
    
      SILVA & CO vs. LAFAYE.
    
    APPEAL PROM THE COURT OP THE PIRST DISTRICT.
    Where a continuance is prayed for, owing to the want of a return to the commission which issued seventeen months before, the affidavit should state the causes which led to the failure and the probable grounds of thereafter obtaining the testimony sought.
    A policy of insurance is good evidence to show the fact of the vessel having been insured but furnishes no proof as to her value.
    The plaintiffs effected insurance upon their vessel chartered to the defendant for a voyage from New-Orleans to St. Jago Yeraguas, and from thence back to the port a quo. The petition charged, that the voyage was deviated from and the vessel lost, by which breach of contract, the plaintiffs had lost their recourse upon the Insurance Company, and the defendant had become liable to pay the value of the ves. sel. The claim was resisted by the defendant, on the ground, that the vessel was represented as sea worthy, when, in fact, she was not so. That she encountered tempestuous whea-ther and leaked badly, which forced the captain to put into Grand Cayman Island, where a survey was held and the vessel condemned.
    The deviation from the voyage agreed upon — the loss of the vessel, and the fact of her being well found and seaworthy at the commencement of the voyage, was fully established by the testimony. There was a verdict and judgment for the plaintiff, and the defendant appealed.
    where acontin]?ance .IS ?ray®d for, owing to the want of a return to a commission which issued sew enteen months he-fore, the affidavit causes which led the*16 ^probable1** grounds of thereafter obtaining the testimony sought
    
      
      Gannon for appellant.
    
      Preston for appellee.
    Eastern District,
    
      February 1831.
   Porter, J.,

delivered the opinion of the hour!;.

This is an action on the contract of charter party. The plaintiffs allege the defendant did not use the ^vessel for the voyage agreed on, and for which, with his knowledge, she was insured. That by the deviation, and delay attendant on it, the schooner was lost, and the plaintiffs deprived of all recourse on the Insurance Company.

The defendant pleaded the general issue ; and further, that the deviation alluded to in the petition, was produced by the vessel being decayed and ill found, and that her subsequent loss, was owing to the same cause.

The case was submitted to a jury in the court below, who found a verdict in favor of the plaintiffs, for fourteen hundred dollars, with interest. The defendant appealed.

A continuance was prayed for in the court below, on the affidavit of the defendant’s agent — that from the non return to the commissions forwarded by him to the Grand Cayman and Porto Bello, he could not go safely to trial: that he expected to prove by them the decayed state of the vessel, and that the affidavit was made to obtain justice and not with a view to improper delay.

The petition was filed on the 10th November, 1828, and the answer on the 12th December of the same year, a few days after the commissions spoken of in the affidavit, were taken out, and the cause was called for trial on the 30th of May, 1830.

It appears to us that after a delay of seventeen months, the court did not err in refusing the continuance. The ° causes which led to the failure, of obtaining a return to the • . , . , , , . . „ commission, and the probable grounds of getting hereafte the'testimony sought for should have been presented m the affidavit, for the court, not the party, is to judge ox the dilligence used.

sumnceisgood evidence to show the fact of the vessel having been in e” mo proof'asio her value.

t The plaintiffs introduced the policy of insurance in evi- and the defendant objected to it, because it did not J sufficiently appear, the same vessel was insured for which this suit is brought, and because the value therein given to the schooner could not be evidence against him.

The plaintiffs disclaimed all intention of offering the docu- . . . . ment for the purpose last mentioned, but insisted it was good evidence to shew the fact of the schooner being insured; of this opinion was the judge below, and such is the opinion of this court. The description given in both instruments, viz.: r & . the charter party, and the policy, convinces us that the sarne vessel was the object of contract in both.

On merits, we see no ground to differ from the conclusion of the court and jury below. To shew that they erred, reliance has been principally placed on a discrepancy between the copy of the charter party produced by the plaintiffs, and that read in evidence by the defendants. The contradiction exhibited by these instruments, places the court under the necessity of deciding, whether there has been an interlineation in the one, or an omission in the other. As the former could not have taken place without fraud, and as the latter may have been by error, we prefer giving credit to the instrument introduced by the plaintiffs, more especially, as the other evidence in the cause corroborates the truth of it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.  