
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Church v. Teasdale.
    Where the protest of the loss of a vessel is introduced in evidence on the trial of an action against the insurers, evidence of declarations contradicting the protest, made by persons who subscribed it, is admissible to discredit the protest. The objection that it is hearsay does not apply.
    Motion on behalf of defendant for a new trial. The action, which was tried before Grimke, J., in Charleston, was on a policy of insurance from Charleston to Kingston, Jamaica, and from Kingston back to Charleston, on the vessel and freight. The plaintiff was owner of the ship. The protest, which was of the plaintiff, and others, stated a loss of the ship by stranding. The examination of one Birdsall, taken by commission, was read in evidence for defendant. He deposed to certain conversations with the plaintiff, in which plaintiff was very anxious that one Collins, who wag with him when the vessel was lost, might not return to Charleston, lest' ho should disclose circumstances relative to the loss of the vessel, wbich might overset the insurance. Collins was one of the per» sons who signed the protest along with plaintiff. Part of Birdsajpg evidence, which went to impeach the evidence of Collins in the protest, to wit, that Collins told him Church had run the vessel ashore on purpose, and' burnt her, was suppressed by the court at the trial as hearsay; being what Collins related to'him respecting the plaintiff, and the loss of' the vessel, variant from what the protest stated. It was a valued policy, and the premium covered the voyage out and back. The jury found for the plaintiff.
    For the defendant, it was argued, that here were two distinct voyages insured. That freight was proven from Charleston to Jamaica, but not any proved from Jamaica back; and therefore, at any rate, as the last voyage was not performed, the plaintiff was not entitled to recover. Park. 36. T. R. 362. Weskett. 183. 1 Bos. <& Pul. 172. See Abbott. 265. The protest was not admissible ; for the plaintiff, by this means, would be allowed to give evidence in his own cause. Protests, in general, are admitted ex necessitate rei; and they should always be produced; but they should be ad, mitted with great caution. They ought not to be admitted, where any fraud or collusion is imputable to them. A protest, per se, is not sufficient evidence. 2 Esp. Rep. 691. Weskett. 432. I Dallas, 196,318. Protests should be admitted only under certain restrictions. 3 Marsh. 616. 7 T. R. 158. They may be evidence, but only as connected with other evidence. This is not like a general trading voyage, which is entire ; but two separate voyages. No proof that any return cargo was put on board ; and no freight, therefore, can be due for that. Park. 35. It is not like a charter party. Here the' contract takes effect from the time of taking the goods on board»-3 T. R. 36.
    
      E Contra.
    
    Protests are admissible in evidence ; and the degree of credit to which they are entitled, must be left to the jury. The protest, in this case, was of other persons besides the plaintiff, and they are disinterested. They have been uniformly admitted. The rule laid down m Weskett, is not supported by authority. It is said, Park. 4Ü6, that protests are not evidence of circumstantial facts; but of the material facts, relative to the loss of vessel, they are. The protest of the master is, in common cases, sufficient. The captain, in this case, although plaintiff, had the right to protest for the benefit of others concerned Birdsall’s evidence, as to Col, lips, was hearsay, and matter of opinion. Park. 192, The protest Was made at the first port, and as soon as could be. 1 Dali. 318, is not law. 7 T. R. 154 The law of that case, is> particularly applicable to this case. All underwriters know that protests are given in evidence. They contract with a view to it. It is custoinary in all civilized countries, and necessary to the encouragement of commerce. The voyage, was an entire voyage, to and from Jamaica. 2 Marsh. 612.
    Ward, Ford, and Drayton for defendant. Cheves for plaintiff.
   The court,

(Bay, Johnson, Trezevant, and Brevard, Justices, absent Gr.mke, J., and Waties, J.,)

granted a new trial, on ac. count of the rejection of that part of Birdsall’s evidence, which related to what Collins said to him, contradictory to what he, Col. lius, had sworn to in the protest; as it was proper evidence to dis. credit the protest, The court expressed no opinion relative to the other points controverted in the argument of the case, except as to the admissibility of protests in general. How far they are entitled to weigh with the jury, must depend upon the circumstances of each particular case in which they are produced in evidence.

New trial ordered.

Note. — If the policy contains an entire risk on one vpyage, the parties consider the premium as an entire sum for the whole, without division; and, if the risk has begun, there shall be no return of premium: but, if the contract can be split into different risks, the premium must be returned for such of the risks as neves began. S e Doug. 781. Park. 386. The above case was that of an entire risk, and one voyage, and not two distinct voyages.  