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 W.ere bound to perform; 2. That the vessel insured was not -captured and condemned -as in the declaration is mentioned; and, 5. That the vessel insured was not seaworthy: on which pleas is s ues, vv'e 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 defondants 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 judgmen should be reversed.

This- court does not think that the, refusal of an inferior court to receive an additional plea, or to amend ohe already filed, can evér 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 eyery 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' ™ore- 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 pit-as. 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 tor 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 maybe td admit in evidence, on th.e general issue in an a'ction of covenant oh 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 oh this sjibject is more - inflexible than that, in actions on deeds, all special matter qf defence must be pleaded, ' Of this rule it is very certain,,from a.mere inspection of the record^ that the defendants cannot allegé ignorance. If every thing, then,, which is relied Orí to avoid a contract under seaUmust'.be: pleaded, it .will, at once, be conceded'1 that nobe of the; matter of. fere'd'in evidence .applied to either of the-pleas/.- The defendants could not1, thus' set up an éxcúse- for-not doing'that which, by one of the pleas, they professed to have-done ; ancT, sis to the other pleas, Which-denied the capture ánd : 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 npr misrepresentation, as to the value of the vessel, or her age, or'tonnage, could be received in evidence, -under either of these -issues, ho more than infancy or cover* ture, on a plea of non est factum; for, most certainly, nohe of the matters here offered by the defendants, the rejection of which occasioned these exceptions, .went, ip any- degree, to prove either of the pleas on which isr sue 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, at1 the time of capture. As the defendants have not, iii either of their. •pleas, relied on a deviation, itinay be doubted whether any evidence of that feet 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 Murray was not competent evidence t® prove that fact. If all the proceedings in the admirally had been read by the plaintiff without any pre. vious 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 £ them, while the -plaintiff could not have madeu„e 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 válue, if, in the' opinion of the court, it was competent for the jury, urider any of the issues joined, to inquire jnto 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.