ing in such cases. [168]

pleadings; the granting and refusing new trials; | and most of the 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 and modes of practice. This court has always declined interferAfter the filing of a new count to a declaration, the defendant, who to the former counts has pleaded the general issue, or any particular plea, may withdraw the same, and plead anew, either the general issue, or any further or other pleas, which his case may require; but he may, if he pleases, abide by his plea already pleaded, and waive his right of pleading, de novo. The 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, it is deemed sufficient to cover the whole declaration; and puts the plaintiff to the proof of his case, in the new, as well as in the old counts. [169]

THIS

ror.

HIS was an action of ejectment, commenced in the Circuit Court for the District of West Tennessee, in 1813; by the lessee of Levi Hollingsworth, and John Kaighn, citizens of the State of Pennsylvania; against Henry Wright and others, the plaintiffs in error, and citizens of Tennessee. The declaration set forth a demise from Hollingsworth and Kaighn, to John Denn, the defendant in erA notice was served on the tenants in possession, who, at June term, 1813, appeared, and put in the plea of "not guilty.' At June term, 1817, after a jury had been sworn in the cause, the plaintiff suffered a non-suit; which was afterwards set aside; and the plaintiff had leave to add a new count to his declaration, upon condition that all the costs of the term should be paid by him, absolutely; and that he should pay all preceding costs, the same to be refunded, if he should ultimately succeed in 166*] the action. A new *count was then filed, in which is stated a lease from Benjamin Spencer, a citizen of Missouri. To this count no plea was filed; and, at June term, 1825, a trial was had, and a verdict and judgment were rendered for the plaintiff, upon the last count in the declaration.

This writ of error was brought to reverse the judgment.

Mr. White, for the plaintiff in error.

1. No plea was filed to the additional count in the declaration, upon which the trial was had, nor was there any other issue joined at the trial.

2. The amendment, authorizing a new lessor, ought not to have been allowed.

stating the demise from Benjamin Spencer, be-
fore them, and yet their verdict was upon it,
exclusively. (Adams on ejectment, 200, 205;
1 Caines' N. Y. Term. Rep., 153, 251.)
off, were, the payment of the costs of the term,
absolutely; and of all antecedent costs, which
were to be returned if a verdict should be ob-
tained by the plaintiff in the ejectinent. These
costs were to depend upon the issue between the
then parties; but the verdict in favor of the
plaintiff, upon the new count, condemned the
defendants to pay the whole costs, upon an
issue, not formed at the time the court took off
the non-suit; and upon the claim of a party,
not at that time known to the court.

The terms on which the non-suit was taken

It does not appear from the record that any ground was laid for the amendment, and the court ought to have been satisfied, before it was allowed; it would have been irregular to allow the amendment without terms.

On the institution of the suit, a capias ad respondendum, authorized by the act of Assembly of Tennessee, was issued, against the tenant in possession, and bail given to secure the damages which might be recovered; and the 'case stood upon the claims of the then actual parties in the cause.

*A new plaintiff could not be intro- [*167 duced, who could claim the benefit of the bail. (1 Scott's Revisal of the Laws of Tennessee.) Mr. Isaacs, for the defendants in error. No objections were made to this count, or to the issue at the trial; no allegation of surprise, but the defendants produced and examined their testimony; and the verdict was given without any exception to the pleadings.

1. It is not necessary that the record should show the grounds on which the court set aside the non-suit, and afterwards allowed the amendment; they are stated to have been done after motion, and a rule granted. The law of Tennessee authorizes the court to allow amendments, beyond the statutes of amendments, and jeofails, of England, “provided that the nature of the action shall not be changed; and all causes shall be tried, without being entangled in the nice formalities of pleading." (Act of Assembly of Tennessee of 1809, chap. 49.) And the courts of Tennessee have given a most liberal construction to this law.

2. A plea of not guilty " had been put in, and issue joined upon it. This plea traversed all the facts in the plaintiff's declaration, and made the traverse as broad as possible. The plea put in to the declaration, in its original form, was the proper plea to the new count.

3. It is not claimed, that the bail put in, when the suit was commenced, inured to the benefit of Benjamin Spencer.

Mr. Justice TRIMBLE delivered the opinion of the court:

To the new count in the declaration, which introduced a new lessor, Benjamin Spencer, and stated a demise from him; the defendants were not called upon to plead. The case remained from 1817, when the additional count was filed, until June term, 1825, when the trial took place; and the verdict of the jury was upon the new count, and nothing was said upon the former counts in the declaration. The verdict was therefore given, when no issue was This action of ejectment was commenced in joined; and the plea which had been put in the Circuit Court, held in East Tennessee, by originally, could not be applied without consent suing out a writ of capias ad respondendum, or notice to the defendants, to the new count. accompanied with the declaration; and the tenA new party had been introduced, and the de-ants in possession held to bail, to answer to the fendants should have been allowed an option, whether they would expose themselves to the expenses of a trial, upon the allegations in the additional count. The jury had not the count Peters 1. U. S., Book 7.

action, in a manner provided for by a statute of the State. The original declaration contained two counts; the first, on the demise of Hollingsworth and Kaighn, citizens of Pennsylvania;

7

97

the second, on the demise of Joseph Blake and Daniel Green, citizens of Massachusetts. The tenants appeared and pleaded not guilty," upon which issue was joined. A trial was had, and a nonsuit suffered by the plaintiff, which was set aside on the payment of costs. After these proceedings, the court, on the motion of the plaintiff, permitted the 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 pleaded, or a new plea to be filed, or to grant a new ings, 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*] *1st. Because, the count on which judgment was rendered against them does not show that Missouri is one of the United States. 2d. 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 with payment of costs.

3d. Because, no plea was filed to the new count, nor any issue made up thereon.

always declined interfering in such cases; accordingly it was held by the court in Wood v. Young (4 Cranch, 237), that the refusal of the court below to continue a cause, after it is at issue, is not a matter upon which error can be assigned. That the refusal of *the [*169 court below to grant a new trial, is not matter for which a writ of error lies (5 Cranch, 11, 187; and 4 Wheat., 220); and that the refusal of the court below to allow a plea to be amendtrial, 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 positionthat 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 The first objection was very properly not that the defendants, in such cases, must necespressed, in argument. The count alleges Ben-sarily plead de novo; or that judgment may be jamin 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.

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 fail

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 altera-ure to plead, and going to trial without objection in the suit; that the suit having been orig-tion, are held to be a waiver of his right to inally commenced under the state practice, by plead, and an election to abide by his plea; writ of capias ad respondendum, to which the and if it, in terms, purports to go to the whole former lessors only were parties, the amendment action, as is the case in this instance, it is was, in substance and effect, the institution of deemed sufficient to cover the whole declaraa new suit, or at least grafting a new one upon tion; and puts the plaintiff to the proof of his the old; and produced an incongruity upon the case, on the new as well as on the old counts. 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.

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. Judgment affirmed with costs. Cited-14 Pet., 626; 7 How., 718.

*JAMES J. M'LANAHAN, WIL- [*170 HELMUS BOGART, AND JOHN JOSEPH COIRON, Plaintiffs in Error,

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 THE discretion of the courts of original jurisdiction, as to be fit for their decision only, under their own rules 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

V.

UNIVERSAL INSURANCE COM-
PANY, Defendants in error.

Insurance-province of the court-writ of error
-seaworthiness-policy "at and from port"
-competent crew-concealment.

Insurance. 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 there

-

from, to the free judgment of the jury. But, care must 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. [182]

An application for a new trial, on motion after verdict, addresses itself to the sound discretion of the court; and if, upon the whole case, the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed on the trial. The application is not a matter of absolute right, but rests in the judgment of the court, and is to be granted only in furtherance of justice. On a writ of error, bringing the proceedings on the trial, by bill of exceptions, to the cognizance of the Appellate Court, the directions of the court below must then stand or fall, upon their own intrinsic propriety, as matters of law. [183]

and his leading opinion of the conclusion to which the facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or the inferences deducible therefrom, from the cognizance of the jury, but rather as an expression of opinion addressed to the discretion of counsel, whether it would be worth while to proceed further in the cause. And the like expression in summing up any cause to the jury, must be understood by them merely as a strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice; because, if the summing up has had an undue influence, the mistake is put right by a new trial, upon an application to the discretion of the whole court. This is so familiarly known, that it needs only to be stated, to be at once admitted. [190] The question of materiality of the time of the sailing of the ship to the risk, is a question for the

Every ship inust, at the commencement of the voyage insured, possess all the qualities of seaworthiness, and be navigated by a competent mas-jury, under the direction of the court, as in other ter and crew. [183]

Seaworthiness in port, or lying in the offing, may he one thing, and seaworthiness for a whole voyages, quite another. [184]

A policy on a ship, at and from a port," will attach, although the ship be, at the time, undergoing extensive repairs, in port; so as, in a general sense,

In the purposes of the whole voyage, to be utterly

unseaworthy.

What is a competent crew for the voyage-At what time such crew should be on board-What is proper pilot ground-What is the course and usage of trade, in relation to the master and crew being on board, when the ship breaks ground, for the Voyage-are questions of fact dependent upon nautical testimony, and exclusively within the province of the jury. [184]

The contract of insurance, is one of mutual good faith; and the principles which govern it, are those of an enlightened moral policy. The underwriter must be presumed to act upon the belief that the party procuring insurance, is not at the time in possession of any fact material to the risk, which he does not disclose; and that no known loss had occurred, which, by reasonable diligence, might have been communicated to him. [185] If a party, knowing that his agent is about to procure insurance for him, withholds information, for the purposes of misleading the underwriter, it is a fraud, and vitiates the insurance. [185]

Where a party orders insurance, and afterwards receives intelligence material to the risk, or has knowledge of a loss, he ought to communicate it to the agent, by due and reasonable dilligence, to

be judged under all the circumstances of each par-
ticular case, if it can be communicated; for the
purpose of countermanding the order, or laying
the circumstances before the underwriter. [185]
What constitutes due and reasonable diligence,
is a question of fact for the jury. [186]
171 *The accidental concealment of the time of
the sailing of a vessel, would not prejudice the in-
surance, unless material to the risk; if fradulently
intended, it might not mislead; and, whether
fraudulent or not, is matter of fact for the jury.
[188]

The material ingredients of a question of the importance of concealing the time of a vessel's sailing, are mixed up of nautical skill, information, and experience, and are in no sense judicially cognizable, as matters of law. It seems, that this question does not cease to be a question of fact, when the vessel is to sail from a port abroad. [188]

Little stress ought to be laid upon general expressions falling from judges, in the course of trials. Where the facts are not disputed, the judge often suggests, in a strong and pointed manner, his opinion as to their materiality and importance,

NOTE.-Marine Insurance. Fraud. Suppression of facts.

The concealment of material circumstances, vitiates all contracts upon the principle of natural law. (Comfoot v. Fowke, 2 Dow., 263; Hodgson v. Richardson, 1 W. Black., 465.)

In a representation to induce a party to make a contract, it is equally false for a man to affirm that of which he knows nothing, as to affirm that to be true which he knows to be false. (Per Lord Mansfield in Pawson v. Watson, Cowper, 785; Pasley v. Freeman, 3 Term R., 51.)

The insured is bound to represent to the underwriter all the material circumstances of the ship

cases. The court may aid the judgment of the jury, by an exposition of the nature, bearing, and pressure of the facts; but it has no right to supersede the exercise of that judgment, and to direct an absolute verdict as upon contested matter of fact, resolving itself into a mere point of law. [191]

THE action, in the Circuit Court for the Dis

trict of Maryland, was instituted by the plaintiffs in error, on a policy of insurance, in the usual form; and a verdict was rendered for the defendants, under the opinion of the court, upon the first of nine exceptions, taken by the plaintiffs.

Insur

The material facts in the case were: ance was effected in Baltimore, in the name of Thomas Tenant, to the amount of $10.000, on the brig Creole, for a voyage from Havre de Grace to New Orleans, with liberty to touch and trade at Havana. The policy was dated upon the 22d day of December, 1823. The insurance was made for the plaintiffs, the sole owners of the vessel, under the following circumstances:

John Joseph Coiron, one of the plaintiffs, while at Harve de Grace, on the 19th of October, 1823, addressed to Mr. John Stoney, of Charleston, the following letter:

HAVRE, October 19th, 1823. MR. JOHN STONEY, Charleston:

Dear Sir-Please to have insured, for my account, for the *account and risk of [*172 whom it may concern, ten thousand dollars on the brig Creole, of New Orleans, Captain Jacob Goodrich, for New Orleans, touching at the Havana. The brig and boats in the best order, fourteen berths; the crew are seventeen in all. having a round-house on deck, containing We intend sailing to-morrow. I have with me my family, consisting of two children and two nephews. The wind having shipped round suddenly, I write this in haste; my first will be more satisfactory to you, for particulars. new Georgia upland cotton, twenty sous; rice, thirty francs. Your devoted serv't and friend, JOHN JOSEPH COIRON.

The

and voyage. If he do not, though by accident only, or neglect, the underwriters are not liable; a fortiori, if he suppress, or misrepresent, from fraud. (Ratcliffe v. Shoolbred, Park Ins, 413; De Costa v. Scandret, 2 P. Wms., 170; Seaman v. Formereau, 2 Stra., 1183: Webster v. Forster, 1 Esp., 407; Foley v. Maline, 1 Marsh., 117; Fort v. Lee, 3 Taunt., 381; Berthon v. Longhman, 2 Stark., 58; Kirby v. Smith, 1 Barn. & A., 672; Westbury v. Aberdein, 2 Mees. & W., 267; Lynch v. Hamilton, 3 Taunt., 37; Lynch v. Durnsford, 14 East., 494; Hodgson v. Richardson, 1 W. Black., 463; McAndrews v. Bell, 1 Esp., 173; Fillis v. Brutton, Park Ins., 414; Carter v. Boehm, 2 Burr., 1905; Hildyard, Mar. Ins., 575–583.)

rich, from this port, back to New Orleans, *TUESDAY, OCTOBER 21, 1823. [*176 touching at the Havana. The vessel and boats

in the best order, having a roof on deck, round- H. K. COURSES. WINDS.
house, containing 14 berths, manned by 17
hands; you know the vessel. I have only to
add that I have made $1,000 worth more of re-
pairs and improvements on her.
She is now a