
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1802.
    Fuller v. Alexander.
    In a question of sea-worthiness, held, that it belongs peculiarly to a jury, to weigh complicated and contradictory evidence, and to judge of th’e character and credit of witnesses: and where there has been, evidence on both sides, the court will not disturb the verdict, although, in the 'opinion of the presiding judge, it was contrary to the weight of evidence’; unless the preponderance is such as to induce the belief, that the jury must have mistaken the evidence.
    
      Assumpsit on a policy of insurance. The insurance was on a schooner át and from’ Jamaica to Charleston. The vessql sailed from Jamaica in' December, and kept company with other vessels a few days ; she then drifted upwards of a hundred leagues, and fan upon a rock of coral on the coast of Campeachy, and was lost. . . . ■
    The defence turned on her sea-worthiness at the time of the insurance. ' To' this point 'there' were three witnesses, certifying t'o circumstances, and delivering it as their opinion, that the vessel was not sea-worthy ; and three witnesses,' on the other side, deposed to circumstances, and delivered opinions of an opposite tendency. ■ The testimony,' however, of one of the plaintiff’s principal witnesses was somewhat suspicious ; and his credibility was rendered doubtful frQm'many circumstances which appeared to be true, and which were inconsistent with material facts he had sworn to. The jury found for the plaintiff; and this was a motion' to sét aside the yerdict, and for a new trial. '
    
    J. Ward, for the defendant,
    argued, that the verdict was contrary to the weight'of evidence, and to the opinion of the judge at the trial. Although a vessel is apparently staunch and sound, when insured, yet if she prove otherwise directly after, the underwriters shall not suffer. And the counsel cited, 2 Esp, Rep. 692, to shew, that the credibility of a witness maybe impeached by what he has said or written, inconsistent with what he swears at the trial. Cited Park, 220, 228.
    Turnbull, contra.
    
    If a vessel be sea.worthy when she sails, it is sufficient. If she be not seaworthy when she sails, the un•'derwriters shall be discharged, though the vessel should be captured. It may be conceded, that the insured toarrants the vessel to b£ sound when insured; and that it matters not, whether the real state of the vessel is represented to tho underwriters or not ? or whether the insured is acquainted with the unsoundness or not. Cowp. 148. This doctrine is admitted to be sound, but its application the present case is denied. Here there was contradictory evidence. The credibility of the witnesses, and the weight of evidence, were proper subjects for the investigation and consideration of the jury ; and the whole of the evidence, on both sides, was fairly laid before them, and they have decided thereon. The judge, at the trial, might have been of a different opinion from the jury; but his opinions on matters, of fact ought not to control theirs. Thq jurors, and not the judge, aro the constitutional and legal judges of such matters. It is for them to decide on the credibility of testimony delivered to them, and estimate the comparative weight of such testimony, where it goes to establish contradictory propositions. This court ought not to interfere with this great and incontestable right of juries. If the opinions of judges are to countervail the opinions of juries on questions of fact, tho boasted privilege of trial by jury is worth nothing. Indeed, where' the jury appear to have mistaken the evidence, which may be presumed in some cases where the weight of evidence is decidedly against the verdict, the court may grant a new trial: but it ought to be upon the clearest conviction, that the verdict is contrary to the truth of the case.
   Waties, and Trezev ant, Justices,

thought that a new trial ought to be granted, on the ground, that there was a manifest preponderance of evidence against the verdict.

All the other judges, even Grimke, J., who presided at .the trial, were of a contrary opinion, and that it would be contrary to legal principles to set aside a verdict in a case of this kind, where the, jury had founded it on evidence of facts, complicated and contradictory, which required an investigation into the. characters and credit of witnesses, whose testimony it was necessary to compare and weigh ; operations exclusively appropriated to the business and duty of the jury. 2 Str. 1142. 2 Burr. 665. 1 Wils. 22. 1 Burr. 396, 609. Cowp. 37. 2 Wils. 249. 3 Wils. 47. Doug. 359.

Motion for a new trial discharged.  