the master, and that in the spring of 1850, the brig was condemned and sold at Rio de Janeiro as nnseaworthy; and that 2,496 milreas and 344 reas, part of the proceeds of the sale, were placed by him in the hands of Maxwell, Wright, and Co., merchants at Rio de Janeiro; and that he afterwards gave an order to the defendant on Maxwell, Wright, and Co., under which he, the defendant, recei\*bd the whole sum placed in their hands. That when he gave this order, it was agreed that the defendant should retain from the sum to be received by him, 650 milreas, which he had previously advanced to the witness, and that he should remit the balance to Mrs. Adams, the wife of the witness, by whom it was to be paid over to the plaintiffs. The witness also swore that the order set forth in the complaint was a true copy of the original order on Maxwell, Wright, and Co., which he had given to the defendant.
    When the reading of this deposition was finished, the counsel for the defendant moved to strike out all the questions and answers therein relative to the ownership of the brig Venus, and of the proceeds of her sale, upon the ground that this ownership could only be proved by the production of the Custom-house register, or of a duly authenticated copy. The court denied the motion, and the counsel excepted.
    The counsel also moved to strike out all the questions and answers relative to the agreement between the witness and the defendant, at the time the order on Maxwell, Wright, and Co. was given.
    This motion was also denied, and the counsel excepted.
    The counsel also moved to strike out the question and the answer thereto, whether the order set' forth in the complaint was a true copy of the original order given by the witness to the defendant.
    The court denied the motion, and the counsel excepted.
    The plaintiffs’ counsel then read in evidence a letter from the defendant to the plaintiffs, dated 17th day of September, 1852, which was admitted to be in the defendant’s handwriting, of which the following is a copy:
    “ Office of Jones & Johnson,
    Insurance Brokers, Mo. 90, Wall street,
    Mew York, 17th Sept., 1852.
    “ Gentlemen,—By order from Captain Adams, Messrs. Maxwell, Wright, and Co. has in account credited the undersigned with some money arising from the sale of the Venus, which would have been remitted ere this had I not been otherwise instructed; but now, as Captain Adams has arrived, the amount shall be held subject to your joint order. I believe' the amount to be about 2,4941| 000, but will this evening refer to my account current. Captain Adams is to furnish me with his individual account, and then the balance will be held as above stated.
    “Yours respectfully,
    “ John Graham.”
    Another witness was then examined on the part of the plaintiffs, who produced and proved a calculation in writing, showing that the milreas received by the defendant amounted in dollars to the sum mentioned in the complaint. The defendant’s counsel objected to the reception of.the paper produced in evidence. The objection was overruled, and he excepted.
    The plaintiffs’ case was here rested; and the counsel for the defendant moved that the complaint should be dismissed, upon the ground that there was no legal proof of the ownership of the Venus. The motion was denied, and the counsel excepted.
    The counsel for the defendant then offered to prove, by a witness who was produced and sworn, that Captain Adams, in various conversations with the witness, had admitted that his testimony, as contained in his deposition taken de bene esse, was wholly false, and had been given by him under threats from the plaintiffs, that unless he would sustain their action against the defendant, they would prevent him from having the command of another ship. The counsel for the plaintiffs objected to the testimony so offered, upon the ground that the declarations of Adams out of court, and in respect to which he had not been examined nor cross-examined, were not admissible in evidence to impeach him and contradict his deposition. The court sustained the objection, and the counsel for the defendant excepted to the decision.
    The counsel for the plaintiffs then offered to read in evidence two letters addressed by the defendant. to Captain Adams, several months after the latter had been examined de bene esse, for the purpose of showing that he still retained the confidence of the defendant. The defendant’s counsel objected to this evidence, but the court held it to be competent, and the counsel excepted to the decision. The letters were then read, but it is deemed unnecessary to state their contents.
    
      The testimony was then closed on both sides.
    After the case had been summed up by the counsel, and the chief justice had charged the jury, the counsel for the defendants offered to recall one of his witnesses, for the purpose of showing the true value of a milrea in American currency. The plaintiffs’ counsel objected, and the judge refused to permit the witness to'be examined, to which refusal the defendant’s counsel duly excepted.
    The chief justice charged the jury (among other things),, that he was unable to discover any ground of claim on the part of the defendant to the balance of the money or fund in question, after allowing for the amount shown by the witness Adams to have been loaned by the defendant to him, which the jury should credit to the defendant, and that they should take into consideration all the evidence, including the defendant’s letters, and that if they believed such evidence, the plaintiffs were entitled to recover for the balance of money in the defendant’s hands ; that in considering the evidence, the credibility of the witness Adams was a question for them, and that if any part of his testimony was contradictory or false, the jury must take that into consideration, and might disregard all he had said; that the jury should take the statements furnished by the witness Acres, and say what parts of it should be allowed or disallowed. To these directions of the court, and every part of them, the defendant’s counsel then and there duly excepted.
    The defendant’s counsel then requested the court to charge the jury as follows, viz.:
    1. The letter written by the defendant to the plaintiffs, on the 17th of September, 1852, is to be construed by the jury. It is a question of fact for the jury—What is the meaning or effect of this letter ?
    2. If the jury do not believe the witness Adams to be credible, they cannot find a verdict upon his testimony.
    The law requires one credible witness at least.
    3. If the jury believe that the brig Venus had been abandoned to the underwriters at the time of the transaction in question with the defendant, and that the witness Adams was acting for them, the plaintiffs cannot recover.
    The court refused to charge the last mentioned propositions —all or any of them, as requested, except as it had already-charged—and to its decision in that behalf, and every part of it, the defendant’s counsel then and there duly excepted.
    The jury retired under the charge as given, and subsequently rendered a verdict in favor of the plaintiffs for $1,249.43.
    The verdict,' by the agreément of the counsel, was taken subject to the opinion of the court at general term;
    The cause was now heard upon a case containing the evidence and the exception's taken on the trial.
    
      W. C. Noyes, for the plaintiffs,
    moved for judgment on the verdict, and insisted that no valid exceptions had been taken, either to the rulings of the judge upon questions of evidence, or to his charge to the jury. He urged that if the plaintiffs were bound to prove the register of the vessel sold, or to give any documentary evidence in respect to their title, they were at liberty to do so then, and for that purpose he produced the following papers:
    1. A certified copy of the registry of the vessel, dated May 23d, 1848, showing that she belonged to the plaintiffs and John H. Stacy and George W. Plummer, at that time.
    2. Two bills of sale, one by Plummer to the plaintiffs, dated July 1,1848, of all bis interest, and one by John H. Stacy, of all his interest to the same plaintiffs, dated October 4, 1849. These bills of sale are duly proved before a Hew York Commissioner, and show the entire title to have been in the plaintiffs.
    These documents, he contended, were admissible to show that a new trial was unnecessary, and cited Williams v. Wood, 14 Wend. 126 ; Dresser v. Brooks, 3 Barb. 429; Murray v. Smith, 1 Duer, 412.
    
      J. Graham, for the defendant,
    contended that the exceptions stated in the case ought each and all of them to be sustained by the court, and that a new trial should consequently be granted. He cited Sharp v. United Ins. Co., 11 John. 201; Leonard v. Huntington, 15 Id. 298; People v. Moore, 15 Wend. 419; Same v. Hulse, 3 Will. 309; Amidon v. Wheeler, 3 Hill, 139.
   By the Court. Hoffman, J.

The most important piece of testimony in the case is a letter of the defendant to the plaintiffs, which is as follows:

“ Hew York, 17th September, 1852.

“.Gentlemen,—By order from Captain Adams, Messrs. Maxwell, Wright, and Company have in account credited the undersigned with some money arising from the sale of the Venus, which would have been remitted ere this had I not been otherwise instructed; but now, as Captain Adams has arrived, the amount shall be held subject to your joint order.. I believe the amount to be about 2,4941| 000, but will this evening refer to my account current. Captain Adams is to furnish me with his. individual account, and then the balance will be held as above stated.

“Yours respectfully,

“ John Graham.”

We ai;e of opinion that this recognises an obligation to account- to the plaintiffs, either for the whole amount, or such amount as might remain after an adjustment with Adams. The plaintiffs resided at Gloucester, Massachusetts, and the words, “ which would have been remitted ere this,” can only mean remitted to them. Therefore, as Adams had arrived, and was to furnish an account, the responsibility to-’the plaintiffs for the whole amount, or what should remain when that account was made up, was plainly admitted.

It was the defendant’s duty, also, to have promptly apprised the plaintiffs whether Adams’s account did reduce the amount allowed to be on hand.

The judge was not bound to submit the interpretation of this letter as a question of fact to the jury. Its construction is purely a question of law, arid we have no doubt of the correctness of that which we have given.

Hence, without resorting to Adams’s testimony at all, we consider that the plaintiffs’ case has been made out.

But his testimony, if credible, is decisive. We are of opinion that his credibility was sufficiently left to the judgment of the jury, in the charge of the chief justice.

■ An objection is taken to the ruling of the judge, that he excluded testimony as to subsequent declarations of Captain Adams, that he had testified falsely upon his examination; that he had given it under threats from the plaintiffs. The witness had been examined de bene esse before the trial, and at the time of the trial was absent from the country.

It cannot be denied, that the general rule of evidence prohibits the admission of any declarations of a witness, inconsistent with his sworn testimony, unless he has an opportunity of meeting and explaining them. The Queen’s case, and the other authorities collected in 1 Grreenleaf on Evidence, § 262, establish and explain this rule.

We do not think that the circumstance of the deposition having been taken de bene esse, makes a difference. The de-' fendant allowed the deposition to be réad. Had he applied to the court to put off the trial, on the ground of the discovery of: these declarations, and the absence of the witness, it may be that a postponement would have been permitted. But he may not suffer the cause to proceed, speculating upon his chances of success, and at the close of the trial proffer evidence of this nature.

The case of The People v. Moor, 15 Wend. 421, has been cited, as sanctioning an opposite doctrine. The public prosecutor, upon an indictment for murder, produced a witness by the name of Mansfield. The prisoner then produced a witness, Gook, who testified as to Mansfield’s declarations inconsistent with her evidence. Cook refused to testify on cross-examination, and was committed to jail. She then told a witness that her statements as to Mansfield’s declarations were false, and this evidence was admitted.

' So far as the rule referred to rests upon the protection due to a witness, it is manifest that when Cook was in jail for contumacy in refusing to testify, her right to be protected was justly disregarded. And as to the party producing her, a similar observation applies. He had produced one, who the committal proves was a dishonest witness; and it is further to be observed, that as she had not in fact been cross-examined, her examination in chief was not evidence at all, and ought, upon this ground alone, to have been wholly rejected. At any rate, a case of so peculiar a character is not, in our-opinion, sufficient to. shake a long established and-important rule, of evidence.

There are some other exceptions upon which the counsel for the defendant laid much stress in his argument, to which I shall briefly advert, for the purpose of showing- the grounds, upon which they are overruled.

, The evidence given by Adams as to the ownership of the ■'vessel was properly received, and if he was believed by the jury, was sufficient to. prove the fact. He swore-that the plaintiffs were the sole owners, and that he had navigated the vessel in their employ. His possession, therefore, was the possession of those who, as owners, had employed him. The possession, however, of persons, claiming to be owners is, in all cases, presumptive evidence of their ownership; and it is. only when the title is rendered doubtful by contradictory proof, that the production. of the - register can be necessary. It is true, that in England, it appears, to be held that, those only whose names, appear upon the registry óf a vessel, can be recognised as its owners; and, consequently, when the: title is put at issue by the pleadings, it is only by the production of . the register that it can be established; but this seems to be owing to the peculiar and stringent provisions of one or more acts of-Parliament. There are no similar provisions in our acts of Congress, relative to the registry of vessels; and in this country, and particularly in this State, it has. long been settled that parole evidence,.to prove the ownership of a vessel, may always be received, and may even, in some cases, be received to prove the ownership of a party to the suit, notwithstanding the legal title is shown-by the register to be in other persons (Wendover v. Hogeboom, 7 John. 308; Leonard v. Huntington, 15 John. 298 ; Sharp v. United Ins. Co., 14 John. 201; Thorn v. Hicks, 7 Cow, 697; Hesketh v. Stevens, 7 Barb. 488; Bixby v. Whitney, 8 Pick. 86 ; Venal v. Burrill, 16 Pick. 140; U. States v, Wellings, 4 Cranch. 55; 3 Kent’s Com., 5th ed., pp. 120,121).

I add, that even had the proof of ownership upon the trial ' been insufficient, its defects would have been remedied by the ■ documents that were produced upon the .argument before us, ■ and which, we-agree .with the counsel for the plaintiffs, were, for that .purpose, admissible in evidence.

The motion to strike out all those portions of the deposition of Adams which related to the agreement between him and the defendant, when the order upon Maxwell, Wright, and Co. was given, was very properly denied. The evidence was explanatory of the order, and not at all inconsistent with its terms, and it was in direct support of material allegations in the complaint, which were denied by the answer; and that the agreement was void, because it was not reduced to writing, cannot be pretended. The presiding judge would have committed a strange error had he, by granting the motion, excluded the evidence.

■ Whether the question to Adams, whether the order set forth in the complaint was a true copy of that which he had given, should have been overruled, it is needless to consider, since both the question and the answer were wholly unimportant. The fact that alone was necessary to be shown, was, that it was by virtue of an order from the captain of the vessel that the fund in question had been received by the defendant, and this was distinctly admitted in the answer. Mo proof as to the-order was, therefore, necessary to be given, and its, substance-being admitted, its exact words were immaterial..

We think that the decision of the judge, that the letters written by the defendant to Adams, some months after the deposition of the latter had been taken, were competent evidence, was, under the circumstances, entirely correct. The truth of the statement made by Adams was denied. He was charged with wilful and deliberate falsehood. Hence, that it was competent to show that the truth of his deposition had been admitted by the defendant himself, it is-impossible to doubt. It was, however, for the purpose of justifying this inference that the letters were produced and read; and whether, had the defendant believed that the deposition of Adams was wilfully false, he would have written to him subsequently in terms of confidence and friendship, was a question very proper to be-submitted to the consideration of the jury..

The refusal of the judge, when, by the closing of his charge*, the case had been submitted to the jury, to permit the recall of a witness previously examined, was not a ground of exception. Whether he would allow the witness to- be then: exa-r mined upon the questions that it was said had been inadvertently omitted, or examined at all, rested entirely in his discretion. His refusal,. we see no reason to doubt, was a proper exercise of his discretion; and it is certain, from the nature of the questions that were to have been put to the witness, that it could ,not have operated to the prejudice of the defendant.

One or two exceptions remain that, in our opinion, do not require a special notice. They are overruled as plainly frivolous.

. An objection was taken as to the valuation of a milrea, and especially of the exchange of ten per cent, allowed by the jury, the testimony of Ayres being considered as insufficient. This difficulty could now be remedied in a summary method, but in truth the pleadings remove it.

Tim complaint states that the defendant received, by virtue of the order, the sum of 2,4941| 344 milreas, of the value ' of $1,403.07. The defendant, in his answer, admits, that in or about the month of April, 1851, he received from Maxwell, Wright, and Company, 2,496 milreas and 344 reas, and does not deny the value in dollars. By the contract, he was to deliver this sum to Mrs. Adams, in Massachusetts, deducting his own advance. The value stated in the complaint, is precisely the value of the milreas, as computed by Ayres ; but the jury have valued them at $1,397.07, exchange being taken at ten per cent. The verdict, therefore, needs no alteration as to the principal sum.

But we are of opinion that the allowance of interest is incorrectly made. We find no evidence or admission of a liability to the plaintiffs until the letter of the 17th of September, 1852. The original engagement was to pay the amount to Mrs. Adams, Gloucester.

The correct statement will be to allow interest on the 640 milreas, $364, from the 28th of March, 1850, the date of the advance, to the 1st of April, 1851; to deduct the aggregate from $1403.07, as of that day, and to compute interest' tin the balance to the day of the judgment. If the plaintiffs consent to this reduction, judgment may be entered for them for such amount, but without costs of the appeal; otherwise a new trial must be ordered.

The plaintiffs consenting to the reduction, judgment was rendered in their favor upon the verdict so reduced.  