The court
(Bay, Johnson, Trezevant, and Brevard, Justices, in the sbsence of Grimke, J and Waties, J.)granted a new trial: being of opinion, that the evidence given to prove that the vessel was not seaworthy at the time of her departure from port, immediately after the contract, was of such a nature, as should have indo*255cod tbe jury to. have found against the plaintiffs ; unless some evidence had been brought before them, to remove the very strong presumptions such evidence was calculated to produce. And as no evidence to this effect waspioduced, the court considered that the verdict was contrary to evidence, and ought to be set aside : more especially as the plaintiffs might have examined witnesses in Nassau, who could have given evidence on the point, so as to satisfy the jury more completely respecting the state of the vessel, when she arrived there. The court said, that the question of barratry could not be considered in the case ; since, if the vessel was unsound when she sailed, the barratry of the captain could not relieve the plaintiffs, or restore validity to a contract which was void in the •beginning.
Desaussure and Ward, for defendants. Turnbull and Drast. ton, for plaintiffs.New trial granted.
Note. If a ship sail upon a voyage, and in a day or two becomes leaky, and founders, without a visible and adequate cause, the presumption is, that she was net seaworthy when she sailed. See Park. 221 in a note.