¶1The opinion of the court was delivered by
¶2In this cause, as in many others, we feel the loss of our brother Smith. As the cause was tried before me, it was not my intention to give any opinion, but in case of necessity. It has now become necessary. I shall only say, however, on the points of law, that I have found no reason to alter the opinion delivered on the trial; and in that opinion judge Brackenridge concurs with me. The law being settled, the merits of the case rest on the facts, whether the vessel was in proper condition at the time the injury from the rats took place, and whether this' injury took place before or after the commencement of the risk insured against, and without the neglect of the captain. To these points the parties gave very little evidence oil the trial, nor did their attention seem to have been turned towards them. All the proof made by the plaintiff was that the vessel performed her outward voyage in good time; but as to her condition, or the condition of her cargo, there was no evidence. It appears that there are several more actions depending on the same policy; and now that it is understood, on *601what points the cause turns, it may be expected that the merits will be more fully investigated. The court are of opinion that' it will be most conducive to justice to hold the present case under advisement, till a trial is had in one of the other actions. If the jury find again for the plaintiff, there will be no reason for a new trial in this case; but if a verdict shall be given for the defendant, it will be proper to grant a new trial, unless the parties themselves agree on some other arrangement.
¶3Cur. adv. vult.