Boyce versus Moore

January Term, 1793. Boyce versus Moore. IN this action, which was brought on a Policy of Insurance subscribed the 8th of Sept; 1786, the plaintiff declared for a total loss, and offered in evidence the protest of the captain, made at Alexandria, on the 22d Sept. but it appearing that the captain, who had been taken up at sea from the wreck, had arrived at Newbury-Port in New-England on the 12th of August, and passed through Philadelphia on his way to Alexandria, before he made his protest, the evidence was objected to, the defendant insisting that the protest ought to have been made at the first port, and cited 1 Dall. Rep. 317. as in point. Levy contended, that where a protest is offered to excuse. the captain’s conduct, more strictness might be required. In Wesk. 432. it is Hated, that the protest must be made at any place, where the captain first arrives; but if that be impossible, he must make protest at any subsequent port. Here the captain Hates in his protest, that he could not make it for want of money to pay the fees; he lost every thing with the vessel. [MAJORITY — M'Kean, Chief Justice.] M'Kean, Chief Justice. Where there is no notary, a protest may be made before a magistrate. The excuse offered in this case, for not making the protest at the first port, would be a very flimsy one, even if proved by indifferent witnesses. Protests are only admitted from necessity; and the rule, which requires that they should be made at the first port, is a good one, to prevent abuses. If it be not practicable to make it at the first port, it must be made at the next, where it is practicable. This protest, therefore, cannot be received as evidence.