having been of counsel with the plaintiff, while at the bar, gave no opinion.

Two reasons have been assigned as grounds for a new trial- in this case. 1. That the brig Montgomery was not seaworthy at the time of sailing from Nezvbern in North Carolina, on the voyage intended to be insured. 2. That the jury were charged by me, and actually found their verdict, as if the insurance had been made on a valued policy.

The first ground was not pressed on the motion for the new trial, but a desire was expressed, that the evidence on that point should be reconsidered. I have maturely considered that evidence, and see no reason for retracting the opinion, which I formed on the trial. I am fully satisfied, that the weight of the testimony, both positive and presumptive, preponderated much in favour of the seaworthiness of the vessel. The question was fairly submitted to the jury.

2. The action was brought against the defendants as agents and factors, for neglecting to insure 3000 dollars on the brig-pursuant to the orders of George Ellis the plaintiff’s correspondent, although they had ample funds in their hands for that purpose. Their liability in damages was fully admitted *208in their letter of 29th October 1801, and candidly conceded ' by their counsel upon the trial. It is also admitted on the other side, that the defendants may legally avail themselves of every defence, which underwriters might urge in case they had subscribed the policy. From the words made use of in a policy, we are enabled to ascertain, whether it is to be denominated a valued or open one. We have no such instrument here to judge upon. The basis of the suit is the negligence of the defendants in not procuring a policy to be effected. Our judgments therefore can only be formed from the expressions contained in the letter of Ellis of the 6th June 1801 directing the insurance to be made. After directing the insurance and describing the vessel, her burthen, and the meditated voyage, he says, “ Charge the premium “ to my account, and advise me thereof. The brig he [Miner) “ values at 4000 dollars, but wishes to have 3000 dollars (say “ three fourths) insured.” It is true, the writer does not order a valued policy, eo nomine, to be effected; but we may collect his meaning from the plain import of his words, and -whatever may be determined to be his fair meaning, will fix the extent of the defendants’ responsibility. The insurance was to be made on three fourths of his valuation, and this necessarily conveys the idea, that he wished for a valued policy. By adopting the construction contended for by the defendants’ counsel, we render the words he values 'k.c. wholly inoperative. If the brig had reached her destined port in safety, and she had been insured at 4000 dollars, when in reality, she had been worth but 2000 dollars, the plaintiff could never expect a return premium.

In fact, the jury have not awarded the full damages as on a valued policy. Making a deduction of three fourths of what the brig sold for in the West Indies, the premium and every customary allowance made to underwriters, it will be found that the balance and interest thereon will surmount the sum found between three and four hundred dollars.

I think therefore the defendants have no reason to complain of any injustice done to them, and that judgment^ be entered for the plaintiff on the verdict. '

New trial refused, and Judgment for plaintiff.