
    Don Antonio De Areos vs. The So. Ca. Insurance Company.
    Where the facts relied on to prove a deviation in a voyage fiom the policy were unsatisfactory, the court granted a new trial for a more complete investigation.
    Tried before his honor Judge Johnson, in Charleston, May Term, 1831.
    THIS was an action of assumpsit to recover for a total Joss on a policy of insurance on goods for the schooner La Carmen, Captain Martelo, from Havana to Charleston. The plaintiff proved the policy, which bore date December 37, 1816, and was for $ 6,500, also his interest on the property on board. He then adduced the protest, which set forth that the schooner sailed from Havana on her intended voyage, the 35th December, 1816, with her said cargo, the property of the plaintiff, and proceeded with, light and variable breezes and a strong current to leeward : that at 9 o’clock, a. m. on the 4th January, in latitude 34° 45" and longitude 74° 30' meridian of Cadiz, they descried a sail to windward, which bore down on the schooner, and chased her until 3 o’clock, and then captured her : that the capturing vessel proved to be a Carthagenian privateer, who took out the officers, and all the crew of the schooner and put them on board the privateer. On the 13th, the captors landed captain Martelo and his pilot ashore, between Puerto Escondido and Jamco, whence they proceeded to Matanzas, and upon their arrival there, made their protest on the 17th, which was renewed at Havana; The La Carmen, her papers and crew were all carried off, and the plaintiff having proved his abandonment, claimed for a total loss, which by the brokers statement, not disputed, amounted to $> 6370, with interest from March 4th, 1817, when the demand was made.
    The defence set up was wilful delay on the voyage, amounting to deviation. To prove which, the defendants examined Sears Hub bel, captain of the schooner Martha, who deposed that he sailed from the Havana,- on the 2d January, 1817, with wind to the East and N. East; that the wind continued favorable, and that he arrived at Charleston on the 7th, after five days passage : that he did not find the current deviate from the usual set and velocity : that his answers were from the log book of the Martha, and he believed were correct.
    The next witness was John Baker, captain of the schooner Eliza Ann, who deposed, that he was in the Havana in December, 1816, and sailed thence, on the 25th same month for Charleston ; that he arrived safe in Charleston, after a passage of 11 days ; that he was not obstructed by adverse or unusual currents; that the winds were strong on the day she left Havana ; for in the evening'he had to heave to, and Continued so during the whole passage. Whilst in Havana, there were American vessels offering for freight to Charleston, cheaper than on board Spanish vessels.
    The defendant here closed, and the plaintiff read the examination of Dow Jtcehal of Havana, taken on commission, and who testified that he knew the plaintiff to be a Spaniard, and a merchant of respectability and good character.
    Here the testimony closed, and the defendants counsel, then contended, that as the La Carmen sailed on the 25th and was captured on the 4th, at no great distance from the port whence she sailed, her delay was tó be presumed voluntary and fraudulent, and therefore amounted to a deviation.
    The plaintiffs counsel then objected, on the other side, that there was no proof of voluntary delay, but just the reverse, for the vessel had light winds and adverse currents, and it did not follow, that because another vessel, which sailed the same day made the voyage in II days, that the La Carmen might have done the same thing. He contended that deviation was a question of law and of fact.
    The presiding judge, after defining what the law meant by a deviation, and stating its consequences, left it to the jury ta decide whether the facts proved, amounted to a wilful delay, and if so, they were to find for the defendants, which they accordingly did.
    A motion was now made to set aside the verdict and for a new trial, on the ground that the verdict for the defendants was not only unsupported by any evidence, but in direct opposition to the evidence given in the case, which was fully sufficient to enable the plaintiff to recover.
    
      Prioleau, for the motion.
    
      Ford, contra.
   Mr. Justice Richardson

delivered the opinion of the court:

I am of opinion that a new trial should be granted, in order that the charge of a wilful delay in the voyage may be further enquired into, and the case reconsidered, inasmuch as the testimony was unsatisfactory upon that pointy and therefore I deem it worthy of a second investigation before a jury.

Justices Huger, Gantt and Johnson, concurred.

Colcock, Justice, dissented,  