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from the files of the court after the first term, and will not produce it, the opposing party may read a copy thereof in evidence. The admission of improper testimony in relation to a particular fact, but which fact is wholly immaterial to the issue, furnishes no cause for a new trial. THIs was an action of assumpsit on a policy of insurance, bearing date July 17, 1833, upon the schooner called the Mary, and owned by the plaintiff, for the term of one year, commencing on the 11th of said July; the sum insured being $3000. The schooner, during the year, viz. June 10, 1834, was totally lost. It appeared on trial, that a sloop was built in 1816, and was enrolled by the name of the Sophronio, and was again enrolled in the custom house in Portland, by the same name, March 24th, 1832; that the said schooner Mary was built upon the keel, floortimbers, and naval-timbers of the sloop Sophronio, and the size enlarged nearly 12 tons, and the name of the Mary given to her after being so enlarged; and that this was known to the defendants at the time of executing the policy; and that the certificate of the builder of the vessel was procured by the plaintiff, and presented to the custom house, to obtain the enrollment of the schooner Mary, without any intent to deceive or defraud, but with fair and honest intentions, as the jury believed; but that the enrollment of the sloop Sophronio was not first surrendered and delivered up at the custom house, before the issuing of the enrollment of the Mary, which was on the third day of June, 1833. The counsel for the defendants objected to the admission in evidence of the said enrollment of June 3d, 1833, as contrary to the laws of the United States; but EMERY J., before whom the trial was, overruled the objection, and it was admitted. And the same counsel further insisted, that said schooner, on the voyage on which she was lost, was sailing under circumstances rendering her liable to forfeiture for the violation of said laws; and that therefore a policy on a vessel, pursuing such a voyage, was not valid or legal, or binding; but the judge also overruled this objection, as insufficient to bar said action. To prove a loss of the vessel within the terms of the policy, the plaintiff offered, in addition to other evidence,
to read to the jury a copy of the deposition of James L. Young. The original deposition had been taken at the request of the defendants, to be used in the action prior to a former term of this court, at which a trial took place, but was withdrawn by the defendants, though not during the term for which it was taken, and was not used at the former trial, Young being then present and sworn as a witness for the plaintiff. The admission of such copy was objected to by the defendants' counsel; the plaintiff's counsel at the same time calling for the production of the original, but it was not produced. The presiding judge overruled the objection, and admitted it in evidence. The plaintiff also offered a witness to prove that Benjamin Knight, who was one of the directors of said Insurance Company, then, and also at the time said insurance was effected, some short time after the loss of the schooner, on the 10th of June, 1834, stated, that he, said Knight, and the other directors of the Insurance Company, knew, when the policy was effected, that the schooner was not a new vessel, but was the old sloop Sophronio, built upon; to the admission of this testimony, the counsel for the defendants objected, inasmuch as said Knight was living in Portland, and might be examined by the plaintiff, as a witness; but the judge overruled the objection, and the evidence was admitted. And afterwards, the said Knight, having sold out his stock, was offered and admitted a witness on the part of the defendants, and contradicted the testimony of the witness. The defendants then offered to read to the jury the depositions of Messrs. Parsons, Weare and Freeman, which were taken upon due notice, and the counsel for the plaintiff was present at the taking of the same. These depositions contained certain declarations, testified to by them to have been made by Joseph Bean, who was on board said vessel just before she sunk and was lost. These declarations were contended by the defendants to have a tendency to support the charge, and warrant the conclusion of gross negligence in the management of the vessel, such as to discharge the defendants, and were comprised in the body of the depositions; and without any objection made thereto at the time, in answer to questions put by the defendants' counsel, to which no objection was then made ; and in answer to the questions put by the plaintiff's counsel, without any restrictions or limitations; and the defendants' counsel contended, that such declarations and answers were allowable to be read to the jury, inasmuch as no objections were made to them, or to the questions of the plaintiff at the time they were taken, and such as were in answer to questions proposed by the plaintiff. But the judge ruled, that such declarations and answers were not admissible in the cause, and excluded them. The plaintiff read to the jury a contract between the plaintiff and Joseph Bean and John Polleys, the nature of which sufficiently appears in the opinion of the court; and it was proved, that said Bean was at Cape Neddock, near which the vessel sunk, while efforts were made by persons employed by the Insurance Company for the purpose of raising said vessel from the place where she sunk, in about seventeen fathoms of water. And the defendants’ counsel contended, that by the terms of said contract, Bean was the agent of the plaintiff at that time, and in such a situation, as to render his declarations admissible in evidence; and the defendants offered proof of said Bean's declarations, tending to show unseaworthiness of said vessel and gross negligence in the management of the vessel, and criminality of conduct in the circumstances occasioning her loss, and particularly what said Bean said were the wishes of the plaintiff as to having said vessel raised from the place where she was then laying; but the judge refused to admit proof of such declarations. The cause was thereupon submitted to the jury, who returned their verdict in favor of the plaintiff. To these opinions and rulings of the judge, the counsel of the defendants excepted.
Mellen and Daveis, for the defendants, in their argument, contended that the verdict should be set aside.
1. The papers showing the enrollment of this vessel, as the schooner Mary, were improperly admitted in evidence. Having been built on the sloop Sophronio, and the register of the sloop never having been delivered up, it was not the subject of enrollment under the laws of the United States, and not the subject of insurance. Act of congress respecting the registering of ships and vessels, c. 146, § 14, 27.
2. The policy in this case gives no right of action to the plaintiff, because an insurance on a vessel, subject to forfeiture for a violation of our own laws, is void. And it makes no difference whether the insurers are or are not conusant of this fact.' 3. The testimony of the declarations of Knight, tending to show, that the defendants knew this to be an old vessel built upon, with a new register, was improperly admitted. He was not an agent of the defendants. The declarations of a corporator, or director, cannot be given in evidence to charge a corporation. Besides, Knight was a competent witness for the plaintiff.” 4. The copy of Young's deposition was improperly admitted in evidence. If the original had been present, the plaintiff had no right to use it. The witness had been present in court and examined, and we could not use the deposition, nor could they. The rule of court, too, is peremptory, that we could not make use of the deposition, if we withdrew it.” The deposition was our property, and it never became a paper in the case. The rule of court on this subject does not profess to give to the other party a deposition taken by us, and would be against the statute, and not binding, if it did. The deposition is a different one from what it would be, if they took it, or he was called as a witness, by them. They could ask questions, when we took the deposition, which they could not, if they took it. In no case can a deposition be legally read, but by the party taking it. 5. The exclusion by the judge of the portions of the deposition which related to the declarations of Bean was erroneous. The objections extended to questions and answers, where no objection was made before the magistrate at the time the deposition was taken, and to questions asked by the plaintiff as well as by the defendants. All these were excluded by the judge. Certainly the answers to questions put by the plaintiff were proper evidence to be offered by us. The testimony of the declarations of Bean was proper, because Bean was the agent of the plaintiff"
* 3 Kent's Com. 3d ed. 262; Richardson v. M. F. & M. Ins. Co. 6 Mass. R. 102; Cook v. E. F. & M. Ins. Co. ib. 122; wheatland v. Gray, ib. 124; Breed v. Eaton, 10 Mass. R 21; Hayward v. Blake, 12 Mass. R. 176; Russell v. De Grand, 15 Mass. R. 35; 1 Phillips on Ins. 119, and cases there cited; Warren v. Man. Ins. Co, 13 Pick. 521; 2 Phillips on Ins. 113.
* Stark. on Ev. ed., of 1826, 41, and cases there cited; Hartford Bank r. Hart, 3 Day, 493; Masters v. Abraham, 1 Esp. R. 375; Helyar v. Hawke, 5 Esp. R. 72; Peto v. Hague, ib. 135; Framingham Man. Co. v. Barnard, 2 Pick. 532; 1 Phil. Ev. 74; Langhorn v. Allnut, 4 Taunt. 511; Haven e. Brown, 7 Greenl. 421; Alexander v. Mahon, 11 Johns. R. 185; Woodward v. Payne, 15 Johns, R. 493.
* Potter v. Leeds, 1 Pick. 309.
Fessenden and Deblois, for the plaintiff, after remarking that the jury had settled, that what took place in relation to the building and enrolling of the vessel was done in good faith and without fraud, and was known to the defendants, when the insurance was effected, said, that the true question on the first and main point was this: does the fact that the old enrollment was not given up, ipso facto, make the insurance on the vessel void? and contended, that it did not. Any difficulties and disabilities in relation to the government, which might subject the vessel to forfeiture, if the government chose to interfere, do not make void a contract of insurance, or other contract in relation to the same vessel, lawful in itself.”
The declarations of Benjamin Knight were rightly admitted in evidence:
1. Because he was a director, and a director is an agent of the corporation.”
* Potter v. Leeds, 1 Pick. 309; Talbot v. Clark, 8 Pick. 51; Woodman v. Coolbroth, 7 Greenl. 181; Alsop v. Com. Ins. Co. 1 Sumner, 451; Swett v. Poor, 11 Mass. R. 549; Denny v. Lincoln, 5 Mass. R. 385; Churchill v. Perkins, ib. 541; Wheeler v. Russell, 17 Mass. R. 258; Dwight v. Brewster, 1 Pick. 50; Little v. O'Brien, 9 Mass. R. 423; Waite v. Merrill, 4 Greenl. 102.
* Warren v. Man. Ins. Co. 13 Pick. 518; Law v. Hollingworth, 7 T. R. 156; Bell v. Bromfield, 15 East, 364; Lowell v. Roy. Ex. A. Co. 4 Taunt. 589; Dawson v. Atty, 7 East, 367; Bell v. Carstairs, 14 East, 374; Rich v. Parker, 7 Term R. 701; Ward v. Wood, 13 Mass. R. 589; Gremare v. Le Clerk, 2 Camp. 144; Freeman v. Walker, 6 Greenl. 68; Levy v. Merrill, 4 Greenl. 180; 3 Wash. Cir. C. R. 138; 1 Phil. on Ins. 119.
* 2 Stark. Ev. 56; 7 Greenl. 118; 2 Peters, 358; 12 Wheat. 468; 2 Stark. Ev. 60; 5 Esp. R. 145; 2 Esp. R. 511; 2 Stark. R. 180; 10 Johns. R. 38; 11 East, 578; 10 East, 395; 1 Camp. 22; 2 Root, 30; 7 Greenl. 76.