
    
      George H. Cameron & Co. vs. R. Rich.
    
    In an action against a master of a vessel for injury to goods, which he had undertaken to carry safely, “ dangers of the sea” excepted, from Liverpool to Charleston, held, that the log-book, kept by the mate, who had recently died, and the protest, made by the master, the mate and some of the crew, were, neither of them, admissible for the defendant to shew that the vessel had encountered storms at sea from which, it was alleged, the injury arose.
    The rule as to the admissibility of entries or declarations made by third persons, as laid down in Gilchrist if- King vs. Martin West, (Bail. Eq. 503), re-affirmed, ()
    
      Before Evans, J. at Charleston, Fall Term, 1851.
    This was an action by the plaintiff, to recover for the injury to certain articles of hardware and crockery, shipped on board the ship Martha, of which the defendant was master or captain. The bills of lading were dated at Liverpool, about the 1 st of September, 1847, and contain the usual exception of “ the dangers of the sea.” When the goods arrived in Charleston, (about the 10th of November,) they, as well as the cargo generally, were found to be more or less injured. There was a survey, and the amount of the injury ascertained, and this action was to recover the loss thus sustained. There were 1200 bags of salt stored between decks, and the great matter in controversy was, whether the injury had been sustained by leakage from the salt, through the seams of the deck, upon the goods below, or whether it arose from storms at sea. There was no evidence of actual storms, and it was proposed to prove this by the log-book kept by the mate, who, it was said, had recently died, and the protest made by the defendant, (the captain,) the mate, and some of the seamen ; both of these were refused as inadmissible.
    The evidence on both sides was gone into, pretty much the same as reported 4 Strob. 168, except that the defendant further proved that the Martha, when she left Liverpool, had been recently caulked, and was staunch and in good order.
    “I explained to the jury,” said his Honor in his report, “the duties and liabilities of carriers, and what would and what would not excuse them, and submitted the case, with a full recital of the evidence on the following propositions :
    “ 1. That the defendant, having received goods, was liable for any injury, unless he satisfied the jury that it arose from the dangers of the sea.
    “ 2. That if the injury was the effect of a storm, that would excuse, and that the existence of a storm was a fact which the law did not require to be proved by any particular kind of evidence ; circumstantial evidence was often as satisfactory as direct proof.
    “ 3. If the circumstances were satisfactory, that the vessel had encountered a storm, that would excuse the defendant, if the injury could be referred to that cause.
    “4. But if the injury arose from the dripping of the brine, through the seams of the deck, then the defendant was liable.
    “ The jury found a verdict for the plaintiff.”
    The defendant appealed, and now moved for a new trial, on the grounds,
    
      1st. Because his honor refused to admit the log-book of the ship Martha.
    2d. Because his Honor refused to admit the protest of the captain, and also of the mate and officers of the ship Martha.
    3d. Because the evidence fully established the seaworthiness of the ship, at the time of her sailing, in every respect; that the vessel had encountered a severe storm, and the loss is fairly attributed to the dangers of navigation, which were excepted out of the bill of lading, and so the verdict should have been for the defendant.
    4th. That the said verdict was arbitrary, and without suffi•cient evidence, and against the weight of evidence.
    
      J. M. Walker, Hunt, for the motion,
    cited 2 Bail. 157; 8 Pep. 32; 2 Phil, on Ins. 293 ; 2 Conk. Law of Adm. 691; Gil-pin R. 147; 1 Rich. 234 ; 3 Stark. Ev. 300.
    
      Dukes, contra,
    cited 4 Rich. 416; 3 Hard. & Johns. 74; Dunl. Adm. Pr. 250.
    
      
      (a ) See Price vs. Torrington, 1 Smith L. C. 139, and Higham vs. Ridgmay, 2 Smith L. C. 183, and notes.
    
   The opinion of the Court was delivered by

O’Neall, J.

The first ground supposes, that the “ log-book” of the ship Martha, was competent evidence. I do not perceive how it can be very well distinguished from the exclusion of the protest, which, according to Cudworth vs. The South Carolina Insurance Company, (4 Rich. 416,) is incompetent evidence.

It has, however, been supposed, that the “log-book,” as memoranda of daily transactions, may be likened to shop-keepers’ books; and, in that respect, might be evidence, when it was shewn that the mate, a person making the entries, was dead, or removed. It is very clear, that the rule of admitting entries, analogous to shop-keepers’ books, has been, of late, constantly narrowed. This would be an extension to an entire new class of cases, and cannot be allowed.

The case of O'Neale vs. Walton, (1 Rich. 234,) cannot help the defendant in this respect. For that case does not make a memorandum made by a witness, at the time of a transaction, evidence of the facts then set down : it only allows the witness to refer to it to refresh his memory. So here, if the mate had been on the stand, he might have referred to the log-book to refresh his memory.

The rule as to the admissibility of entries or declarations made by third persons, underwent the examination of the Court of Appeals in Gilchrist & King vs. Martin & West. (Bail. Eq. 492). From the opinion which I delivered in that case, (in 1831) I extract the following, (page 503) as an exposition of the rule, and which will shew that the log-book could not be received as an entry or declaration.

“ From this view of the cases, I come to the conclusion that, before an entry or declaration can be received in any case, it must appear, first, to have been made without any intent to falsify the fact; second, in cases other than those depending on hearsay, such as pedigree, custom, boundary, and, perhaps, prescription, that it was made against the interest of the party in the subject matter of the entry or declaration ; and, third, that the entry or declaration itself, unless where it is made by a tenant in possession, should be so ancient, as to preclude all suspicion, that it was manufactured for the occasion. And the cases in which entries or declarations are generally admissible, are, first, in aid of, or to repel a legal presumption from lapse of time: second, to give character to an ancient possession, or to make out an ancient title: third, to corroborate, or to repel, a conclusion arising from other testimony as to a long past event or fact: and, fourth, to give character to an actual recent possession, and thereby shew a right of property in a third person.”

The second ground is disposed of as has been already intimated by Cudworth vs. The South Carolina Insurance Company, (4 Rich. 416).

The third ground is one of fact, and the Court sees no reason to suppose that the verdict was wrong. The former decision, (4 Strob. 168) held very properly, that the carrier must shew, that the injury which the plaintiffs' goods received, arose from stress of weather. That there was testimony from which such a conclusion might have been drawn, is true j but it is equally true, that there was equally as much, if not more, that the injury arose from water exuding through the deck, on which the salt was stored.

The motion is dismissed.

Evans, Wardlaw and Frost, JJ. concurred.

Whitner, J. absent.

Motion dismissed.  