The same remarks may be made of a log-book.1 We should say, however, that the insured might, at their own discretion, and their own peril, refuse to exhibit either the survey or the log-book, or both. The parties may agree that the survey shall be evidence, and even conclusive evidence, as to certain facts. And it seems to be held, that this is the case where the policy contains the not uncommon clause, that "if the vessel shall be declared by a regular survey, unseaworthy by reason of being rotten or unsound or unseaworthy," the insurers shall be discharged. But the effect of this provision seems, perhaps, to be confined to the case where the survey finds, not merely that the vessel is rotten, but that the loss or condemnation of the vessel is caused by such rottenness.2 A protest, though a very important document, is not admissible in evidence in chief, but may be used to contradict the testimony of the persons who signed it.3 The rule is different in some of our States.4 1 The log-book of a party is never admissible in his own favor. The Sociedade Feliz, 1 W. Rob. 303, 311. If it is in the case, it is strong evidence against the party to whom it belongs, if it contains entries against his interest, and is received with suspicion, if it is in his favor. L'Etoile, 2 Dods. 106, 113; The Eleanor, Edw. Adm. 135, 163. In a suit brought by a vessel, warranted to sail with convoy, against its insurer, the latter was allowed to put in the log-book of the convoying vessel to prove the time of sailing. D'Israeli v. Jowett, 1 Esp. 427. And in Watson v. King, 4 Camp. 272, the log-book of the convoying vessel and the official letter of the captain at the end of the voyage, were admitted without objection. 2 See ante, p. 130, 131. 3 Christian v. Coombe, 2 Esp. 489; Senat v. Porter, 7 T. R. 158; Scriba v. Ins. Co. of North America., 1 Wash. C. C. 408, note; Lamalere v. Caze, id. 413; Winthrop v. Union Ins. Co., 2 id. 7; Marine Ins. Co. v. Stras, 1 Munf. 408; Patterson v. Maryland Ins. Co., 3 Harris & J. 71. See also, Ruan v. Gardner, 1 Wash. C. C. 145. * In Pennsylvania, in an early case, where an action of covenant was brought by the owners of a vessel against the charterers, a protest was admitted in evidence. Nixon v. Long, 1 Dall. 6, 3 Binn. 228, note. It must, however, have been completed within twenty-four hours after the ship's arrival, and it is not sufficient that it was noted in that time, and afterwards completed. Fleming v. Marine Ins. Co., 3 Watts & S. 144. In South Carolina, a protest is also admissible in evidence. Campbell v. Williamson, 2 Bay, 237. But it may be discredited by evidence of inconsistent declarations on the part of those who signed it. Church v. Teasdale, 1 Brev. 255. A settlement with one insurer is not evidence in an action against another independent insurer, although of the same property against the same risks.1 Nor is a party bound, in an action on a policy, by a statement of facts made or agreed to, for the court in an action upon any other policy, although upon the same subject-matter.2 So, an affidavit of loss under one policy, wherein an insured declared that he has no other insurance, does not prevent his asserting an interest under another policy, whereby his and another party's interest is insured.3 It has been held, that a knowledge by the agent of the underwriters, when the policy is made, of a breach of an express warranty, is inadmissible as evidence of their waiver of the defence arising from the breach. But there must be important qualifications to this rule.4 Some interesting decisions have been made as to the burden of proof in actions on policies. Thus, a plaintiff must prove that a policy was made for his benefit, if he be not expressly insured.5 And he must prove, that he gave authority, if the insurance was effected by his agent, unless where his bringing the action is a sufficient adoption of the insurance. But if a loss is paid to a party insured, on a policy for the benefit of another, that other may recover the money from the party receiving it, without proof of authority or adoption.7 If insurers rely upon a concealment, they must prove it; but they discharge this burden and cast it on the insured, by proving that the insured knew a material fact, which would have certainly made the premium greater than it actually was.9 Evidence of extreme exaggeration of value, is admissible evi 1 Trenholm v. Alexander, 2 Brev. 238. 2 Elting v. Scott, 2 Johns. 157. 3 American Ins. Co. v. Insley, 7 Barr, 223. 4 Kennedy v. St. Lawrence Co. Mut. Ins. Co., 10 Barb. 285. 5 See cases ante, p. 31, n. 1. 6 See cases ante, p. 33, n. 6. 7 Miltenbergher v. Beacom, 9 Barr, 198. 8 Fiske v. New England Marine Ins. Co., 15 Pick. 310. • See Livingston v. Delafield, 3 Caines, 49; Elkin v. Janson, 13 M. & W. 655. dence on which to ground a charge of fraud.1 So is a refusal of the insured to permit an examination by the insurers, or their agents, of the property insured and said to be damaged; where the policy contains a clause giving the insurers the right to replace the property injured.2 1 See Ocean Ins. Co. v. Fields, 2 Story, C. C. 59, 77, and cases cited ante, p, 64, n. 2. 2 New York F. Ins. Co. v. Delavan, 8 Paige, Ch. 419. |