Neilson v. Columbian Insurance Co. , 3 Cai. Cas. 108 ( 1805 )

Per curiam.

A new trial must be awarded with costs to abide the event of the suit. The charge of the judge, as stated in the case was clearly wrong. So long as the corn physically existed, there could not be a total loss. Though good for nothing, the defendants were not liable, being protected by. the clause in the memorandum. The direction was contrary to our determination in Maggrath and Higgins v. Church. It ought also to have been left to the jury, as a material point whether the vessel could not have been repaired at the Cape de Verd Islands, so as to perform her voyage. This does not appear to have been distinctly submitted.