
    Richard Shackelford against Peter Patrick.
    Charleston,
    May, 1817.
    Where goods are damaged on board of a vessel in the voyage, and alleged to be thro’ the default of the master, it is not absolutely necessary that the damaged goods should be sold in order to give a right of action, and far less that both the damaged and the sound should be sold. The plaintiff, if he have a right to recover at all, may prove his damages ,in any other compe*tent manner.
    This was an action brought to recover the amount of the damage sustained on certain goods, shipped by the plaintiff, on board the sloop Elfrida, of which the defendant was master, on a voyage from New-York to Georgetown, and which it was alleged were damaged, by the neglect or want of skill of the captain or his agents.
    It appeared, among other things in evidence, that the vessel had not been sufficiently or skilfully dunnaged; and it was inferred by the plaintiff, that this was the cause of the damage the goods had suffered.
    On the part of the defendant, it was testified, that the vessel had suffered under a severe squall, which caused, it was alleged, the damage. The damaged goods had been sold, but no part of those which were not damaged, was sold.
    The Judge charged the Jury, that when a part of a shipment is damaged, the whole shipment must he sold on account and risk of those concerned, to ascertain the damage; and that the plaintiff not having pursued this course, the defendant was entitled to a verdict, and the Jury accordingly found for the defendant.
    A new trial is now moved for, on the following grounds.
    1st. That the verdict was contrary to evidence.
    2d. That the presiding Judge misdirected the Jury, in charging them that it was necessary to sell the whole shipment, on account of those concerned, to entitle the plaintiff to a verdict.
    The cause was tried before Mr. Justice Grimké, at Georgetown.
   Cheves, J.

delivered the opinion of the Court.

I will consider the second question first. And clearly, it was not necessary on the part of the plaintiff, to sell the whole or any part of the goods, to entitle him to a verdict. It was only necessary for him to prove the quantum of damage, the cause of it, and that the cause was one for which the defendant was responsible. A sale sometimes serves the purpose of fixing the extent of the damage, but any other sufficient testimony will serve the purpose, and is sometimes better evidence on the point. The case will often happen, in which the possessor would not part with the damaged article for any sum of money; and because it was thus inestimable, would he have no remedy for an injury which it had sustained by negligence or want of skill in the transportation of it ? Suppose the articles shipped, were pieces of extraordinary value in the fine arts, for example, exquisite paintings — would the possessor be obliged to bring them to the vendue master’s hammer, before he could recover ? But the point is very clear, and need not be enlarged upon. The ground of misdirection will, therefore, entitle the plaintiff to a new trial, unless the Court can see Very clearly that the verdict ought to have been for the defendant on other grounds.

King, for the motion.

. The only other question is, whether the evidence justified the verdict: but whether it did or not, we need not determine. It is enough that we cannot see clearly, that, if the charge had been correct, the Jury, notwithstanding, ought to have found the same verdict. We give no opinion on the evidence, but on the ground of misdirection

The Court is unanimously of opinion, a new trial ought to be granted.  