
10 U.S. 206 (1810)
6 Cranch 206
THE MARINE INSURANCE COMPANY OF ALEXANDRIA
v.
HODGSON.
Supreme Court of United States.
March 17, 1810.
*211 C. Lee, for the plaintiffs in error.
Swann, contra.
*217 LIVINGSTON, J. delivered the opinion of the court as follows:
This is an action of covenant, on a policy of insurance, to which the defendants pleaded, 1. That they had performed all things which, by the policy, they were bound to perform; 2. That the vessel insured was not captured and condemned as in the declaration is mentioned; and, 3. That the vessel insured was not seaworthy: on which pleas is sues we taken by the plaintiff.
There were, also, five special pleas, to which there were demurrers, all of which were allowed by the circuit court, except the one to the sixth plea, which on a writ of error to this court, heretofore brought, was allowed here, and the cause then remanded to the circuit court, for further proceedings to be had therein. On the return of the cause to the circuit court, the defendants moved for leave to file, two additional pleas; which motion was denied; and is now relied on as one of the errors for which the present judgment should be reversed.
This court does not think that the refusal of an inferior court to receive an additional plea, or to amend one already filed, can ever be assigned as error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of every case, than by any precise and known rule of law, and of which the superior court *218 can never become fully possessed, that there would be more danger of injury in revising matters of this kind, than what might result now and then from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial, or not to continue a cause, but in neither case can the party be relieved by a writ of error: nor is the court apprized, that a refusal to amend or to add a plea was ever made the subject of complaint in this way. The court, therefore, does not feel itself obliged to give any opinion on the conduct of the inferior court, in refusing to receive these pleas. At the same time, it has no difficulty in saying that, even in that stage of the proceedings, the circuit court might, if it had thought proper, have received these additional pleas, or admitted of any amendment in those already filed.
The court below having refused to receive these pleas, the trial proceeded on the three on which issues were joined; and the defendants offered, under them, or some of them, to prove that it was one of the rules of their office, that every order for insurance shall contain as full a description as can be given of the age, tonnage, and equipment of the vessel; and that it was always their practice to make no insurance on a vessel beyond her reasonable value, according to the representation given of her age, tonnage, and equipment; and that such rule was known to the plaintiff; and that, to induce them to insure eight thousand dollars on the brig Hope, the plaintiff represented her as a stout, well built vessel of about 250 tons burden, and from six to seven years old, and that she was worth ten thousand dollars; in consequence of which, they insured her for eight thousand dollars; that, on the contrary, she was not a well built vessel of 250 tons burden, and was not from six to seven years old, but was more than eight and a half years old, and had been ill built; and that this difference between her true and her represented built, age, and tonnage, was material to the risks of the voyage insured. This evidence, being objected to, was deemed inadmissible; and this court is now called on to say whether, in this opinion, there was any error.
*219 However desirable it may be to admit in evidence, on the general issue in an action of covenant on a policy of insurance, every thing which may avoid the contract, or lessen the damages, as is done in actions on the case, this court does not know that it possesses the power of changing the law of pleading, or to admit of evidence inconsistent with the forms which it has prescribed. No rule on this subject is more inflexible than that, in actions on deeds, all special matter of defence must be pleaded. Of this rule it is very certain, from a mere inspection of the record, that the defendants cannot allege ignorance. If every thing, then, which is relied on to avoid a contract under seal, must be pleaded, it will, at once, be conceded that none of the matter offered in evidence applied to either of the pleas. The defendants could not thus set up an excuse for not doing that which, by one of the pleas, they professed to have done; and, as to the other pleas, which denied the capture and seaworthiness of the vessel, it will not be pretended that any of this matter supported either of them. The same remarks apply to the second and third bills of exception. Neither fraud nor misrepresentation, as to the value of the vessel, or her age, or tonnage, could be received in evidence, under either of these issues, no more than infancy or coverture, on a plea of non est factum; for, most certainly, none of the matters here offered by the defendants, the rejection of which occasioned these exceptions, went, in any degree, to prove either of the pleas on which issue had been joined.
The fourth exception is to the refusal of the court to admit the deposition of William Murray, which appeared among the admiralty proceedings, and which was offered by the defendants to prove that the vessel was not in the due course of her voyage when she was captured, and the condition she was in, at the time of capture. As the defendants have not, in either of their pleas, relied on a deviation, it may be doubted whether any evidence of that fact were admissible; but, if it were proper, for the purpose of discrediting any testimony which had been offered by the plaintiff, to show where the Hope had been taken, it is not thought that *220 the circuit court erred in instructing the jury that the deposition of Murray was not competent evidence to prove that fact. If all the proceedings in the admiralty had been read by the plaintiff without any previous agreement, on the part of the defendants, to save every objection to their contents, excepting the matter of authentication, the court will not say that the defendants might not have insisted on using any deposition, among the papers, which made in their favour: but, as the plaintiff could have read them for no other purpose than to prove the libel and condemnation, and must have attempted to prove no other fact by them, for which purpose it is expressly stated that they were offered, and as the defendants had, by their agreement, explicitly reserved to themselves every objection to their contents, it does not appear reasonable to permit them to select a deposition, as evidence of them, while the plaintiff could not have made use of that, or any other, if ever so favourable to himself. The circuit court, therefore, did not err in the instruction which it gave to the jury on this subject. This court cannot forbear remarking here, that it can never be necessary, in order to prove a condemnation, to produce any thing more than the libel and sentence; although it is a frequent but useless practice to read the proceedings at length.
The fifth exception is taken to a refusal of the circuit court to direct the jury to find damages for the value of the vessel, as agreed in the policy, and, conditionally, for her actual value, if, in the opinion of the court, it was competent for the jury, under any of the issues joined, to inquire into the real value of the vessel. As it had already been decided, and, as this court thinks, correctly, to receive no evidence of the real value of the vessel, there was no error in refusing to give this direction: and, although the plaintiff, at length, consented to permit the defendants to give evidence of the real value of the vessel, saving objections to the competency of such evidence, upon any of the issues of fact, and the jury, thereupon, found conditional damages, this court is of opinion that, as evidence of the real value of the vessel, under any of these issues, was incompetent, and as objections to its competency *221 were saved to the plaintiff, the circuit court did right in giving judgment for the damages found by the jury, according to the value of the vessel, fixed in the policy; which judgment this court affirms with costs.
