Airey et al. v. Merrill. courts to insert it by construction. I should apprehend some difficulty in making such a construction at this day. Taking a more practical view of this question, it does not seem to me that a contract by the charterer to be responsible to the owner for losses by accidental fire is in its nature unreasonable or unlikely to be made. The hirer, in this case had the entire possession, command, and navigation of the vessel. He appointed the master and hired the crew. They were his servants. The owner might well say to him, if a fire occurs through the negligence of your servants on the high seas, or in a distant port, I shall have no proper means of proving that negligence. I do not choose to leave any such question open. You must take the responsibility for loss by fire. It was upon grounds of public policy, similar to these, that the common law held carriers liable for accidental fire, and though that public policy did not embrace charterers of vessels, it shows that owners may find reasons of a similar character for protecting themselves by contract from similar dangers. Upon the whole, my opinion is, that the fire by which this vessel was destroyed, was not a peril of the sea within the exception in the covenant, and consequently the charterer was liable for the loss. As to the damages, as the libellant did not appeal, he cannot claim greater damages in this Court than were allowed in the District Court. Stratton v. Jarvis, 8 Peters, R. 4; Canter v. The American Ins. Co., 3 Peters, R. 318. The respondents have made some suggestions, by way of argument, to reduce the amount of damages decreed below; but I think the decree should not be disturbed in this particular. The respondents did not assign as error in that decree, that the damages, if any should be allowed, were excessive. But if they had done so, I do not think any error has been shown. It is urged that the value of the vessel as she lay on the shoal should be Airey et al. v. Merrill. taken; and this is correct, provided the stranding was not upon a well-known shoal, or was effected by causes beyond the control of the master. There is difficulty in coming to a conclusion, favorable to the respondents, on either of these points. I have not thought it necessary to go into a minute examination of the evidence concerning them, because I am of opinion that I cannot treat the value of the vessel as materially diminished by the stranding. It is not so pleaded in the answer, which admits her value to be $2,000, the sum fixed upon by the District Court. Nor does the evidence satisfactorily show, that the position of the vessel on the shoal was such, as exposed her to much peril, or would have occasioned any considerable expense to get her off.. There is not a little discrepancy between the evidence which comes from the vessel and from the shoresmen who went on board. And, considering that the burden is on the respondents, to bring the case within the exception in their covenant, by showing that the vessel's value was reduced, before she was burnt, by a danger of the sea, I am not satisfied that they have sustained that burden. The libel claims the charter money for one month and a half, and the answer denies that any thing ever became due on this account. But it does not allege that the vessel was unseaworthy when she sailed on her voyage from Frankfort, and if she were not, I perceive no reason why this monthly hire was not properly allowed by the District Court. The decree of the District Court is affirmed with costs. Palmer v. Fiske et al. COURTLAND PALMER US. JOHN FISKE et al. A verdict in an action on the case for an injury to the plaintiff's mill, by causing the water to flow back thereon, will not be set aside for excessive damages, unless the Court can see that the jury fell into some important mistake of computation, or departed from some rule of law given to them for their guidance, or made deductions from the evidence plainly not warranted by it. Errors of judgment of the engineer appointed by the defendant, in not delineating on the plan certain objects which might have tended to support the defence, do not afford ground for a new trial. Evidence must be not only in fact newly discovered and not cumulative, but the party must have used due diligence to discover it before the trial, to induce the Court to grant a new trial. THE case is stated in the opinion of the Court. CURTIS, J. This was an action on the case for unlawfully obstructing the waters of the Penobscot River, to the injury of the mills of the plaintiff. It appeared at the trial, that some of the defendants were interested in mills on that river, which, before the time of the alleged nuisance, had been operated by means of a dam, whose effect was not complained of. This dam having been destroyed by a flood, the defendants built another in its place, and the plaintiff alleged that this new dam so obstructed the water, as to be injurious to his mills above. The jury found a verdict for the plaintiff, and assessed the damages at the sum of $10,650. Upon the coming in of the verdict, the defendants moved for a new trial, because the damages were excessive; and, subsequently, for newly discovered evidence. These grounds are distinct from each other, and must be separately considered. And first as to the excessive damages. Under the ruling of the court, damages were to be assessed by the jury for the injury suffered by the plaintiff during the year 1849; and as it appeared that six saws were, during that Palmer v. Fiske et al. year, under lease to Gulliver & Gilman, the jury were instructed, that no damages could be recovered on account of obstruction of those parts of the mills, the declaration not being so framed as to enable the plaintiff to recover for an injury to his reversion. It appeared that the mills contained sixteen single saws, two gangs, equal to four saws, and small machinery, reckoned by the only witness who spoke upon this subject, as equal to four saws. The whole was equal, according to this computation, to twenty-four saws; so that striking out the six which were under lease, the machinery in the hands of the plaintiff, for the obstruction of which he could recover damages in this action, was equal to eighteen saws. The important testimony, bearing directly on the question of damages, came from Roberts, Mayo, and Dean. Roberts hired the entire mills in 1848, and paid a rent of twenty thousand dollars for that year. He testified, in substance, that during the year 1848, he was so much troubled by backwater, that he hired other mills in the spring of 1849; that the backwater was the cause of his declining to hire these mills in 1849; that during that year a sluice way was made for carrying off the edgings, and this relieved the difficulty in part, and that he returned to these mills in 1850, and hired them for fourteen thousand dollars. That this difference between fourteen thousand dollars and twenty thousand dollars was principally owing to back water. Mayo, who was the plaintiff's agent for managing the mills, testified that in 1848 he got about twenty thousand dollars net rent for the mills, and in 1849 about four thousand dollars; that in 1850, after building the sluice way and making some other improvements, he rented the mills for fourteen thousand dollars; and that he knew of no cause for this difference except backwater. Dean, the agent of the Stillwater Canal Company, whose locks are in the immediate neighborhood of these mills, and who said he was well acquainted with them, gave an Palmer v. Fiske et al. opinion that the annual value of each saw was diminished by backwater two hundred dollars per annum. It was argued at the trial, on behalf of the plaintiff, that as he got twenty thousand dollars for the mills in 1848, and only four thousand dollars in 1849, his damages were sixteen thousand dollars. On the other hand, as the mills rented in 1850 for fourteen thousand dollars, it was urged that the damages for 1849 could not be greater than six thousand dollars, even if the diminution of rent was attributable solely to the act of the defendants, which was denied. It is manifest the jury did not adopt either of these views, for they allowed the plaintiff something more than six thousand dollars, exclusive of interest, and much less than sixteen thousand dollars. is clear, also, that they did not adopt the opinion of Dean, for they have fixed the annual injury to each saw in the possession of the plaintiff at a much higher sum than two hundred dollars. It Now what I have to determine upon this motion is, not whether I should have found this verdict, but whether I can clearly see that the jury must have fallen into some important mistake in computing the damages, or must have departed from some rule of law, or have made deductions from the evidence, which are plainly not warranted by it. To assess the damages in this case, was not only within the exclusive province of the jury, but it was a matter to be deduced by them from evidence, which, when carefully examined, did not afford any precise data upon which to found a computation. Take, for instance, the view presented by the plaintiff, that he was entitled to sixteen thousand dollars, because he got twenty thousand dollars in 1848, and only four thousand dollars in 1849, for the use of these mills. It was for the jury to consider whether this difference was attributable solely to the act of the defendants, or partly to other causes, such as the scarcity of logs, the state of the water, and the consequent difficulty of getting logs to the mills at the usual times, as well as the |