Neilson v. Columbian Insurance Co.

A new trial must be awarded with costs to abide the event of the suit. The charge of the judge, as stated in the case was clearly wrong. So long as the corn physically existed, there could not be a total loss. Though good for nothing, the defendants were not liable, being protected by. the clause in the memorandum. The direction was contrary to our determination in Maggrath and Higgins v. Church. It ought also to have been *111left to the jury, as a material point whether the vessel could not have been repaired at the Cape de Verd Islands, so as to perform her voyage. This does not appear to have been distinctly submitted.

I think when the underwritten wishes a jury to find for him, on account of a loss of voyage from the vessel’s not being able to reach her port, or for want of repairs, it ought to be very fully shewn. There was no survey in this case ; and though I do not say, that fact is absolutely necessary, yet it is always a circumstance evincive of good faith.