9th January, 1808.

delivered the resolution of the majority of the court, viz: Grimke, Waties, and Bat, Justices, Brevard, and Wilds, Justices, dissenting. That the defendant was intitled to a new trial. They were of opinion the indorsement on the policy ought not to have been received in evidence by the jury, although not objected to by the defendant; and that the evidence of a loss to the extent allowed by the jury was not sufficiently proved. The evidence of the sale of the vessel, was not, in their opinion, satisfactory as to her value at the time.

Brevard, and Wilds, Justices, expressed no opinion in court. It was their opinion, however, that the evidence which was before the jury, was properly allowed under all the circumstances of the case; and that upon the whole, it did not appear that the verdict was unjust.

In the course of the argument the following authorities were *241tilted. Park 55, 31, 164, 407, 400, 38, 228, 30. 1 D. and E. 187. 2 Marsh. 381. Peake’s Evid. 137. 1 New-York Term Rep. 54. Lex Mercatoria. Americana. 1 Bin. The jury may estimate the value of the spe recuperandi, and deduct that from the whole value" .