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 reversed [*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. 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 scaworthiness 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 M'Lanahan v. The Universal Insurance Co. 1 P. the verdict of the jury ought to be for the defendants." Nine different instructions were then prayed for on behalf of the plaintiffs, which were all refused by the court, upon the ground that the opinion already given disposed of the whole cause upon its merits. If that opinion was correct, this refusal was entirely justifiable, for the court was under no obligation to discuss or decide other points when the plaintiffs' case was already shown to possess a fatal defect. The general question, then, before this court, is upon the propriety of the instruction so given to the jury. A suggestion has been thrown out at the bar that this instruction was not intended to be positive and absolute, but merely advisory to the jury; that it was not meant to take away the right of the jury to decide freely on the facts, but merely to offer for their consideration those views which the court had arrived at, and which it might at all times properly suggest to the jury. It is doubtless within the province of a court, in the exercise of its discretion, to sum up the facts in the case to the jury, and submit them, with the inferences of law deducible therefrom, to the free judgment of the jury. But care should be taken in all such cases to separate the law from the facts, and to leave the latter, in unequivocal terms, to the jury, as their true and peculiar province. We do not, however, understand that the present instruction was in fact, or was intended to be, merely in the nature of advice to the jury. It is couched in the most absolute terms, and imposed an obligation upon the jury to find a verdict for the defendants. It assumed there were no disputable facts or inferences proper for the consideration of the jury upon the merits, and that, upon the unquestioned facts, the plaintiffs had no legal right of recovery. It is in this view that it is open for the consideration of this court, and in this view it will now be discussed, as it was discussed in the argument at the bar. Four grounds have been presented to justify the opinion of the circuit court, which, it is said, are apparent from the record itself, and each of them is decisive upon the case. The first is 'the unseaworthiness of the ship at the time when she [ 183 ] broke ground at Havre, and commenced the homeward voy age, by reason of the master and a sufficient crew not being then on board. The second is the laying off and on near the port of Havre, after departure on the voyage, for several hours, waiting for the master to come on board, which, it is said, was an improper detention, and amounted to a deviation. The third is the omission of Coiron to communicate to his agent or other persons in America the knowledge of the loss, by the way of Havana, so as to countermand the order of insurance, which it contended was a fatal omission of duty. M'Lanahan v. The Universal Insurance Co. 1 P. The fourth is the omission to mention the time of the vessel's sailing from Havre, in the letter of the 20th October, ordering the insurance, which, whether fraudulent or not, was a material concealment, and misled the underwriters in the same manner as if there had been a representation that the time of the sailing was uncertain. It is to be considered that these points do not come before this court upon a motion for a new trial after verdict, addressing itself to the sound discretion of the court. In such cases, the whole evidence is examined with minute care, and the inferences which a jury might properly draw from it are adopted by the court itself. If, therefore, upon the whole case, justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. The reason is that the application is not matter of absolute right in the party, but rests in the judgment of the court, and is to be granted only when it is in furtherance of substantial justice. The case is far different upon a writ of error, bringing the proceedings at the trial, by a bill of exceptions, to the cognizance of the appellate court. The directions of the court must then stand or fall, upon their own intrinsic propriety, as matters of law. The first and second points appear to us, in the present case, to resolve themselves into matters of fact; and the facts are too imperfect and too general to enable the court to draw any legal conclusion from them, either as to seaworthiness or deviation. There is no doubt that every ship must, at the commencement of the voyage insured, possess all the qualities of seaworthiness, and be navigated by a competent master and crew. But how is this court to arrive at the conclusion that the brig Creole was not in that predicament at the commencement of the present voyage? The argument assumes that the ship ought not to have got under weigh, or proceeded into the offing, until the master and all the crew necessary, not for that act, but for the entire voyage, were on board. If the law were so, we have no means of ascertaining what crew was actually [184] * on board at the time; nor whether the voyage was absolutely intended to be commenced on that day; nor whether the departure was merely contingent and dependent upon the mas ter's procuring the proper ship's papers, and the breaking ground, and standing off and on in the offing, were preparatory steps, only for this purpose; nor whether for such purposes the pilot and crew on board were not amply sufficient. But we are far from being satisfied that the law has interposed any such positive rule as the argument supposes. Seaworthiness in port, or for temporary purposes, such as mere change of position in harbor, or proceeding out of port, or lying |