
    J. and G. Depeyster against The Columbian Insurance Company.
    If a plaintiff examine his witness and deliver him over to the defendant to cross-examine, and before any opportunity offer to enable the plaintiff to ask him any questions in explanation, the witness fall down in a fit, and the plaintiff go on to examine other witnesses, and try the cause, the court will not afterwards grant a new trial to give the plaintiff an opportunity of letting in the farther testimony of the same witness. If the defects in a vessel existing previous to the effecting a policy of insurance, be not such as to render the vessel unsoaworthy, though she may demand repairs on her voyage, if she perish in its prosecution, the amount of the repairs required for her anterior defects are not to be deducted from that of the verdict, if rendered for a total loss. If a judge misdirect in one point, which does not go to the merits of the case, according to which the jury decide, the court will not, on that account, order a new trial.
    This was an action ?o recover a total loss by perils of the sea, on a policy of insurance on goods on board the schooner John, for a voyage from New York to Curracoa.
    From the testimony of the mate and master, who was also owner of the vessel in question, it appeared that the circumstances of the case were these:
    The bottom of the John was, at the time of her sailing, a little worm-eaten; but she was, notwithstanding, a staunch, tight, and strong vessel, completely found, manned and equipped for the voyage. On arriving a little to windward of her place of destination, the captain perceived the day too far spent to admit of running into his port before dark, and therefore lay too, lest he should pass it in the night. Notwithstanding this precaution, on looking out, at daybreak, he found himself considerably to leeward of Curracoa. In order, however, to gain his port, he continued ineffectually endeavoring to beat to windward, till his wood and water were nearly exhausted; when, the ^vessel being so leaky, from bad weather which she had encountered, as to require one pump to be always kept a going, and sometimes both; being also shattered and damaged in her rigging and sails; it was, on consultation with the officers and crew, determined to bear away for Kingston, in Jamaica, where they in a few days arrived, with the cargo uninjured. The state of the vessel requiring repairs, she was surveyed, not in a regular manner under a warrant from the court of admiralty, but at the request of the master, by some seafaring captains, who pronounced, as the witnesses deposed, that she could not be repaired for her worth at the time of her sailing from New York. On this, and after a fruitless attempt to procure a vessel to carry on the cargo to Curracoa, the captain broke up the voyage and sold the cargo, part of which consisted of perishable articles, for the benefit of whom it might concern, at a loss however, of nearly 50 per cent. So impossible was it to procure a conveyance from Kingston to the port of original destination, that a passenger, who went out in the John, was obliged to return to New York, and again embark from thence to Curracoa. Having in some degree refitted the vessel, she sailed in ballast for Savannah; but on her passage (as out of her crew, composed of only five persons and a boy, fwo had died) she put into tbe Havanna, where she was hove down, repaired and refitted, and a cargo of one hundred and fifty boxes of sugar taken in, with which she arrived safely in the United States. When at the Havanna, she was examined, and her-bottom found very much injured by worms, but as the expense of repairing was much less at the Havanna than at Kingston, they were bestowed at the former place, without doing of which the schooner could not have proceeded. On the trial, the master, while on his •cross-examination by the defendant, was seized with a fit, and could no further testify ; but neither party desired the trial to be put off on that account.
    The judge charged, that if the jury believed the vessel to be seaworthy when she sailed, and that the expense of repairing her when at Kingston would have cost half her value, they ought to find for the plaintiffs for a total loss, but in calculating the repairs, if they were of opinion any were necessary on account of injuries received by means of worms before the vessel sailed, *the repairs for such injuries ought not to be calculated to the prejudice of the defendants, but that they should confine their estimate to the damages subsequently sustained during the voyage.
    On this a verdict was given for the defendants, to set aside which the court ivas now applied to.
    Junes, for the plaintiffs.
    The circumstance of the captain’s being seized with a fit prevented our re-examination,» as to points which the defendant’s cross-examination rendered necessary. The sale of the cargo was unavoidable, as it was impossible to convey it to the port of destination; and as the amount of the repairs at Kingston was more than half the value of the vessel, it constituted a loss of the voyage, on which the assured had a right to abandon, as it arose from perils of the sea. Wherever a vessel is, from perils of the sea, unable to reach the port to which bound, the owner of goods insured may abandon, unless it appear that the ship was not seaworthy at the time of her sailing. This she is, notwithstanding any little defects, if, in her then state, adequate to the voyage. Should she in the course of performing it demand repairs, the quantum induced by such anterior defects, are not to be deducted from the amount, in order to prevent the conclusion of a loss of voyage ; because it is, in the first place, impossible to discriminate between the value of the repairs for the injuries prior to her sailing, and those which arise subsequently. In the next place, the underwriter is always compensated to the supposed extent of such previous injuries, in the deduction which is constantly made of one third new for old. This allowance is made him as a kind of premium for his responsibility for subsequent accidents, inducing a deterioration to more than half the worth of the vessel. In the estimation the judge charged the jury to make, there was, therefore, an evident misdirection, and this, is sufficient to induce an order for a new trial.
    Bogert, contra.
    The application cannot be granted to let in the evidence of the captain. His testimony was inadmissible ; for, as he was owner, he was interested in proving the sea worthiness of his vessel at the commencement of the voyage, and her becoming so from perils of the sea, to prevent an action against himself by the owner of the goods. '^To render him competent he ought to be released. Peake’s Law of Ev. 113, citing Iiotheroe v. Elton, and Fox v. Luskingion, Peake’s N. P. Cas. 81. But if competent the plaintiffs had finished their examination, and a new trial is never awarded to let in evidence, merely because the party sees where the cause presses.. 2 Bl. Rep. 81S. On the point of unseaworthiness, nothing is more settled, than that, if induced by defects before the voyage is commenced, the underwriter is discharged. He is liable only for injuries during the voyage; and if those injuries be less then half the value of the vessel, there is no ground for breaking up the voyage.
    Hamilton, in reply.
    Where testimony has been omitted by a party, in consequence of advice from his counsel, by which he was misled, the court will grant a new trial; a fortiori when the act of God prevented its being adduced. In 1 East is a case to this. Where the defects are not such as to create unseaworthiness at the time when the policy attaches, they are not at the risk of the underwriter. Millar, 110, et seq. In Da Oosta v. Newnham, the discrimination in the charge was not even touched on, though old and new injuries were the subject of litigation.
    
      
      
        Spong v. Hogg. In this case the counsel had, from prudential motives, omitted to produce the testimony wanted tq be- introduced on the second trial
    
   Livingston, J.

delivered the opinion of the court. A motion for a new trial is made on the following grounds: 1. Because the plaintiffs were deprived of the full benefit of the testimony of one 'of the witnesses, by reason of his sudden illness. This witness was not seized with a fit until the plaintiffs had examined and given him over to the defendants ; but had it been otherwise, they should have suffered a nonsuit. Instead of this they proceed with the trial, examine other witnesses, and take the chance of a verdict on the testimony then in their power. After this they come too late for a new trial. 2. It is alleged that the verdict is against evidence. The extent of the injury sustained, and expense of repairing, were fairly submitted to the jury as questions of fact, and there is no room to say they have decided them contrary to the evidence. What the repairs cost does not exactly appearthose at Kingston amounted to near four hundred dollars. After mending her ¿ails, rigging and bowsprit, and calking-her ripper works ai Kingston, the John sailed for Sayan nab, but having a dying and *sickly crew, and the schooner continuing leaky, she was obliged to put into the Havanna. There she received a new bowsprit, topsail, squaresail, and flying-jib ; she was also hove, down, calked and graved, but not sheathed; her bottom was somewhat worm-eaten, and the captain believes that w;as in some, degree the case'when she left New-York : after these repairs she took in a cargo, of 155 boxes of sugars and returned to Philadelphia. Prom this statement it is impossible to say that satisfactory evidence was offered to the jury, that her repairs would cost a sum sufficient to justify breaking up the voyage. The mate swears as to this point only from hearsay, and the captain, who was very much interested in making a good story, only gives his opinion, without producing any survey. The repairs actually put on her, the good condition of her cargo, and her returning to the United States with a heavy lading, are strong circumstances against the plaintiff’s claim. 3. It is also said the jury were misdirected on a point of law. In calculating the cost of repairs, they were told that if they believed any were necessary on account of injuries received from worms prior to the vessel’s sailing, the expense of such repairs should not be included' in the estimate. This direction is supposed to be incorrect, inasmuch, as it prescribes a rule, difficult,if not impracticable to follow. How, it is asked, are. the jury to distinguish be: tween repairs rendered necessary by perils of the sea, and those which are become so in consequence of some damage or defect existing at the commencement of a voyage ? And from this difficulty of making the proper separation, as well as from the natute of the contract, it is insisted that the true rule is the. one laid down by Millar, 136, in his Treatise on Insurance, which is, that underwriters are responsible for pre-existing defects, unless they be so great as to render the vessel not seaworthy.” It may at first seem bard to hold an insurer in any way liable for the defective nature of the thing insured, but so long as the subject of insurance be seaworthy, is it not part of his contract that in case of accident, he will defray all the expense of placing her in statu quo ? If she be totally lost, he pays the whole sum subscribed without any inquiry into her condition, any father *than to ascertain whether she were seaworthy; so if she be partially injured, the repairs being rendered necessary by a peril insured against, they ought to be made, without any other examination as to her antecedent state, except to determine the same fact of her being seaworthy; for, unless she had been further damaged by one of the perils insured against, no repairs at all would have been necessary. This point is not settled by any adjudged case. In Manning v. Newnham, reported by Millar, 303, the defendant proved some of the damages old and some recent. This is all that is said, and the defendants’ counsel lay no stress on part of the damages being ancient, nor does Lord Mansfield take any notice of that fact. This case, therefore, proves nothing either way. I adopt, however, as a general rule that if the old injuries are not such as to render the vessel innavigable, no deduction, in case of accident, is to be made on that account from the cost of repair, and therefore think the judge was mistaken in directing the jury to make the distinction he did. But admitting a mistake in the judge’s charge, a new trial ought not always .to be the necessary consequence; it is not for every misdirection in point of law that the parties should be put to the expense of further litigation. If the result from the testimony would probably have been the same, whether a particular direction had been given or not, it can be no reason for granting a new trial. Here if the jury had taken into the the estimate the expense of all repairs, without any deduction for old or former injuries, their verdict must have been the same. If, then, there be be good reason to tbink the plaintiffs have not been injured by the judge’s mistake, they ought not to be indulged with a new trial. I do not, by any thing that has been said, mean to be understood as subscribing to the nisi prius opinion of Lord Kenyon, which was cited from 1 Esp. Rep. 444, “ that if a ship’s bottom during a voyage be eaten by worms, so that she be incapable of proceeding, and be condemned, this is not a loss within the policy.” It is not necessary to decide this question now.

New trial refused. 
      
       See Halsey v. Watson, 1 Caines’ Rep. 25, n. (a,) and Steinbach v. Columbian Ins. Co., post, 133, n. (a,) and Deas v. Smith 1 Caines' Rep. 154, n. (a.)
     