Spencer, Ch. J.
delivered the opinion of the Court. The principal special cause of demurrer is, that the 5 th and 6 th pleas amount to the general issue. It is, also, objected to them, that they are bad in substance, in not admitting the averments in the declaration. In the case of the Bank of Auburn v. Weed, (19 Johns. Rep. 300.) we thus laid down the rule : any matter of defence which denies what the plaintiff, on the general issue, would be bound to prove, may, and ought to be given in evidence under the general issue, and a plea denying such facts, is bad on special demurrer % [333] but any ground of defence which admits the facts alleged in the declaration, and avoids the action, by matter which the plaintiff would not be bound to prove or dispute, in the first instance, may be specially pleaded. The case of Hussey v. Jacob, (1 Lord Raym. 87.) was referred to in the case cked. That case was thus: An action of assumpsit was brought against the acceptor of a bill of exchange. The defendant pleaded in bar, the statute of gaming, (16 Ch. II. ch. 7.) by which the bill was rendered void. One of the objections was, that the defendant ought to have pleaded the general issue, and given the matter pleaded in evidence, the statute having avoided the contract. The Court decided, that where the defendant has special matter consisting only of bare matter of fact, but intermixed with matter of law, which will avoid the charge or action of the plaintiff, he is not obliged to plead the general issue, but may plead it specially, for otherwise he would be obliged to commit a point of law to the jury, who are ignorant of it, which, the Court say, would be absurd. The principle laid down in the case cited, is, in my judgment, a sound one, with this qualification annexed to it, that such matter of defence must admit the facts alleged in the declaration, and avoid them by matter which the plaintiff would not be bound to prove in the first instance, provided the general issue only had been pleaded. (1 Chitty’s Pl. 497. 1 Tidd’s Pr. 599, 600.)
The first and second counts of this declaration set forth a good cause of action; a loss of voyage by the perils insured against; and the plaintiff was bound, in the first instance, to prove no more, to maintain his action, than the facts he had alleged. He did not set forth facts which show that the ship was unseaworthy, by reason of her being unsound or rotten; nor any incapacity in the ship to prosecute her voyage, on account of her being unsound or rotten. On the contrary, it would seem, that her innavigability proceeded from injuries sustained by stormy winds, tempestuous weather, and the perils of the sea, whereby she became leaky, greatly broken, and damaged; and that she could not receive her necessary repairs at St. Johns, and could not proceed safely to sea, to procure repairs elsewhere5 and, therefore, she was condemned and sold. The pleas [334] admit the cause of loss stated in the declaration, but set up new matter, which the plaintiff could not have been required to prove ; and this new matter involves a question of law, on which the defendant has a right to the judgment of the Court, according to the sound doctrine in Hussey v. Jacobs.
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Spencer, Ch. J.
delivered the opinion of the Court. The principal special cause of demurrer is, that the 5 th and 6 th pleas amount to the general issue. It is, also, objected to them, that they are bad in substance, in not admitting the averments in the declaration. In the case of the Bank of Auburn v. Weed, (19 Johns. Rep. 300.) we thus laid down the rule : any matter of defence which denies what the plaintiff, on the general issue, would be bound to prove, may, and ought to be given in evidence under the general issue, and a plea denying such facts, is bad on special demurrer % [333] but any ground of defence which admits the facts alleged in the declaration, and avoids the action, by matter which the plaintiff would not be bound to prove or dispute, in the first instance, may be specially pleaded. The case of Hussey v. Jacob, (1 Lord Raym. 87.) was referred to in the case cked. That case was thus: An action of assumpsit was brought against the acceptor of a bill of exchange. The defendant pleaded in bar, the statute of gaming, (16 Ch. II. ch. 7.) by which the bill was rendered void. One of the objections was, that the defendant ought to have pleaded the general issue, and given the matter pleaded in evidence, the statute having avoided the contract. The Court decided, that where the defendant has special matter consisting only of bare matter of fact, but intermixed with matter of law, which will avoid the charge or action of the plaintiff, he is not obliged to plead the general issue, but may plead it specially, for otherwise he would be obliged to commit a point of law to the jury, who are ignorant of it, which, the Court say, would be absurd. The principle laid down in the case cited, is, in my judgment, a sound one, with this qualification annexed to it, that such matter of defence must admit the facts alleged in the declaration, and avoid them by matter which the plaintiff would not be bound to prove in the first instance, provided the general issue only had been pleaded. (1 Chitty’s Pl. 497. 1 Tidd’s Pr. 599, 600.)
The first and second counts of this declaration set forth a good cause of action; a loss of voyage by the perils insured against; and the plaintiff was bound, in the first instance, to prove no more, to maintain his action, than the facts he had alleged. He did not set forth facts which show that the ship was unseaworthy, by reason of her being unsound or rotten; nor any incapacity in the ship to prosecute her voyage, on account of her being unsound or rotten. On the contrary, it would seem, that her innavigability proceeded from injuries sustained by stormy winds, tempestuous weather, and the perils of the sea, whereby she became leaky, greatly broken, and damaged; and that she could not receive her necessary repairs at St. Johns, and could not proceed safely to sea, to procure repairs elsewhere5 and, therefore, she was condemned and sold. The pleas [334] admit the cause of loss stated in the declaration, but set up new matter, which the plaintiff could not have been required to prove ; and this new matter involves a question of law, on which the defendant has a right to the judgment of the Court, according to the sound doctrine in Hussey v. Jacobs.
If the survey, admitted in part, in the first and second counts, but more cully set forth in the pleas, amounts to a declaration by the s... veyors, that the ship was unseaworthy by reason of her being unsound or rotten, and that she was incapable of prosecuting the voyage from that cause, it is decisive upon the rights of the parties. They have seen fit to stipulate, “ that if the said vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage, on account of her being unsound or rotten, then the assurers should not be bound to pay their subscriptions on the policy.” They have made the survey, however the facts may be, conclusive between them; and this being their contract, they are bound by it, and no Court has a right to alter it. (1 Condy’s Marsh. on Ins. 159. b. in the notes.) From the plaintiff’s allegations, which are admitted by the plea, with the additional facts which the pleas assert as also appearing in the survey, the case stands thus : The ship was found injured in her planks and timbers, so that she' could not receive her necessary repairs at St. John’s, and could not safely proceed to sea to procure such repairs elsewhere; and a great part of the timbers and planks, from the stern-posts to the stem, on both sides, were entirely rotten ; that the repairs of the ship could not be done there, and she was not able, in her then present state, to go to sea, and she was, therefore, condemned and sold. In the case of Steinmetz v. The United States Insurance Company, (2 Sergeant & Rawle’s Rep. 296.) the policy contained the same clause, in almost the same words, as in this policy. In that case, a survey was had, and the Court considered it as settled by several cases, in which the construction of a similar clause had been discussed, that where the condemnation was for unsoundness from decay, and for no other cause, the underwriter was discharged. In that case, the surveyors certified, ' that on examination of the schooner, <6 her .stern, apron, [335] bends, and the most part of her timbers, are decayed, as also a considerable part of her plank, and that it would be eligible to sell her in her present state.” Tilghman, Ch. J. was of opinion, that the condemnation was founded solely on decay, no other cause being mentioned. He observed, that it was not said, in express terms, that the vessel was unsound or rotten, but it was said, that her principal parts were decayed, which is the same as rotten, and no other cause is assigned for her not being seaworthy ; that where-the particular parts found to be decayed are mentioned, and afterwards the general conclusion is drawn, that the vessel was not seaworthy, he considered rottenness as the cause of condemnation. Yates, Justice, thought it unreasonable to expect that the return of the surveyors should conform to the expressions used in the policy, which was not open to their inspection. It was enough if, in fact and substance, it agreed with it j and he considered the survey, in that case, as exhibiting a particular statement of facts equivalent to general unsoundness or rottenness in the hull; and that it brought the vessel within the true meaning of the clause in the policy. I can only express my entire acquiescence in the reasoning of these distinguished Judges; it seems to me impregnable and conclusive. The return of the surveyors, In this case, states, that a great part of the timbers and planks, from the stern-posts to the stem, on both sides, were entirely rotten ; that repairs could not be made at St. John's, and that the ship was not able, in her then state, to go to sea. Now, her inability to encounter the further prosecution of the voyage, is attributed to no other cause than to the rottenness of her essential timbers and planks ; and the general conclusion of incapability to proceed to sea, is a conclusion drawn from these facts; and this, in effect, amounts to a declaration, that she could not go to sea from rottenness. The allegation in the survey, that the ship was found injured in her planks and timbers, connected with the fact, that her timbers and planks were rotten, do not show that the injury arose from the perils of the sea, disconnected with the specified rottenness. The implied admission in the survey, that the ship was reparable, does not contradict the fact that she was unseaworthy from rottenness, for ships ma[336] terially rotten and decayed, may be repaired, The con^ract between the parties is, that if the vessel, upon a regular survey, should be thereby declared unseaworthy, by reason ber being unsound or rotten, then the assurers should not be bound by their subscription on the policy. That this event has occurred, appears tome to be so plain a proposition, that I abstain from pursuing the inquiry any further. There must be judgment for the defendants, with leave to the plaintiff to reply, on payment of costs.
Judgment for the defendants, accordingly.