Buck v. The Chesapeake Insurance Co. 1 P.

have, therefore, no doubt of the sufficiency of the insurable interest in this case.

The last prayer, on which the court below divided, is in these

"That the court instruct the jury that the letter of the 27th April, 1822, with the order written thereon, do not, in law, amount to a representation that the property to be insured was the sole property of Daniel Fitch; or that the whole, or any part thereof, was not belligerent."

We have already expressed our opinion on the proposition here presented. It is to be regretted that this prayer, also, is so defective in precision. But it was obviously intended, and so argued, to be confined to a representation which would vitiate the policy. With

relation to the first policy, we are all of opinion that it was [*164] unaffected by the letter specified; and, *with regard to the second policy, whatever might have been the effect of this letter, had it stood alone, yet, taken in connection with the concomitant circumstances, it was not fatal to the contract.

On this point, a majority of the court would be understood to express the opinion that this letter, connected with the order indorsed upon it, the previous insurance referred to, and considered in relation to the state of the world, and the nature, character, and ordinary conduct of the voyage insured, was not such a representation, as, per se, vitiated the policy.

And this opinion will be certified to the court below.

This cause came on, &c.; on consideration whereof, this court is of opinion: 1. That as the policies of insurance in this cause purport to insure the plaintiffs "for whom it may concern," they are not bound to prove that, at the time of effecting the said insurance, or any other time, they disclosed to the defendant that Spanish property was intended to be covered by the said insurance, unless inquiries on the subject were propounded by the insurer, prior to the insurance. 2. That if the jury believe the policy of the 6th of May, 1822, was founded on the order of the same date, the said policy being "for whom it may concern," does cover belligerent as well as neutral interest. 3. That if the jury believe that the policy dated 24th of May, 1822, was founded on the letter of the 27th of April, 1822, and the order written thereon, the policy being "for whom it may concern,' does cover neutral as well as belligerent property. 4. That if the said Daniel Fitch, at the time of the date of the said policies, was legal and equitable owner of part of the cargo insured, and legal though not equitable owner of the residue, the policies being " for whom it may concern," do cover the entire cargo; and that the said Fitch

Wright v. The Lessee of Hollingsworth. 1 P.

had a good insurable interest in the whole cargo; and the plaintiffs, as his agents, are competent to recover the whole sum insured thereon, on proof of such legal and equitable interest in the said Fitch. 5. That the letter of the 27th of April, 1824, whatever might be its effect if taken alone, yet, taken in connection with the indorsement thereon, with the previous policy to which it refers, the actual state of the world, &c., and the nature of such transactions, is not such a representation as vitiates the policy. All which is ordered and adjudged by this court to be certified to the said circuit court.

8 H. 234.

HENRY WRIGHT, WILLIAM CAROTHERS, ROBERT DENNISTON, WILLIAM PATTON, THOMAS BURMAN, and JAMES ROBERTSON, Plaintiffs in Error, v. The Lessee of LEVI HOLLINGSWORTH and JOHN KAIGHN, Defendants in Error.

1 P. 165.

An allegation that the lessor of the plaintiff is a citizen of the State of Missouri is sufficient, without an averment that Missouri is one of the United States.

This court will not review the decision of a circuit court allowing a new count to be filed, in an action of ejectment, alleging a demise by a lessor not named in the old counts, nor its refusal to allow costs on the leave to amend.

When a new count is filed, the defendant has a right to plead de novo; but if he goes to trial on the old plea, which puts the whole declaration in issue, there is no error.

THE case is stated in the opinion of the court.

White, for the plaintiff.

Isaacs, contrà.

[ * 167 ]

TRIMBLE, J., delivered the opinion of the court. This action of ejectment was commenced in the circuit court held in East Tennessee, by suing out a writ of capias ad respondendum, accompanied with the declaration, and the tenants in possession held to bail to answer to the action, in the manner provided for by a statute of the State. The original declaration contained two counts: the first, on the demise of Hollingsworth and Kaighn, citizens of Pennsylvania; the second, on the demise of Joseph Blake and Daniel Green, citizens of Massachusetts.

The tenants appeared and pleaded not guilty, upon which issue was joined. A trial was had, and a nonsuit suffered by the plaintiff, which was set aside on the payment of costs. After these pro. ceedings, the court, on the motion of the plaintiff, permitted the

Wright v. The Lessee of Hollingsworth. 1 P.

declaration to be amended, by adding a count on the demise of Benjamin Spencer, a citizen of Missouri, The parties went to trial without any other pleadings; and, a verdict having been found for the plaintiff, upon the third or new count, judgment was thereon rendered in his favor, to reverse which the defendants have prosecuted this writ of error.

They allege the judgment is erroneous and should be re

versed

[*168] 1. Because the count on which judgment was rendered against them does not show that Missouri is one of the

United States.

2. Because the court permitted the declaration to be amended by adding a new count, on the demise of Benjamin Spencer, and especially as the amendment was permitted without payment of costs.

3. Because no plea was filed to the new count, nor any issue made up thereon.

The first objection was very properly not pressed in argument. The count alleges Benjamin Spencer to be a citizen of the State of Missouri. This count was filed after Missouri was admitted as a State into the Union; and there can be no question but that this and every other court in the nation are bound to take notice of the admission of a State as one of the United States, without any express averment of the fact.

In support of the second objection, it is urged that the admission of the new count, on the demise of a new lessor, made a material alteration in the suit; that, the suit having been originally commenced under the state practice, by writ of capias ad respondendum, to which the former lessors only were parties, the amendment was, in substance and effect, the institution of a new suit, or at least grafting a new one upon the old, and produced an incongruity upon the record; the first and second counts and the proceedings on them, being proceedings under the statute, and the third or new count a proceeding at common law; and that, according to established principles of practice, it should have been allowed, if at all, only on payment of costs.

This argument would be entitled to great and perhaps decisive influence, if addressed to a court having any discretion or power over the subject of amendments.

But the allowance and refusal of amendments in the pleadings, the granting or refusing new trials, and, indeed, most other incidental orders made in the progress of a cause before trial, are matters so peculiarly addressed to the sound discretion of the courts of original jurisdiction, as to be fit for their decision only, under their own rules

Wright v. The Lessee of Hollingsworth. 1 P.

and modes of practice. This, it is true, may occasionally lead to particular hardships; but, on the other hand, the general inconvenience of this court attempting to revise and correct all the intermediate proceedings in suits, between their commencement and final judgment, would be intolerable. This court has always declined interfering in such cases; accordingly it was held by the court, in Wood v. Young, 4 C. 237, that the refusal of the court below to con tinue a cause after it is at issue, is not a matter upon which error can be assigned; that the refusal of the court below [* 169 ] to grant a new trial is not matter for which a writ of error lies (5 C. 11, 187, and 4 W. 220); and that the refusal of the court below to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a cause, cannot be assigned as a cause of reversal or a writ of error. We can perceive no distinction in principle between these cases and the one before the court. We must take the declaration, including the amendment, as we find it on the record. Nor can we interfere because the court below did not, as it ought, require the costs formerly accrued to be paid as a condition of the amendment.

The authorities cited by the learned counsel do not, we think, support his last position, that the judgment is erroneous because a plea was not filed to the new count. They prove, unquestionably, that, upon the amendment being made to the declaration by adding a count, the defendants had a right to plead de novo; they prove nothing more. They do not show that the defendants in such cases must necessarily plead de novo, or that judgment may be entered by default for want of a plea to the new count, if, before the amendment, he has pleaded the general issue. We think the practice is well settled to the contrary. The defendant has a right, if he will, to withdraw his former plea, and plead anew either the general issue or any further or other pleas which his case may require; but he may, if he will, abide by his plea already pleaded, and waive his right of pleading de novo. His failure to plead, and going to trial without objection, are held to be a waiver of his right to plead, and an election to abide by his plea; and if it, in terms, purports to go to the whole action, as is the case in this instance, it is deemed sufficient to cover the whole declaration, and puts the plaintiff to the proof of his case on the new, as well as on the old counts.

This is the general doctrine in other forms of action, such as trespass and assumpsit; and we see no reason to distinguish the action of ejectment, or take it out of the general rule.

VOL. VII.

Judgment affirmed, with costs.

14 P. 614; 7 H. 706.
44

M'Lanahan v. The Universal Insurance Co. 1 P.

JAMES J. M'LANAHAN, WILHELMUS BOGART, and JOHN JOSEPH COIRON, Plaintiffs in Error, v. THE UNIVERSAL INSURANCE COMPANY Defendants in Error.

1 P. 170.

On a motion for a new trial, if, upon the whole case, justice has been done, and the verdict is substantially right, no new trial is granted, though some mistakes may have been made. Aliter on a writ of error, for then the judgment must be reversed if any erroneous ruling appears by the record to have entered into it.

Seaworthiness for lying in port may be quite a different thing from seaworthiness for a voyage.

Seaworthiness and deviation are mixed questions of fact and law, and the aid of a jury is generally necessary to their decision.

If a party who has ordered insurance has information of a loss, he is bound to use due and reasonable diligence to make it known to his agent, and to countermand his order. What is such diligence depends on the circumstances of each case, and is principally matter of fact for a jury.

The question of materiality of the time of sailing, to the risk, is a question of fact for the jury. So are the questions, whether an omission to state the time was fraudulent, and whether it misled the underwriter.

THE case is stated in the opinion of the court. The record detailed all the evidence offered by the plaintiff in the court below, and which that court ruled was insufficient to enable the plaintiff to recover. As the opinion of this court proceeded on the ground that this evidence ought to have been submitted to the jury, and gives a statement of the nature and tendency of the evidence, it is not deemed necessary to set it out at large in the report.

Taney and Meredith, for the plaintiffs.

Wirt (attorney-general) and Ogden, contrà.

[ *181 ]

* STORY, J., delivered the opinion of the court.

This is a writ of error to the circuit court of the district of Maryland. The original action was brought by the plaintiffs in error against the defendants, upon a policy of insurance [ *182] underwritten by the defendants, whereby "they caused Thomas Tenant, for whom it may concern, to be insured, lost or not lost, at and from Havre de Grace to New Orleans, with liberty to touch and trade at Havana," $10,000 upon brig Creole and appurtenances. The declaration averred the interest in the plaintiffs, and a total loss by the perils of the seas. The defendants pleaded the general issue; and upon the trial, after the whole evidence on both sides had been given in, the court, upon the prayer of the defendants' counsel, instructed the jury" that, upon the whole evidence in the case" as stated, the plaintiffs are not entitled to recover, and