
    * William Nickels versus Maine Fire and Marine Insurance Company.
    The r^Ie, in adjusting average losses upon ships insured, by which one third of the cost of new materials is deducted on account of the difference between them and those lost, is general, and applies to the case of a ship entirely new, as well as others.
    Assumpsit upon a policy of insurance dated February 13, 1812, whereby the defendants insured the sum of 5000 dollars upon the ship Commerce, belonging to the plaintiff, and her appurtenances, from Wiscasset to her port óf discharge in Great Britain, and at and from thence to her port of discharge in the United States; vessel valued at 20,000 dollars.
    At the trial, which was had, at the last September term in this county, before Parker, J., it was in evidence that, on her outward passage, the ship sustained considerable damage from a storm, which happened in thirteen days after she sailed, by which she lost her boats, many of her yards and spars, and a cable, and received damage in her blocks, rigging, &c. Arriving at Liverpool, new articles were purchased for those which were lost, and the vessel was put in order for sea with as little expense as possible.
    The action was brought to recover the expense of refitting the ship, which had become necessary in consequence of the said storm. It was proved that the ship, when she sailed upon the voyage insured, was entirely new, it being her first voyage; and all her masts, spars, sails, rigging, cables, and anchors, were new ; and she was in every respect well found and equipped for the voyage.
    The defendants insisted, at the trial, upon the right to deduct from the cost of the repairs at Liverpool one third of the amount, according to the common usage, which was admitted to exist, of deducting that proportion for the difference between new and old materials.
    The plaintiff contended that the usage did not apply to the case of an entirely new vessel, meeting with damage so shortly after sailing; and three instances were proved of adjustments in insurance offices, two in Boston and one in Wiscasset, in which no such deduction was made, because * the ships, [ * 254 ] &c., were new, and were damaged within a short time of their sailing.
    The question reserved for the opinion of the Court was whether, upon these facts, the defendants were entitled to the said deduction of one third for the difference between new and old materials.
    
      Wilde, for the plaintiff.
    The reason of the usage referred to in this case is bottomed on the more common case of old vessels; but has no application to new ones, whose fixtures are equal in value to those purchased to replace them. Three instances were produced at the trial, in which the usage had been rejected on that account; and considering the proportion of old vessels to new ones, and the less probability of damage to the latter, three instances were perhaps as many as could reasonably be expected.
    
      Mellen for the defendants.
   By the Court.

If this were a new question, the argument for the plaintiff would be entitled to great consideration. ■ Btit the practice is settled and universal. The usage is established, and in its operation must be sometimes favorable to one side, and sometimes to the other. It is of importance, particularly in commercial causes, to adhere to general rules. There would, too, on this question, be great inconvenience in investigating each case by°itself. We think the rule binding in all cases, and that the three instances adduced by the plaintiff of adjustment on other principles cannot affect a rule so general and so established,

Memorandum. On Wednesday, the 8th day of June, 1814, died, very suddenly, at Wiscasset, the Honorable Samuel Sewall, chief justice of this commonwealth. The day before his decease he was in the exercise of his official duties upon the bench.

Having previously filled many important offices in the government of this commonwealth and of the United. States, in a manner highly honorable to himself, and useful and [ * 255 ] * satisfactory to the public, he was appointed a justice of this Court in the year 1800, in which station he remained until, on the lamented death of the late Chief Justice Pardons, he was appointed to succeed him in that station.

The sudden death of this great and amiable man, and learned and upright judge, was felt as a great public calamity*. The legislature of the commonwealth, being at the time assembled in Boston, passed a resolution that the members would wear a badge of mourning during the remainder of their session, as an expression of their grief for this public bereavement, and of respect and veneration for the memory of this excellent man.

A sketch of ther life and character of the deceased, by his friend and associate, the Honorable Judge Parker, will be found at the close of this volume.

“ Multis file bonis flebilis occidit.” 
      
      
         Mr. Stevens says, “ It is customary to make this allowance, and unless the ship be perfectly new, that is, on her first voyage, or the materials sacrificed be perfectly new, this deduction is invariably made.” — Stev. Av. 154, 155, 2d ed. — And in Fenwick vs. Robinson, (3 Car. Pay. 324,) Lord Tenterden says, u It is admitted that this rule (to allow a deduction of one third) is not absolutely universal; for if the loss happens on a fit st voyage, the underwriter is not entitled to the deduction.” It has been held that the one third is not to be deducted from the gross amount of the expenses of repairs, but from the balance, after the old materials have been applied towards the repairs; (Byrnes vs. The National Ins. Co. 1 Cowen, 265. — Brooks vs. Oriental Ins Co. 7 Pick. 269 ;) and that this deduction is not to be made in estimating the costs of the repairs, with a view to abandonment, as in case of a partial loss.— Peel & Al. vs. The Merchants' Ins. Co. 3 Mason, 27. — Le Guid. c. 7, 551. —1 D. & E. 187. — 1 M. & S. 30. —3 Johns. Cas. 182. —15 Mass. Rep. 341,
     