Opinion
APRIL TERM, 1789.
THIS was an action on a policy of insurance, upon the trial of which, Lewis, for the Plaintiff, offered to read in evidence a special verdict that had been given in another action upon the same policy, but against a different underwriter. Sergeant and Ingersol objected, that the verdict was given between other parties, and, therefore, not admissible; upon which Lewis proved an agreement of all the underwriters to be bound by one verdict.
The objection turns upon this principle, that the Defendant had no opportunity of cross-examining upon the former trial; and the answer is, that he, with the rest of the underwriters, had agreed to be bound by one verdict; which is certainly the only ground for offering the evidence proposed by the Plaintiff's counsel.
Whether this agreement was made in person, or by a Broker mutually employed, it is equally binding on the parties; and, under the agreement, all the underwriters were fully entitled to interfere upon the former trial, and to cross-examine the witnesses then produced. Although, therefore, we should not have allowed the special verdict to be read without full proof of the agreement; yet, on receiving that satisfaction, we think it would be unfair to suppress it; and, for the future, we desire, that all such agreements may be entered on the records of the Court.
The admission of this evidence, however, cannot be conclusive; as it is manifest, that testimony has been given on the present occasion, different from what was given on the former; and, consequently, a very different verdict may with great justice and propriety take place.