#### THE MARINE INSURANCE COMPANY OF ALEXANDRIA v. HODGSON.

The refusal of an inferior court to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a case, cannot be assigned as error.

After a cause is remanded to the inferior court, such court may receive additional pleas, or admit amendments to those already filed, even after teh *applellate court has decided*such pleas to be bad upon demurrer.

In an action of *covenant*on *a policy under seal,*all special matter of defence must be pleaded. Under the plea of covenunts performed, the defendant cannot give evidence which goes to vacate the policy.

In *order to*prove the condemnation of a vessel it is only necessary to produce *the libel and sentence.*

It is a useless *207practice to read the proceedings at lenght. The depositions stated in such proceedings are not evidence in an action upon the policy of insurance.

*206ERROR to the circuit court of the district of .Co1 lnmk:„ U-imDia*

former judgment of the court below in’ this cause, in favour of the now plaintiffs in error,' having been* reversed in this court, and the cause sent back for the trial of’ th'e issues o( fact,* the plaintiffs in error,, before the cause could be regularly called for trialaccording to the rules and practice of the court, moved the court below' for' Ieavé 'to amend the pleadings by adding' to the former, .eight pleas, a *ninth*and a *tenth*plea, in the words ’following :

9th plea. And the said defendants, by their attorney aforesaid, by leave of the court, and by virtue of the statutes m such cases made and provided, ,ior iurther -plea in this behalf say, that the said plaintiff ought not to have and maintain his action aforesaid ¿gainst them, because they sáy, that the said marine insuranee company' (by the act of assembly of Virginia incorporating said company, which act of assembly tj^ • ^pinff here into court) are authorized to make -rules and regulations tor the conducting the- business Qf the said corporation, and that one of their said rules and regulations requires that every order for insurance shall be made in writing, and shall contaiii the name *of*the vessel and master, the place from whence and to which insurance is required to be made, with as full a description of the vessel and voyage as can be given thereof, and especially as to her age, tonnage aud equipment, and that it was always and is the practice of the said insurance company to make no insurance'upon the body .óf a ship, her. tackle,, apparel and furniture, beyond th'e reasonable value thereof ác{0 ^ representation and description given thereof as to her age, tonnage and equipment,, which yule all<l practice diminishes the risks of insurance in *207regard to losses contrived, designed, effected and concealed by the insured when they are greatly over insured; and that the said.rule and practice was, at the time of making and concluding the contract aforesaid in the declaration mentioned, well known to each of the said- parties making the said contract; and that to induce them, the said defendants, to sign, seal and deliver the aforesaid policy of insurance, thereby insuring to the value of eight thousand dollars upon the body, tackle, apparel and- other furniture of the brigantine Hope aforesaid, he the said plaintiff, in t ffecting the said policy on the 30th of September, in the year 1799, -at the county aforesaid, stated and represented that the said brigantine in the month of July, in the year last mentioned, was a stout well built vessel of about 250 tons burden, .in good order, and well found in sails, rigging, &c. built in Massachusetts, and from six to seven years old, and requested an insuranee upon the said brigantine, her tackle, apparel and furniture, rating her value at the sum. of 10,000 dollars for the voyage in the declaration mentioned at the commencement of the. risks to be insured. And the plaintiff Represented to the defendants on the same 30th .day of September, in thé year 1799, at the county aforesaid, that the said brigantine, her tackle, apparel and furniture, were of the value of 10,000 dollars, at the time the risks of the voyage to be insured bv the contract aforesaid, would commence; and the defendants aver, that in consequence pf the said representation, and placing full faith and credit therein, they were induced to sign, seal and deliver, anu did sign, seal and deliver the said policy of insurance on the said 30th day of September, in the year aforesaid, at the county aforesaid, to the plaintiff, thereby agreeing in the said policy to fix the value of the said origan tine,, her tackle and apparel and other furniture, at the sum of 10,000 dollars, and thereby insuring to the amount of 8,000 dollars for the voyage aforesaid, upon the said brigantine, her tackle, apparel and furniture. And the said defendants further aver, that the said brigantine Hope was not, in the month of July, in the year aforesaid, or at any time, a well built vessel of the burden, of about 250 tons, and was *208not from six to seven years old in the said month of July, in the year aforesaid, but was much older than from six to seven years old' ih the said month of July, in the said year, , that is to say, more than eight and a half years old, and had been ill built'in the year 1790, in the province of Maine, in Massachusetts, and thereafter was raised upon and rebuilt ; that the value of the said brigantine, her tackle, apparel apd furniture, was never at any time whatever equal to one half the said sum of 8,OQO dollars-. , And the defendants say that the difference aforesaid between- the -true built, age, tonnage and value of the said ship, and the aforesaid represented built, age, tonnage and value thereof was material in regard to ,the risks of the voyage in the said policy of insurance mentioned, and this they ale ready to verify; wherefore they pray judgment, ike.

*207action «pon *a valued*c°m°/JiéntS for the umlerwri^fijeifce that die real vulue ?f t1,<T i8 different that st¡h ^ m 1 icp°

*20810th plea. And the said defendants, by.their attorney aforesaid, by leave of the court and of the statutes in such cases made and provided, for'further plea in this behalf say, that the said plaintiff ought not to have or maintain his action aforesaid against them, because' they say that the said policy of insurance was had and obtained of them *by means of thefraud of the said George F* Straas*in the declaration mentioned, with intent to deceive and defraud the said defendants of a large sum of money that'is to say, of the difference between the just and fair value of the said brigantine, her tackle, apparel and furniture and the sum o.f 8,000 dollars intended to be ipsured by the said policy, which difference exceeded one half the sum last mentioned, that ■is to say, exceeded 4,000 dollars, and this they are ready to verify *-r*wherefore they pray judgment, &c.

But the court below refused to permit the pleadings to- be so amended, in consequence' of which the cause went to trial upon the three issues of; fact which had already been joined, viz.

1. That the defendants “ have well and truly done *209and performed all things they by the said policy of insurance were *bound*to perform.”

2. That the brigantine Hope “was not taken and seized by' certain British vessels and carried into, Jamaica and there libelled, condemned and sold in manner and form'as in the declaration is set forth and,

S. That the • brigantine Hope"'- was not, when she sailed from her- last port in the island of St. Domingo, on the .voyage insured, a good, sound, staunch, seaworthy ship, able to .perform the voyage insured.

Upon the trial of these issues the defendants olfer'ed evidence of the facts stated in . the ninth and tenth pleas, which the court rejected as inapplicable to either of the issues. To which refusal the defendants except- ' ed.

The defendants also offered in mitigation of damages, evidence-to prove that the vessel, at the time she sailed uppn. the voyage insured, was nc *worth*one half the sum.insured, and that the high valuation in the. policy was produced by an untrue and -unfair representation, on the part of the insured, of, the age, tonnage and built of the vessel, and that the misrepresentation in those respects was material. to the contract of insurance, and thereupon prayed the court to, instruct the jury that if they found the facts to Ise so, they ought not to take the valuation stated in the policy as the" true value o; the .subject intended to. be insuied, but in assessing the damages of the plaintiff, they ought' to take the *just value*of the said brig, &c. at the commencement of the risk insured, although all the issues df fact 'should be found for‘the plaintiff. Which instruction the court refused to give, having already instructed the jury, in case they should find the issues for the plaintiff, to reserve, for the decision of the court, the question as to the principle upon which the damages should be estimated and assessed. To which .refusal the defendants also excepted-

The plaintiff, for- the purpose of proving the libe. *210and condemnation in the declaration mentioned, pl'O* duced and read to the jury,- without objection at the on the part“of the defendants, a copy of the whole record and proceedings in the vice-admiralty court at Jamaica, respecting which, the counsel for the parties had entered into, the following agreement, yiz. “ I he defendants waive all exceptions to the authentication of the record of the proceedings in admiralty concerning the condemnation of the brig Hope, but save every objection to the contents of the said record excepting the matter of authentication. The plaintiff admits, as evidence, the affidavit of Gibson & Evans,

After the reading of whip]}, the defendants, in order to prove that the vessel was not, at the time of capture, in the due course of the Voyage insured, and the condition she was then in, offered t° reád in evidence to the.jury, from the said record of proceedings, á copy of the deposition of William Mufray, taken *in*preparatorio, to be used in the said court of vice-admiralty.

But the court instructed the jury that the said deposition of the said William Murray, so taken, is not competent evidence in this cause to prove the said facts. To which instruction the defendants excepted.

The plaintiff moved the court to direct the jury, that if, from the evidence, they find all the’issues of fact for the plaintiff, then they should find their verdiet m the following form,' viz. “ We of ¡he jury find all the issues of fact joined in this cause for the plaintiff, and do assess his damages by reason of the breach of covenant in the declaration mentioned,"to the sum of--, The amount of damages so assessed to be .nevertheless subject to the opinion of the-court upon the following point reserved, viz. if ¡he value fixed in the policy, set out in the declaration be not conclusive upon the parties, and it be competent to the jury, under any of the issues pi fact joined in this cause, to hear evidence concerning, and-to inquire into the real value of the vessel in the said policy mentioned, so as to reduce the agreed value mentioned in the said policy, and *211to estimate the plaintiff’s damages according to such reduced value, as apiuálly proved, then, and not otherwise, yve assess the plaintiff’s damages (in lieu of the sum above assessed) to the sum of ——. To which direction the defendants objected, and prayed the court if they gave the jury any instruction upon the subject, to direct them to find the smaller sum in damages, if the court should be of opinion that it was competent for the jury to hear evidence concerning the mis-' representation as to the agey built,- and tonnage of the Vessel.

. But the court refused to give the instruction prayed by the defendants, having before retused to suffer -the defendants to give evidence of misrepresentation by the plaintiff in obtaining the policy, under either of tile issues of fact joined in this cause, to which refusal the defendants had taken a bill of exceptions. But the plaintiff having consented to permit the defendants to give evidence' of the real value of the vessel' at the ' time the risks insured commenced, (saving the objection to the competency of any parol evidence upon, any of the said issues of fact, concerning the real value of the said subject insured,)- the court directed the jury •to find their verdict as prayed by the plaintiff.

To which refusal and instruction the defendants excepted.

The jury found a verdict in the form directed by the court, and filled the first blank with the sum of 11,452 dollars and 34 cents, and the other with the sum of 6,441 dollars and 71 cents.

The court, after consideration., rendered judgment for the largest sum, being of opinion that the value stated in the policy was conclusive between ’the parties.

The‘defendants brought their writ of error,

*C.*Lee, for the plaintiffs in *error.*

1. The court below ought to have permitted .the ad». *212.ditionai pleas to be filed. When a cause is sent back ^rom this court with a mandate “that such further and other proceedings be had in the said cause, as, according to *right and justice*and the laws of the United States, and agreeably to the-judgment of the said supreme court, ought to be had,” it is open to all amendments as if it were an original cause, and. as if the former plea had been adjudged bad by the court below in the first instance.

Amendments are permitted, even after judgment upon demurrer,' according to the discretion of the court. And this court will reverse the judgment of the court below, if it has not soundly exercised its discretion. *5 Term Rep.*112. *Wilkins*v. *Despard. 7 Term Rep.*703. *The King*v. *The Grantford Corporation. 1*Cranch, 117. *Resler*v. *Shehee.*1 *Wash. Downman v. Downman: 1 Burr. 317.*322. 1 *Wash.*313. 4 *Cranch,*433. *Pollard*v. *Dwight*.

The 9th plea was different from any before offered. And it was not necessary that the plea of fraud should have been more specific. 3 *Wentw.*414. 3 *Dall.*321. *Wischart*v. *Duchey.*1 *Woodd.*207. 3 *Co. 77. Ferrer's*case.

The court ought,to have received evidence of fraud and misrepresentation upon the first issue, which was in the nature of a general issue. The plea might perhaps have been adjudged bad upon.demurrer; but it is aided by the joinder of issue upon it, and every thing which'could show that the defendants were riot bound by their covenant to do any thing, was admissible upon this issue.

*System of Pleading,*321. 5 *Com. Dig.*tit. *Pleader, E.*pl. 37. *C. 5 Esp. Rep.*38.

•If the evidence was not directly ■ admissible upon either of the issues, it ought still to have been received in mitigation of damages. The contract of insurance' is only a contract for indemnity; and if, upon a total loss, the insured receive the full value of the subject *213insured, it is all that he can in equity and good faith require. 4 *Burr.*1966. *Da Costa*v. *Perth.*Cowp. 583. *Grant*v. *Parkinson.*

In this very case this court has intimated an opinion that the misrepresentation might tie a subject, of consideration in-inquiring of damages.

Upon a total loss, ¡the value stated in the' policy is' only *prima facie*evidence. *Marshall,*1 O, 111. 199. 612. 701. 3 *Atk.*554. *Sadlers’ Company*v. *Babcock.*

The court ought to have admitted the deposition of Murray to be read froVn the record of the vice-admiralty'. By the British treaty the whole proceedings are made evidence.

The court also erred in rendering judgment upon the verdict for the larger sum. It was competent for the jury to hear evidence ol the real value ot the vessel, and to assess damages accordingly.

Swann, contra.

The court below committed no error in rejecting the 9th and 10th pleas. They were offered after the cause nad been remanded from this court. There will be no end to delay, if the party be permitted to amend after judgment against him upon a writ of error.

As a matter, of discretion also, the court did right in rejecting the 9th plea. They ought not to have indulged the defendants with filing a plea at that late stage of .the cause, which tendered the same issue which, they had refused to join when tendered by the plaintiff in his replication to the 6th plea. Besides, the matter of the plea was covered by the implied warranty of seaworthiness; for if the-facts stated in the plea were at all material, -they must have been so only in regard to the ability of the veSsr» to perform the voy'age.. The substance of this plea was therefore included in the issue of seaworthiness.

The admission or rejection of a plea after an issue *214is joined, is not an error for which' jhe. judgment can reversed. It is a mere matter of discretion; the can have no legal ground' to insist upon it. *7 Term*Rep. *703.*I’he principle that this court will' not reverse a judgment for a proceeding in the court below which was within its discretion, has been decided, ■in regard to the, continuance of causes, and the granting new trials.

If it be a case in which a writ of ef ror lies, still ntf ef fon was co.m mltted by*the court in the exercise of its discretion in rejecting the IOth plea. It. is ncft a direct allegation of fraud, nor does it aver that.any damage was sustáiVied by thé defendants in consequence of the fraud* . The plea is not sufficiently explicit in -charging' the Fraud; it does not state in what,particulars theiraud consisted. Neither of the pleas coif'd be considered as a fair plea to the merits. They must have produced demurrers, and additional delay.

There Was no error' in rejecting" the ’evidence of he facts stated in the 9th and'IOth pleasvbecause thérei-as no'issue to which- those-facts could apply.

' The piea that the defendants had performed all that they were *bound*to perform must be considered as aa averment of a matter of fact, not of a matter of la.Wi' The tinly act Which the deféndánts were bound, to perform was'to pay the miohey if a-loss happened.- The plea therefore amounts to an averment that they had paid the .money.

There was no error iti rejecting the copy' of Murray’s deposition; for it! was not taken ' in the cause. • The plaintiff had no opportunity to cross-examine him. It. was entirely án *ex parte*proceeding.

.There coüld,be no error in the direction given'by the court to the jury to find their damages in the alter-' native, or conditional manner; it is often done when a' question of law is to be.saved. It is a kind of special verdict. The error, if any, must have been in render-' ing the judgment,for the largest sum..

*215The correctness of this judgment depends upon the question whether, it was competent for the jury, upon either of the issues, to hear parol evidence of the value.

The policy 'was *sealed,*and subject to all the incidents-of a sealed iristrumerit at common law. The value agree.d upon by the parties, under seal, cannot be denied by parol evidence. 4 *Bac.*106. Salk. 276. 2 *Burr.*1171; *Lewis*v. Rucker. 4 *Burr.*2228. *Leave*v. *Peers.*

But even if it were a policy without seal, the agreed value in the policy would be conclusive.. *Park,*104. 267. 1167.

The agreed value is conclusive unless it appears to b'é a cover.for a wager. An inquiry of the actual valué is never made upon a valued policy but with a view to ascertain whether it be a wager policy. There-is nof an instance in the English books of the agreed Value . ever being reduced to a smaller siim. Upon a total-loss, the, agreed value is to be recovered, or nothing. If this be not the case; and you. can go into the question of the actual value, every policy is reduced to an open policy.

Suppose a man should, make a bad bargain, and purchaser vessel for 10,000 dollars, not worth 5,000. He insures, and it.is agreed that the vessel shall be valued at 10,000 dollars*. A total loss happens; shall he be obliged to receive only the value of the vessel to be ascertained by a jury ?

This is like every other case of liquidated damages ; if is conclusive between the parties.

As. to plea of fraud, if was too vague. The preee* dent cited from W entworth is- against them j the vessel irt that case Was stated to 'have been fraudulently *consumed by fire.*The case from Dallas is not relevant* The, case of Pollard and -Dwigpt is against them. The court theré refüsed to direct the amendment tó be made. The case from 1 *Wash.*313. was upon a. *special*demurrer, and it was most clear that the *216justice of the case required the amendment.. It was a case clearty within the equity of the statute of jeofails. In the case from 7 *Term Rep.*703. the court did give leave to amend under the statute of jeofails, bi>t it was in the exercise of its *discretion.*

*E. F. Lee,*in reply.

Amendments may he made at any time, even after verdict, and for that purpose a new trial will be granted. 7 *Term Rep.*132. *Tamsinson*v. *Blacksmith. Str.*1151. 1162. *Comb. 4.*3 *Call,*522. *Jude*v. *Syme.*2 *Salk.*622.

If the facts in the 9th plea would have vacated a policy not under seal, the court Ought to have suffered them to be pleaded to a sealed instrument, especially after the 6th plea (which had bepn formerly adjudged, good by the. court below) had been rejected by this court. By that rejection the defendants were entirely shut Out from the benefit of these facts upon the trial.

The misrepresentation was material to the *risks*of the voyage, aiid ev<?ry such misrepresentation^ whether fraudulently or innocently made, destroys the policy. *Marshall,*335.

Fraud vitiates every contract, and may be examined into by a court of law. It has been decided that courts of equity have no,jurisdiction of insurance cases. 3 *Bro. Parl. Cas.*525. *De Ghetoff*v. *The London Assurance Company.*The contract of insurance is founded updnthe principles of equity, and governed in all its parts by plain justice and good faith.

In a court of law a defendant may show that the consideration of a bond is bad. *Collins*v. *Blantern,*2 *Wils.*347. *Guichard*v. *Roberts,*1 *W. Bl. 445. 4 Dall.*269. *Jenk.*254. *pl.*45. *1 Burr. 396.1*Term *Rep.*619. *Winch v. Keely.*

In *covenant*the plaintiff can' recover .only such dama-ges as he has *actually sustained,*and the defendant *mkv**217.give in evidence any thing which shows that *no*damage has been sustained by reason of the breach of any *¿o*venant which the defendants were bound to perform. Evidence of fraud and misrepresentation went to show that the defendants were not bound to perform any of the covenants, and therefore the plaintiff was not entitled to damages. 2 Selwyn, 464.

*March*17.

Livingston, J.

delivered the opinion of the court as follows:

This is an action of *covenant, ' on*a policy of insurance, to which the defendants pleaded, 1. That they had performed all things which, by the policy,, they W.ere bound to perform; 2. That the vessel insured was not -captured and condemned -as in the declaration is mentioned; and, 5. That the vessel insured was not seaworthy: on which pleas is s ues, vv'e taken by ¡the plaintiff.

There were, also, five special pleas, to which there, were demurrers, all of which were allowed by the circuit court, except the one to the sixth plea, which, on a writ of error to this court, heretofore .brought, was allowed here, and the cause then remanded to the-circuit court,, for further proceedings to be had therein. - On the return of the cause to the circuit court, the defondants moved for leave to file,two additional pleas; Which motion was denied; and is-now relied on as one of the errors for which the present judgmen should be reversed.

This- court does not think that the, refusal of an inferior court to receive an additional plea, or to amend ohe already filed, can evér be assigned as error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of eyery case, than by any precise and known rule of law, and of which the superior court *218can never become fully possessed, that there would be' TMore- danger of injury in revising matters of this kind, than what might result now and then from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial, or not to continue a cause, but in neither case can the party be relieved by a writ of error: nor is the court apprized, that a refusal to amend or to add a plea was ever made, the subject of complaint in this way. The court, therefore, does not, feel itself obliged to give any opinion, on the conduct of the inferior court, in refusing to receive these pit-as. At the same time, it has no difficulty in saying that, even in that stage of the proceedings, the circuit court might, if it had thought proper, have received these additional pleas, or admitted of any amendment in those already filed.

The court below having refused to receive these pleas, the trial proceeded on the three on which issues were joined; and the defendants offered, under them, or some of them, to prove that it was one of the rules of their office, that every order for insurance shall contain as full a description as can be given of the age, tonnage, and equipment of the vessel ; and that it was always their practice to make no insurance on a vessel beyond her reasonable value, according to the representation given of her age, tonnage, and equipment; and that such rule.was known to the plaintiff; and that, to induce them to insure -eight thousand dollars on the brig Hope, the plaintiff represented her as a stout, well built vessel of about 250 tons burden, and from six to seven years old, and that she was worth ten thousand dollars; in consequence of which, they insured her tor eight thousand dollars; that, on the contrary, she was not a well built- vessel of 250 tons burden, and was not from six to seven-years old, but was more"than eight- and a half years old, and had been ill built; and that this difference between her true and her represented built, age, and tonnage, was material to the risks of the voyage insured. This evidence, being objected to, was deemed inadmissible.;'and this court is now called on to say whether, in this opinion, there was any error,.

*219However desirable it maybe td admit in evidence, on th.e general issue in an a'ction of covenant oh a policy . of insurance, every thing which may avoid the-contract, or lessen the damages, as is done in actions on the case,' this court does not know that it possesses the power of changing the law of pleading, or to admit of evidence inconsistent with the forms which it has prescribed. No rule oh this sjibject is more - inflexible than that, in actions on deeds, all special matter qf defence must be pleaded, ' Of this rule it is very certain,,from a.mere inspection of the record^ that the defendants cannot allegé ignorance. If every thing, then,, which is relied Orí to avoid a contract under seaUmust'.be: pleaded, it .will, at once, be conceded'1 that nobe of the; matter of. fere'd'in evidence .applied to either of the-pleas/.- The defendants could not1, thus' set up an éxcúse- for-not doing'that which, by one of the pleas, they professed to have-done ; ancT, sis to the other pleas, Which-denied the capture ánd : seaworthiness of -,the vessel, it will .not be pretended that any of this matter supported either of them. • The' same remarks- apply to the second and third bills of- exception.'' Neither -fraud npr misrepresentation, as to the value of the vessel, or her age, or'tonnage, could be received in evidence, -under ■either of these -issues, ho more than infancy or cover* ture, on a plea of *non est factum;*for, most certainly, nohe of the matters here offered by the defendants, the rejection of which occasioned these exceptions, .went, ip any- degree, to prove either of the pleas on which isr sue had been joined..

The fourth exception is to the refusal of-the court to admit the deposition of William Murray, which appeared among the admiralty proceedings,/and-which was offered by the- defendants to prove that the vessel was not in the due course of her voyage When she was captured, and the condition she was in, at1 the time of capture. As the defendants have not, iii either of their. •pleas, relied on a deviation, itinay be doubted whether any evidence of that feet were admissible; but, if it were proper, for the purpose of discrediting any testimony which had been offered'by the plaintiff, to show where the Hope had been taken, it is not thought that *220the circuit court erred in instructing the jury that the deposition Murray was not competent evidence t® prove that fact. If all the proceedings in the admirally had been read by the plaintiff without any pre. vious agreement, on' the part of the defendants, to save every objection to their contents, excepting the matter of authentication, the court will not say that the defendants might not have insisted on using any deposition, among the papers, which made in their favour: but, as' the plaintiff could have read them for-no other purpose than to prove the libel and condemnation, and must have attempted to prove no other fact by them, for which . purpose it is expressly stated that they were offered, and .as the defendants had, by their agreement, explicitly reserved to themselves every objection to their contents, it does not appear reasonable to permit them to select a deposition, as evidence £ them, while the -plaintiff could not have madeu„e of that, or any other, if ever so favourable to himself. The circuit court, therefore, did not err in the instruction which it gave to the jury on this subject.' This court cannot forbear remarking here, that it can never be necessary, in order to prove a condemnation, to produce any thing more than the libel and sentence; although it is a frequent but useless practice to'read the proceedings at length.

The fifth exception is taken to a refusal of the circuit court to direct the jury to find.damages for the value of the vessel, as agreed in the policy, and, conditionally,.for her actual válue, if, in the' opinion of the court, it was competent for the jury, urider any of the issues joined, to inquire jnto the real value of the vessel. As it had already been decided, and, as this court thinks, correctly, to receive no evidence of the real value of the vessel, there was no error in refusing to. give this direction : and, although the' plaintiff, at length, consented to permit the defendants to give evidence of the real value of the- vessel, saving objections to the competency of such evidence, upon any of the issues of fact, and the jury, thereupon, found conditional damages, this court is of opinion that, as evidence of the real value of the vessel, under any of these issues, was incompetent, and as objections to its competency *221were saved to the plaintiff, the circuit court did right in giving judgment for the damages found by the jury, according to the value of the vessel, fixed in the policy; which judgment this court affirms with costs.