Cunningham v. Butler. , 3 N.C. 392 ( 1806 )

Plaintiff's counsel argued that such evidence was not admissible, for the reasons stated in Miller v. Ireland, 1 N.C. 222. 7 T., 159. WhereuponHamilton, for the defendant, cited 1 Dallas, 16; Gel., 116; 2 Dallas, 196; 1 Dallas, 317; Weskett, 232; 1 Dallas, 318, 6, 9, 10; Weskett, 433, 430; 2 Valins, 222; Park 139; Muse's case, 12 Reports, 63. If a protest can be evidence in any case, it cannot be so for the captain. What is a protest? An account of the vessel and cargo given on the oath of the captain and sailors, before a notary. Suppose the captain had come to this Court and made an oath for his exculpation, it would not be received. Why, then, receive an exculpatory account of himself, taken under circumstances more unfavorable to truth? If we must receive the oath of the captain to discharge himself, why not also the oath of a defendant that he has paid the debt, or that he did not commit an assault? Such is the situation of our commerce that our merchants are obliged to employ many foreign sailors; they are a class of men who consider custom-house oaths, in relation to commercial business, as a mere ceremony. I do not say this of all of them, for I know of some honorable exceptions, but as a general rule these remarks are correct. Shall the property of our merchants be disposed of by such oaths as these, made in the absence of the party to be affected by them, and when no one for him is on the spot to cross-examine the deponents? I am decidedly of opinion that the protest cannot be given in evidence for the captain.

NOTE. — See Miller v. Ireland, 1 N.C. 222.