1817. PETERS V. The Phoenix a matter of fact, "whether the brig, by striking on the bar "at Charleston, and meeting the subsequent hard gales and and another high seas, sustained such damage, as deteriorated her at "least one half in point of value, during the course of her "voyage." If the jury should be of opinion in the affirmative, they were directed to find for the plaintiffs, to the amount of their whole demand. The verdict was in favour of the plaintiffs, and the defendants' counsel now urged the following reasons for a new trial. 1st, That it was the duty of the plaintiffs, or their agents, to put the brig in complete repair at Norfolk, and having gone to sea again in a condition not sufficient for the voyage, the underwriters are discharged. 2d, That the brig, having performed her voyage, and been moored twenty-four hours in safety, in the road of Funchal, the plaintiff, cannot recover for a total loss. 3d, That if the defendants are charged with a total loss, they are entitled to the freight earned during that part of the voyage, which was subsequent to the alleged death wound, viz. striking on the bar of Charleston, and ought to have been allowed for it in the verdict. 4th, That the verdict was against the evidence, on the point submitted to the jury. The cause was argued by Hallowell and Rawle, in support of the motion for a new trial, and by Binney and Chauncey, against it. TILGHMAN C. J. After having stated the facts, delivered the following opinion. No authority has been produced in support of the first objection. When a ship, which has received damage, puts into port to repair, the captain, or agent, who superintends the repairs, is bound to use due diligence. But it may be impossible to make a complete repair, either for want of materials, or of skilful workmen, or of accommodations for heaving the ship down, in order to make a thorough search. This objection was not urged at the trial. If it had been, the jury might have judged, whether there had been negligence. The law implies no warranty of sea-worthiness, except at the commencement of the voyage. To say, therefore, that a ship, which has suffered damage by a peril insured against, must, at all events, be so repaired at the port she puts into, as to render her sea-worthy, is to add to the contract a condition not contained in it. On the second point the counsel for the defendants seem to have fallen into an error, from not attending to the distinction between an actual total loss, (by the sinking or burning of the ship,) and that kind of loss which is total not in fact, but in contemplation of law, viz. when damage has been suffered during the voyage to the amount of 50 per cent. In such case the assured is permitted to abandon. The loss is partial in its nature, and the only question is on the amount of the damage. If under 50 per cent. the assured is not permitted to abandon; if equal to 50 per cent. or above it, he may abandon. This is the very point on which the case of Cazalet v. St. Barbe,(a) turned. The jury found the damage to be only 48 per cent.; and for that reason only the plaintiff could not recover for a total loss. About the payment of 48 per cent., however, there was no dispute; for the defendant brought it into Court upon his plea of tender. But the defendant's argument in the present case leads to this conclusion; that the plaintiffs could not have recovered even for a partial loss below 50 per cent.; a proposition so contrary to justice and common experience, that it will not be seriously asserted. Two cases were cited by the defendant's counsel, which shall be noticed. In Lockyer v. Offley, (1 Term Rep. 252.) after the ship had been moored twenty-four hours, she was seized for an act of smuggling committed by the captain during the voyage, which amounted to barratry. It was held that the underwriters were not liable. The reason is plain; there was no loss till seizure, and whether a seizure would ever be made was uncertain, until it actually was made. At the time that the policy expired therefore, (twenty-four hours after the mooring of the ship,) the assured had lost nothing; which is altogether different from the present case, where the damage had been sustained before the mooring of the ship. In the other case, Meretony v. Dunlope, cited by Justice Willes, in Lockyer v. Offley, the ship received her death wound during the voyage, but was kept afloat by pumping, till after the policy was expired; and held that the underwriters were (a) Cited in 2 Marsh, 583. 1817. PETERS and another v. The Phoenix Insurance PETERS 1817. discharged. We have no report of this case which informs us of the nature of the policy. It was probably of that kind and another which precluded the assured from recovering for a partial The Phoenix loss; otherwise this decision would be contrary to other cases of unquestionable authority, and could not be law. V. Insurance The defendant's third objection is, that if they pay for a total loss, they are entitled to the freight earned by the brig after she received her death wound, which is supposed to have been on the bar near Charleston. If this point had been urged at the trial, and the Judge had given his opinion against the defendants, it would have been proper to take it now into consideration. But the claim of freight was not made then, and therefore cannot be a reason for a new trial. If indeed the defendants had a just claim, and would be without remedy in case the verdict stands, it might be a strong reason for listening to the argument, even at this late stage. But it is not so. The defendants not having brought the matter of freight before the jury in this action, are at liberty to prosecute it in another action. The last reason offered for a new trial is, that the verdict was against the weight of evidence. Without entering into an examination of the evidence, suffice it to say, that the Judge who tried the cause is satisfied with the verdict; and although it is a case which admits of plausible arguments on both sides, yet the scale does not preponderate on the side of the defendants so decidedly as it ought to do, to justify the Court in granting a new trial. I am, therefore, of opinion that the verdict should stand. YEATES J. The charge which I gave to the jury on the trial has not been questioned in point of law. It appeared clear to me, that if a vessel received her death wound by events which occurred during the voyage insured, without default in the master or crew, it was of no moment when the loss was ascertained, although subsequent to her arrival at her port of destination. It was left to the jury to decide whether the injuries were received during the outward passage to the island of Madeira; and the case chiefly turned on the credibility of the testimony of the captain and mate. I gave the jurors the instructions which I deemed proper as to weighing their testimony, telling them, at the same time, that, as mercantile men, they were much more competent 1817. PETERS judges of the facts than I could be; and that it was their peculiar province to determine the credibility of the witnesses. I see no reason to disapprove of their verdict, and and another therefore concur in denying a new trial. V. The Phoenix GIBSON J. expressed his concurrence. New trial refused. The Commonwealth against WOELPER and others. QUO WARRANTO. Philadelphia. - Saturday, On the trial of a quo war ranto in which evidence may and transac THIS was an information in the nature of a quo warranto against George G. Woelper, George Honey, Frederick Frické, John N. Fisher, and Frederick Hackley, five of the the issue is on the legality of defendants, for usurping the office of vestrymen of the corpo- the election, ration called, The Ministers, Vestrymen, and Church-war- be given of dens of the German Lutheran Congregation in and near the conversations city of Philadelphia, in the state of Pennsylvania: and against tions previous Henry Block, William Berg, and John Kohler, the three the election, other defendants, for usurping the office of church-wardens connected in the same congregation. The defendants pleaded, that they were duly elected in the several offices mentioned in the information, on the 6th January, 1816, and that they had previous noused the said offices since; whereupon, issue was joined. has been The case was tried at Nisi Prius, before GIBSON J. and a verdict given for the Commonwealth. if they were with, and might have an influence on it, though no tice thereof given. Books of a corporation are evidence in disputes be tween mem bers of the corporation, especially if produced on the call of the adverse party. But they are not evidence against strangers. Where a charter required two-thirds to form a quorum, and it was stated on the minutes, that on due invitation the corporators met, and it was not usual to mention on the minutes the names or number of those present, this was held to amount to saying, that two-thirds assembled. Where a congregation was incorporated, and a power given "to make rules, bye-laws, and ordinances, and to do every thing needful, for the good government and support of the congregation," held, that the corporation had power to make a bye-law vesting the appointment of inspectors of their elections in the president of the corporation. So also, that they had a power to make a bye-law prohibiting tickets from being counted at an election, which had other things on besides the names. Having an eagle engraved on such tickets is a violation of the bye-law. Under the charter of the German Lutheran Congregation in and near the city of Philadelphia, aliens otherwise qualified are entitled to vote. An inspector of an election may be voted for as a candidate. GIBSON J. diss. 3 SR 29 30 SC 2571 1817. The Commonwealth V. A motion was made for a new trial, and the following were assigned as reasons: 1. That upon the trial, the Commonwealth was permitted to give evidence of conversations between individuals and of and others. transactions at meetings of the corporation, and of certain WOELPER members of the congregation, and of certain voluntary societies, without any previous specification or notice that such evidence would be offered on the trial; and, moreover, that such evidence was irrelevant to the issue in the cause. 2. That upon the trial, the Commonwealth was permitted to give in evidence a certain instrument purporting to be a bye-law of the said corporation, without previous proof that it had been duly enacted as a bye-law by a quorum of twothirds of the corporation convened upon notice, according to the charter and confirmatory act of assembly. 3. That upon the trial, the Judge in his charge to the jury stated, that the inspectors of the corporation election on the 6th January, 1816, had illegally received and counted the votes of aliens; that aliens were not entitled to vote at such elections, although they were communicating and contributing members of the congregation above the age of 18. 4. That on the trial, the Judge in his charge to the jury stated, that in consequence of the provisions of the said instrument purporting to be a bye-law of the said corporation, the inspectors had illegally received and counted certain tickets marked with an eagle; for, that such tickets ought not to have been counted, although the voters who voted them were members of the congregation, entitled in all other respects to vote, and have their votes counted at the said election. 5. That the Judge charged the jury, that the votes given in favour of Frederick Hackley, one of the defendants, could not be admitted, nor the return of his election as one of the vestrymen received, inasmuch, as the said Hackley was appointed and acted as one of the inspectors of the said election. Dallas and Rawle, for the defendants. J. R. Ingersoll and Binney, for the Commonwealth. TILGHMAN C. J. This is an information in the nature of a quo warranto against the five first named defendants, for |