Russel v. Ball. amended declaration. If the twenty days are not out, he has only the remaining days within which to plead. But as, in this case, the attorney acted under a mistake, as to the practice, and swears to merits, we grant the motion, on payment of costs.(a) Motion granted.(b)(c) (a) See note (d) to M’Kinstry v. Edwards, supra, vol. 2, p. 113. (b) [Old note.] See Burrows v. Hillhouse, (6 Johns. Rep. 132.) (c) In cases of amendment, the rule to plead or answer, if notice thereof have been given, shall be from the day of the service of a copy of the pleading as amended, and on file. (Rule 26.) Where the plaintiff amends his declaration, the defendant has the full time to plead it, although he need not plead at all, unless the rule to amend be entered; and the service of an amended declaration, without a previous rule to amend, is a nullity, and will not prevent the defendant from proceeding to non pros; (1 Wendell, 67 ;) although no new rule to plead need be entered, or new notice given. (3 Wendell, 424; et vide, 3 B. & Ald. 137.) If the defendant have pleaded, before the amendment, inasmuch as the plaintiff is allowed to amend, at any time before his default in not replying has been entered, his first plea is considered at an end, and he must plead de novo to the amended declaration. (3 B. & Ald. 137. Grah. Prac. 2d ed. 653, 654. Burr. Prac. 2d ed. vol. 1, p. 369. See Code of Procedure of New York, § 148.) CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, IN APRIL TERM, 1802. HERBERT against HALLETT. Insurance on freight from New York to Havanna. The vessel, in a gale of wind, was stranded at Sandy Hook, but in three or four days, returned to New York, and the cargo, which was unladen and considerably damaged, was also brought back to New York, and delivered to the different shippers. The vessel was repaired in a fortnight, at the expense of about 120 dollars, and the plaintiff, soon after, sent her on a different voyage. It was held that the insured had no right to recover, as he ought to have insisted on carrying on the goods, so as to entitle himself to the freight; and having lost the freight by his negligence or folly, the insurers were not liable. If the ship be injured, by the perils of the sea, but capable of being repaired, in a reasonable time, the owner ought to repair her and continue the voyage, so as to claim his freight. If the ship be in a capacity to proceed on her voyage, and the goods are damaged, the owner will be entitled to his freight, if he offers to carry them on, unless the goods are physically destroyed. An insurer on freight engages that it shall be in the power of the insured to earn his freight, that is, that the subjects necessary to the earning of freight the ship and cargo, shall not be injured by any of the perils insured against, so that no freight can be earned. Per Radcliff, J. THIS was an action on a policy of insurance, on freight of goods on board the brig Eliza, from New-York to the Havanna. The freight was valued at 2200 dollars. The Herbert v. Hallett. Eliza sailed on the voyage, about the 20th of January, 1800, and having anchored in a small bay near Sandy-Hook, was driven on shore, in a gale of wind. The cargo was taken out by the plaintiff, and brought to New York. The brig was also brought back, about the third or fourth day after the accident. About two or three weeks from the time she first sailed, she was sent to a shipyard to be repaired; and, in about two weeks after, she was repaired, at the ex[*94] pense of 44 pounds 16 shillings, but a much larger sum would not have been sufficient to put the hull and spars in as good repair as when she sailed. The plaintiff soon after proceeded in the vessel, on a different voyage. There was no proof of an abandonment by the plaintiff. The vessel was fully laden when she sailed. of lading were produced at the trial. Four bills 1. For the plaintiff's own property, containing, among other things, 22,000 feet of lumber, some provisions, wine, 12 casks of porter, shooks, 45 casks of herrings, and 40 casks of bread. There was no invoice, or proof of the value of the articles, or what became of them, nor what was the proportion of the freight of them. It was, however, proved, that the casks of porter were stove and some bottles broke, and that the shooks were broke. 2. For John Hughes' shipment of articles of different kinds, (fish, wine and raisins,) the invoice of which was about 900 dollars, and the freight marked on it was 345 dollars. It was proved that great part of the fish and raisins were spoiled and destroyed, and that part of the cargo belonging to Hughes was abandoned to the underwriters and sold at auction, for their benefit, for about 300 dollars. 3. For 14 barrels of pork; but there was no account of the value, nor what became of them, nor of the amount of the freight. 4. For onions to the value of 70 dollars, which, on their return to New York, were not worth the cartage. It was the opinion of the shipper of the onions, who was acquainted with the cargo, before the brig sailed, and who Herbert v. Hallett. received the goods into his store, on their return, that most of the cargo was much damaged, and the voyage so broken up as not to be worth pursuing. On these facts, the jury found a verdict for the defendant. A motion was made for a new trial, on the ground that "the plaintiff was entitled to recover either a to- [*95] tal or an average loss. Hopkins, for the plaintiff. Pendleton and Hamilton, contra. RADCLIFF, J. A motion has been made for a new trial, and the general question is, Whether the plaintiff be entitled to recover any, and what part of the freight insured. An insurer on freight engages that it shall be in the power of the insured to earn his freight, that is, that the subjects necessary to the earning of freight, the ship and cargo, shall not be injured by any of the perils insured against, so that no freight can be earned. If the ship and cargo both remain in a state to continue the voyage, it is in his power to earn freight, and he ought to proceed. If by any injuries, either to the ship or cargo, the voyage be so broken up that no freight can be earned, the plaintiff ought to recover a total or partial loss, as he may or may not have earned freight, pro rata itineris. If the injury be confined to the ship, and that can be repaired in a reasonable time, it is the duty of the owner to make such repairs, and to continue the voyage and earn his freight. On the other hand, if the injury be sustained by the goods alone, and the ship be in a capacity to proceed, the owner of the ship will still be entitled to perform the voyage, and recover his freight, unless the goods be physically destroyed. If these principles be correct, the first inquiry in the present case is, whether the ship was in a capacity to proceed, or whether the injury was such as might have been repaired in a reasonable time, in relation to the intended voyage, and at a reasonable expense. The circumstance of the ship Herbert v. Hallet. If being obliged to return to the port from whence she [*96] sailed, does not alter the application of this rule. The voyage had actually commenced on which the right to freight attached, and the return to New York was the same as if she had been driven into any other port. It appears that she was, in fact, repaired at a moderate expense, within a fortnight, and proceeded on another voyage. the goods were in a condition to be reshipped, a detention for that period would not, in my opinion, be sufficient to justify an abandonment of the voyage. It was still incumbent on the owner to use due diligence in endeavoring to repair her, instead of which it appears that he suffered the vessel to remain two or three weeks, without taking any measure for that purpose, and, for aught we know, without any wish or idea of pursuing the voyage. On account of the ship, therefore, I think there was not such an impediment as would authorize an abandonment of the voyage, and prevent her from earning freight. 2. With regard to the cargo; its total value, or the degree of injury it received, cannot be ascertained, from any thing stated in the case. The lumber could not have been injured, but all the other articles were perishable in their nature, and probably so much damaged as, according to one of the witnesses, to render the voyage, on their account, not worth pursuing. Still they physically remained, and were either retained by the shippers, or abandoned to the underwriters, and sold for their benefit. As between the owner of the ship and the proprietor of the goods, there was not, therefore, a total loss. Between them no loss is total, where the property remains, or any part is saved, and taken by the owner to his own use. It requires an absolute destruction of the subject to render the loss, in this respect, total. That not being the case, with regard to any of the property, in this instance, and the ship being in a condition to be repaired, and the plaintiff having a right so to do, and to perform the voyage, he ought to have proceeded, and the owners [97] had no right to demand of him the restoration of "the |