
    David Coffin versus The Newburyport Marine Insurance Company.
    An)' unnecessary delay during the course of a voyage, whether at sea or m port, amounts to a deviation.
    Under an insurance “to one or more ports heyond the Cape of Good Hope, one or more times, for the purpose of disposing of the outward cargo, and procuring a return cargo at and from them to her port of discharge in the U. S., with liberty to touch and trade,” &c., a voyage from the Isle of France to the Cape of Good Hope, and back to the Isle of France, was not protected.
    On a voyage insured as above, cotton was purchased at the Cape, with inten tian to sell the same at the Isle of F-ance, to which place it was carried; while there, the agent for the insured determined to bring it to the U. 8., and for that purpose it was repacked and invoiced at its value at the Isle of Frunce, which was higher than its cost at the Cape; and being captured and condemned on the homeward voyage, the underwriters were held answerable for the value as invoiced.
    This was an action of the case upon a policy of insurance, for a total loss by capture, and a previous partial loss by stranding. The policy was in the common form, and against the usual risks, including capture, detention, &c. It was dated March 2, 1805. By it the plaintiff was insured 15,000 dollars on the ship Eliza, G. Hartón master, and her cargo, viz., 5000 dollars on the ship, valued at 10,000 dollars, and 10,000 dollars on the cargo, from Neioburyport to one or more ports beyond the Cape of Good Hope, one or more times, for the purpose of disposing of her outward cargo, and procuring a return cargo, at and from them, or either of them, to her port of discharge in the United States of America, with liberty to touch and trade at any ports and places on her out ward and homeward passages, at 18 per cent, premium.
    At the trial of this action, which was had on a writ of review brought by the original defendants, before Sciuall, J., at the sittings here after November term, 1809, the plaintiff’s property, as owner of one half of the ship insured, was admitted; one David Cofin, Jun., being owner of the other half.
    * The ship Eliza, with a cargo belonging to the owners of the ship, and amounting to 32,154 dollars 81 cents, according to the invoice prices, (and with sundry adventures and articles on freight, to be accounted for by the owners, shipped by Moses Broivn and several other persons, upon different agreements,) sailed upon the voyage insured, and arrived in safety at (he Cape of Good Hope, and on the 24th of July, 1805, anchored in Table Bay. There, after a few articles of the outward cargo had been sold, and the master had determined to proceed to the hie of France, and was preparing for the voyage, and taking water on board, the ship, in a violent gale of wind, was driven from her moorings, and stranded. By this accident, the hull and rigging of the ship, and several articles of the outward cargo, were damaged, nud some of the cables were lost; and, in consequence of it, the whole outward lading was taken out and landed, and the ship was sent round from Table Bay to another bay of the Cape of Good Hope, called Seaman’s Bay. There sundry necessary repairs were made upon the ship, for which purpose, and by an embargo, which took place in October, and continued until the beginning of November, the ship was detained at Seaman’s Bay.
    
    During this detention, the master purchased 600 bales of Surat cotton, part of the lading of an English prize ship, captured by a French squadron. As many bales as the vessel would -hold, were put on board her while she remained at Seaman’s Bay, and with that lading she returned to Table Bay, arriving there early in November, 1805. There part of the cotton was taken out and landed, and some articles, before landed from the ship, were put on board, not exceeding in amount the sum of 6000 dollars ; and on the 23d of December, 1805, the ship, with 538 bales of the said cotton, and these articles of her original cargo, sailed for the Isle of France, where she arrived on the 29th of February, 1806.
    From the testimony of the master, it appeared that he had some expectation of selling the Surat cotton at the * Isle of France, and that the articles of the original cargo carried there would not, alone, have been a sufficient inducement for the voyage.
    At the Isle of France, the master landed and stored the cotton and other articles carried thither from the Cape of Good Hope, and had some further repairs done upon the vessel; and from his testimony, and from a letter addressed by him to his owners, dated May 21, 1806, and also from the deposition of a Mr. Hodge, it appeared that the ship, after her arrival at the Isle of France, and by the beginning of May, was put in readiness for a voyage to the Cape of Good Hope in ballast, and that the master intended to leave at the Isle of France the cotton and the articles carried thither of the original cargo of the ship, and to return from the Cape of Good Hope with such articles of his original cargo as he should find remaining unsold at the latter place; and that the master actually proceeded so far on this intended voyage as to have the ship unmoored and winded, or placed conformably to a regulation of the port, by which every ship preparing to leave the island is required to be unmoored, and to lie with her stern towards the town forty-eight hours at least previous to her sailing; that after remaining in this situation for several days, fastened only by a single hawser, with a pilot on board, having a permit to depart, and in complete readiness for sailing, waiting only for the master to come on board, the further prosecution of this voyage was prevented by intelligence of the surrender of the Cape of Good Hope to the English ; which intelligence was received about the 7th of May ; and that, before and after this intelligence, the master intended and endeavored to sell the cotton at the Isle of France, holding it at the price of 10 cents per pound; and at the time of writing the letter before referred to, expected to sell it at that price, and to purchase a return cargo, conformably to the orders received by him from his owners at Newburyport.
    
    * After the intended voyage to the Cape of Good Hope was thus interrupted, the master, not having been able to sell the cotton at a price that suited him, had it repacked and put in order for a return cargo to the United States; and having invoiced it as the property of his owners, at 10 cents per pound, put it on board the ship, and with that lading and 96 chests of tea, which he included in the same invoice, and in his bills of lading, as the property of his owners, and with 50 chests of tea, shipped for Jonathan Russell on his account and risk, and by a separate invoice and bill of lading, the ship sailed from the Isle of France on the 25th of July, 1806, homeward bound; the master having sold at auction, before he sailed, the articles of the original cargo carried to the Isle of France.
    
    On the 17th of November, 1806, on her homeward passage, the ship, with the said cargo and lading, were captured by the Melampus, a British sloop-of-war, and being carried to Bermudas, was there libelled
    From the, proceedings in the admiralty at Bermudas, which were read in evidence, it appeared that the master claimed the ship as the property of himself, and of the said Messrs. Coffin, owners, &c. ; that he claimed the cargo of the ship, including the said 96 chests of tea, as the property of the said Messrs. Coffin, Moses Brown, and others, all citizens of the United Slates; that the 96 chests of tea were proved, by bills of lading found concealed in the master’s pocket, and produced in evidence before the Admiralty Court, to be the property of Shillebeck &/■ Paine, French merchants residing at the Isle of France, and consigned on their account to Messrs. Perkins of Boston; that the Admiralty Court admitted the claim for the ship, and decreed her to be restored, and also admitted the claim for the 50 chests of tea shipped for J. Russell; but decreed a rejection of the claim for the 96 chests of tea, and condemned the same as enemies’ property, or otherwise ; and also rejected the claim for the rest of the cargo, and directed the same to stand over for another claim, it being doubtful * whether it had not formerly belonged to British subjects ; that the captors appealed from the sentence, as to the restoration of the ship, and the master appealed as to the condemnation of the cotton, and as to the refusal of freight for the 96 chests of tea. The ship, after an appraisement, and ponds given to account for the appraised value, being 516/. 13s. Ad. Bermudas currency, was restored to the master, and arrived at Newhuryport in September, 1807.
    On the 6th of December, 1806, the plaintiff, immediately after he had intelligence of the said capture, gave notice thereof to the defendants, and offered them an abandonment of the said ship insured by them, which they refused to accept; and on the 30th of September, 1807, after the arrival of the ship at Newhuryport, this offer was renewed, and the plaintiff then offered also an aban donment of the cargo as insured.
    There was evidence, at the trial, to show that Seaman’s Bay is a suitable place for repairing vessels, which is usually, and between the first of May and the last of September, necessarily resorted to for that purpose by vessels at Table Bay, which require repair to their hulls, &c.; and in making such'repairs in Seaman’s Bay, there are frequent interruptions and delays from swells of the sea, and the nature of the bay.
    During the stay of the ship at the Isle of France, it was frequently known and understood that British cruisers were about the island, and in consequence the government there refused permits of sailing to the vessels in port. Embargoes were also frequent there, and one took place in consequence of the capture'of the Cape of Good Hope by the English.
    
    The said Surat cotton, when purchased at the Cape of Good Hope, was taken for the particular account of the Messrs. Cofin, and was paid for with the proceeds of their goods, at the price of 65 rix dollars the bale ; and when the purchase was made, rix dollars were at three for one Spanish dollar; but when payment was made of two thirds * of the amount, three months after the purchase according to the bargain, rix dollars were at one and a half for a Spanish dollar. The usual price of Surat cotton, at the Isle of France, was from nine to ten cents per pound.
    On the part of the defendants, sundry depositions were offered, to prove that in the trial before- the Admiralty Court at Bermudas, the conduct of the master, in shipping the property of belligerents under cover of a false bill of lading, and in falsely claiming the said property as belonging to citizens of the United States, had been observed upon by the counsel, and was within the notice of that Court. But this evidence was rejected.
    The defendants admitted a partial loss by the stranding at the Cape of Good Hope. They resisted the demand of the plaintiff for a total loss, upon the ground, 1st, of a deviation from the voyage insured, which had taken place before the commencement of the homeward passage; 2d, of a forfeiture of neutrality, and wilful misconduct of the master and agent of the insured, which had been the causes of the condemnation of the cargo at Bermudas. And they contended, further, that, if liable, the cargo of cotton, on board at the time of the capture, was to be estimated at the original cost thereof at the Cape of Good Hope, and not at the assumed price and value when shipped at the Isle of France.
    
    The directions of the judge to the jury were, that neither the going to Seaman’s Bay for repairs, if that was a place suitable and necessarily resorted to for the purpose ; nor the lading there of a cargo of cotton ; nor the alteration in the lading made after the return to Table Bay; nor the proceeding, with the residue of the cotton and part of the original cargo, to the Isle of France, even if there was an intention of selling the cotton there, were to be considered as deviations from the voyage insured; — that a return to the Isle of France from the Cape of Good Hope, if the voyage for which the ship was prepared and in readiness to sail from the Isle of France, *had been prosecuted, would have been a deviation; but that, upon the facts proved, it did not appear that the vessel had actually sailed out of the course of the voyage insured; — yet that, if the preparation for that voyage had been an unreasonable delay and neglect of the voyage insured, amounting to a dereliction or suspension of it, then a deviation, or what amounted to it in legal construction, had been proved, incurring a forfeiture of the insurance and a discharge of the underwriters ; and they were not liable for any loss happening after-wards, upon the homeward passage of the ship insured ; — that, if the defendants continued liable at the time of the capture of the ship and cargo, the alleged misconduct of the master, in shipping the property of French merchants, including it in the same invoice with the cargo of the plaintiff, or covering it by a false bill of lading, or claiming it as the property of citizens of the United States, or in any thing appearing in the proceedings of the Admiralty at Bermudas, could not operate to discharge the underwriters ; unless it appeared that such misconduct of the master had been the cause of the condemnation of the cargo; and that if a total loss of the caigo was proved, the cotton on board at the time of the capture was to be estimated, as the property of the plaintiff and the other part-owner of the ship, according to the value of Surat cotton at the Me of France, when the shipment was there made of the homeward cargo.
    The jury found for the plaintiff upon his first count, in which he avers a total loss of the ship by the capture proved ; and also upon his second count, in which he avers a total loss of the cargo by the same capture, and a subsequent condemnation at Bermudas ; also upon the fourth and fifth counts, — the plaintiff setting forth, in the fourth count, a loss by the gale of wind and the stranding of the ship at the Cape of Good Hope, and in the fifth count, a demand for money laid out and expended ; and upon all the other counts the jury found for the defendants.
    The verdict upon the first and second counts was taken subject to the opinion of the Court, whether, under all the * circumstances of the case, the plaintiff was entitled to recover for a total loss of the vessel and cargo. And in the fourth and fifth counts, the damages were assessed by the consent of the parties, subject to an inquiry and award by commissioners or referees, as to the amount of the partial loss to be recovered on those counts.
    The defendants filed a motion for a new trial upon the report of the case by the judge, for the following reasons: —
    
      First. That the verdict was against the weight of evidence, and unsupported by any of the evidence as to one point; or else was contrary to the law as stated by the judge ; inasmuch as the judge directed the jury that, if the master of the vessel did intend to sell the cotton at the Me of France, then to proceed to the Cape, of Good Hope and return to the Me of France, and if his stay at the Me of France was prolonged in consequence, or in pursuance of that intention, this would be a deviation, and that the verdict must be for the defendants on the first and second counts ; and the counsel for the defendants apprehend that the affirmative of that proposition was proved by the whole weight of evidence relating thereto, and that this was not contradicted by any other evidence ; yet the jury" returned their verdict for the plaintiff on the first and second counts, and thereby either disregarded the direction of the judge as to the said principle of law, or else made up their verdict, in this particular, against the evidence in the cause, or without any evidence.
    
      Secondly. That the judge misdirected the jury, as the counsel for the defendants humbly apprehend, in the following particulars, viz.: —
    1. In instructing the jury that the lading of the cargo of cotton on board the ship at the Cape of Good Hope, afterwards unlading a part thereof there, and carrying the residue to the Me of France for sale, was not a deviation, provided the master intended to vest the proceeds of said cotton in purchasing a return cargo.
    *2. After instructing the jury that if the master did intend to sell at the Isle of France the cargo which he carried thither, then to proceed to the Cape of Good Hope, and to return again to the Isle of France; and if he prosecuted that intention, that this was a deviation ; the judge further instructed the jury, that the conduct of the master at the Isle of France in unlading said cargo, preparing to sail in ballast for the Cape of Good Hope, moving the vessel from her moorings, winding her, and lying two days and more, as required by the laws, there previous to leaving that port, and all his other preparations for his departure from that place, was not a prosecution of the said intention, and did not constitute a deviation , and that none of the acts of the master at that place constituted a deviation; unless his stay there was prolonged, as above mentioned, in consequence of his said intention.
    3. In instructing the jury that the value of the cotton was to be estimated according to its value at the Isle of France, and not according to its price or value at the Cape of Good Hope at the time when it was laden there, nor according to the price actually paid for it at the latter place.
    4. For that it appeared, on the trial, that the master, at the Isle of France, took on board said ship 96 chests of tea, the property of French merchants resident there, made a false invoice and bill of lading there, including the said tea with the cotton, and purporting that the whole had been shipped by him for account and risk of the plaintiff and one David Coffin, Jun., both citizens of the United States, and making his affidavit to the truth thereof before the consul of the United States; and also made out at the same place a true invoice and bill of lading of said tea alone, purporting that the same had been shipped by the said French merchants on their own account and risk, and consigned to Messrs. Perkins, of Boston; that the last-mentioned invoice and bill of lading were discovered in the pocket of the master, after he was captured, and all the afore-mentioned * facts were disclosed on the trial of the cause in the Court of Vice-Admiralty at Bermudas ; that the said master, in his claim filed in said Court of Vice-Admiralty, claimed the said 96 chests of tea, and the said cotton, as all belonging to the same persons, viz., the said plaintiff and others, all citizens of the United States, and made an affidavit there in support of said claim ; in which he swore that the said tea and cotton did belong to the persons named in his claim, and that no subject of France had any property or interest therein; and the defendants offered to prove that the afore-mentioned facts were noticed and commented on by the counsel on the trial in said Admiralty Court, and that they did not pass unnoticed, or escape the observation of said Court; but the judge, on the trial of this cause, rejected said last-mentioned evidence, and instructed the jury that the afore-mentioned facts, nor any other conduct of said master, in relation to said tea .and cotton, did not destroy or prejudice the right of the plaintiff to recover as for a total loss on said vessel and cargo.
    5. For that the said judge should have instructed the jury, as the counsel for the defendants humbly apprehend, that the said vessel had deviated from the voyage insured prior to the capture; and that the nature and cause of the loss by the condemnation at Bermudas were such as, by the terms of the policy, the underwriters were not accountable for ; and that the jury might presume, from the evidence in the case, that the condemnation at Bermudas was founded on the improper conduct of the master, for which the underwriters were not responsible, and of course that they might find a verdict on the first and second counts for the defendants.
    This motion was argued, November term, 1810, by Jackson and Banister in support of it, and by Dexter and Prescott in support of the verdict; from which term the action was continued for advisement ; and at the last November term in this county, the opinion of the Court was thus delivered by
   * Sedgwick, J.

There is in this case a motion for a new trial on two grounds: 1. For a misdirection of the judge who tried the cause ; and, 2. Because the verdict is against evidence.

The several questions, which give rise to the objections made by the defendants, are, 1. Was there a deviation, before the capture by the British cruiser, which discharged the underwriters ? 2. Are the underwriters discharged in consequence of the misconduct of the master ? 3. Ought a valuation of the cotton to be made by the price at which it was purchased at the Cape of Good, Hope, or by its price at the Isle of France ? I leave out of all question the partial loss, which was sustained at the Cape of Good Hope.

I shall consider the several questions respectively, in relation to the directions of the judge, and to the finding of. the jury.

There is no question as to the interest of the plaintiff. The insurance was upon the ship and cargo. The voyage insured was from Newburyport to one or more ports beyond the Cape of Good Hope, one or more times ; for the purpose of disposing of her outward cargo, and procuring a return cargo ; at and from them, or either of them, to her port of discharge in the United States ; with liberty to touch and trade, at any ports and places, on her outward and homeward passages

The only place at which the ship stopped, going or returning, was the Cape of Good Hope, on her outward passage ; until, being on her direct course to the United. States, she was captured; and the only port to which she went, beyond the Cape, was the Isle of France.

After the ship, in the prosecution of her voyage, arrived at the Cape of Good Hope, she anchored in Table Bay. There, while the master, without any evidence of unnecessary delay, was preparing to proceed on his voyage, the ship, by a violent gale of wind, was driven from her moorings and stranded. In consequence of the damage * which the ship received from this accident, the cargo was taken out and landed, and the ship taken round to Seaman’s Bay. Here she was some time detained, partly in receiving necessary repairs, and partly by an embargo.

Had the removal of the ship from Table Bay to Seaman’s Bay been unnecessary or improper, it would have been a deviation, and would have discharged the underwriters. But this question was expressly left to the jury, who have found that Seaman’s Bay was a suitable place to make the repairs, and necessary to be resorted to for that purpose.

At the Cape of Good Hope, then, there was no deviation. Was there any, or what is tantamount to it, at the Isle of France 1 That question was fairly referred to the jury, and by them determined in the negative; and it only remains to be inquired whether that determination was so much against the weight of evidence as to make it proper to send the case back to the jury for reconsideration, two verdicts having been already returned the same way.

One of the termini of the voyage was a port or ports beyond the Cape of Good Hope ; to which the ship had leave to go, one or more times, for the purpose of disposing of her outward, and procuring a return cargo ; with liberty to touch and trade at any ports and places on her outward and homeward passages. Within the terms of the contract, therefore, the ship was authorized to “ touch and trade ” at the Cape, and to go to the Isle of France, and from thence to other ports beyond the Cape; or she might immediately return from thence to the United States, and in that passage stop at the Cape. But she was not authorized, by the contract, to sail from the Isle of France to the Cape, and again return to the Isle of France.

A deviation is a voluntary departure, without necessity or reasonable cause, from the regular and usual course of the voyage insured. This discharges the underwriters from the time of the deviation. And any unnecessary delay during the course of the voyage, whether at sea or in * port, is tantamount to a deviation, and followed by the same consequence. And the reason on which these principles are founded is, that it is understood. as a part of the contract of insurance, that the voyage insured is to be prosecuted in the usual and ordinary route, and the business of it attended to, at least, with ordinary diligence. But an intention to deviate, however deliberately formed, is not a deviation.

A voyage from the Isle of France to the Cape of Good Hope, and back to the Isle of France, was not within the policy ; and had it been prosecuted, it would doubtless have discharged the policy. But the intention alone cannot have that effect.

From what has been said, it is evident that the only question, upon the defence set up, on the ground of deviation, is, whether there was an unnecessary delay at the Isle of France. If there was any such, whether it was occasioned by an attention to a preparation for the intended voyage, or any other cause, the under writers are discharged.

The ship arrived at the Isle of France on the 29th of February, 1806, and sailed from thence on the 25th of July in the same year; • making the stay there five months wanting five days. This delay ought to be accounted for. No account is given what was doing, which occasioned a necessary delay during the months of March and April. During that time, however, the master had made up his mind to go to the Cape, leaving behind him the Surat cotton, and that part.of his original cargo which he had with him unsold, and to return again to the Isle of France. For this voyage he was in readiness the beginning of May. A regulation of the port required a delay of forty-eight hours ; and this delay was equally necessary, whether the voyage intended was to the United States or to the Cape of Good Hope. The delay, then, during the first and second days of May, are accounted for. In this state of readiness the ship continued, with a pilot on board, and with * a permit to depart, fastened only by a single halser, until the 7th of May, waiting only for the master to come on board ; when information was received that the Cape of Good Hope was surrendered to the British. From this statement it appears that, from the 3d to the 7th of May inclusive, the ship was in readiness for her departure upon the voyage, which was insured and prosecuted, to the United States ; and her intermediate delay is not at all accounted for.

Now, it is undoubtedly true that the shortness of the time, or the distance of a deviation, makes no difference as to its effect on the contract. Whether for one hour or one month, or for one mile or one hundred miles, the consequence is the same. If it be voluntary and without necessity, it puts an end to the contract.

In this case, there are five full days’ delay wholly unaccounted for. It may, perhaps, be said that it might have consumed the whole of this time to have reladen the cotton, &c., if, instead of a voyage to the Cape, one to the United States had been intended Of this we have no evidence; but what is a better answer is, that the relading of the cargo afterwards was rendered necessary in order to prosecute the voyage which was afterwards undertaken to the United States; and the plaintiff cannot claim in excuse for the delay the time that might have been taken, and that which was actually taken. This would be double the necessary delay ; and no unnecessary delay can be excused.

There is certainly very slight evidence to account for the residue of the stay at the Isle of France from the 7th of May to .the 25th of July, two months and eighteen days. Nothing was purchased or sold. When the master heard of the surrender of the Cape, it seems that he made up his mind to return to the United States; and after this, more than two months and a half elapsed before his departure; and what was done, in all that time, in relatian to the * voyage ? The master endeavored ineffectually to sell his cotton, as he had done for more than two months before. He repacked and put it in order for a homeward cargo. He invoiced and put it on board. And he received on board, on freight, 146 chests of tea. This was all; and,according to my conception, it might easily have been performed in much less time (had that diligence been observed which was the duty of the master) than the two months and eighteen days, which intervened between the time when the voyage to the Cape was abandoned, and the time of the departure from the Isle of France.

I make no account, upon the question of deviation, of the taking • of the tea on board on freight; for the voyage insured was for the purpose of disposing of the outward and procuring a return cargo ; and I think it must be indifferent to the parties whether the return cargo was procured by freight or by purchase. All the question is as to the quantum of delay ; and there is no evidence showing that the former consumed more time than the latter would have done. On the whole, I am inclined to believe that the facts, relative to the length of time the ship continued at the Isle of France, afforded so much weight, that a conclusion might have been justly drawn, that there was a deviation ; but as this conclusion was a mere matter of evidence, which has been submitted to two juries, who have determined the same way, the Court is of opinion that there is not sufficient ground to set the verdict aside.

As to the misconduct of the master, whatever it might be, and however it might authorize a capture and condemnation, I do not think the defendants can avail themselves of it, because it does not appear that the seizure was for that cause ; and it is clear, from the restoration of the ship, that no damage has been sustained on that account; and I think that my brother, who tried the cause, was correct in instructing the jury that, under such circumstances, the misconduct of the master did not operate to discharge the underwriters.

*-As to the valuation of the cotton, I think the rule assumed by the judge was the just one. A policy of insurance is a contract of indemnity. To render it such, as respects goods, the rule is, when they are purchased, to make an aggregate of their prime or invoice price, and all duties and expenses upon them, until they are put on board, including the premium of insurance ; and from analogy, if the goods happen not to be purchased, but are grown or produced, or the property in them otherwise obtained by the assured, then their value, or, what is the same thing, their price, at the place where the insurance commences. Now, this insurance was upon the return cargo ; but the cotton was never a part of the return cargo until it was put on board at the Isle of France ; and therefore the value must be ascertained by the price there.

It was contended, for the defendants, that the underwriters are not answerable for the value of the cotton, because, it having been originally British property, and not having been libelled, though captured and carried into port as prize, it was liable to seizure by British cruisers; and as this also was the cause of the arrest and detention of the ship, the whole misfortune, which attended the voyage from the Isle of France, is imputable to this misconduct of the master, for which the owners, and not the underwriters, are answerable.

This would be a strong point in the case, if, from the evidence, we were authorized to conclude that the cotton had not been condemned at the Cape of Good Hope, and that it had been purchased by the master, knowing that defect of title; and that it had been seized and condemned for that cause. But none of those facts appear to have been proved. It is true that there was a rumor at the Cape, that no sentence of condemnation had been passed upon the cotton ; but it does not appear that the master had ever heard it. He purchased it openly; and, as it was known to have been taken as prize, we think it ought to be presumed, until the contrary be proved, that he supposed *that the ordinary proceedings of civilized nations towards the property of their enemy when taken as prize, had taken place. Nor does it appear that the claim of the master for the cotton was rejected, on the ground that it had not been formally condemned; but because it was doubtful whether it had not formerly belonged to British subjects. As, therefore, the master purchased the article innocently, and as, from the facts, it is reasonably to be presumed it had been duly condemned, at the instance of the original captors, before the purchase by the master, we think this cannot be aground for setting aside the verdict.

After the foregoing opinion had been pronounced, the counse for the defendants suggested to the Court their apprehension that some circumstances, on which they principally relied in the defence, had escaped the consideration of the Court, or had not been sufficiently urged by them in the argument; that they relied on the evidence of misconduct in the master at the Isle of France and at Bermudas, not simply as discharging the defendants from any further responsibility, but as showing that the loss in fact arose from a peril against which they did not insure. The misconduct referred to was the mixing the teas belonging to the French merchants at the Isle of France in the’same invoice and bills of lading with the cotton belonging to citizens of the United States, and his repeated attestations to the truth of the said invoices and bills of lading. This was such a violation of neutrality on the part of the master, as, by the law of nations, subjected all the property contained in such false invoices and bills of lading to condemnation The said cotton was condemned for this cause only; and this should have been considered as proved by the decree itself, until such presumption was rebutted by other evidence ; or else the depositions offered at the trial, and rejected by the judge, should have been admitted, as furnishing presumptive evidence at least. And if it be *said that all the legal evidence on this point was submitted to the jury, the defendants contend that the verdict should be set aside as being against the weight of evidence.

On the question of deviation, it was observed that it could not with correctness be said to have been twice submitted to the jury ; since, at the first trial, there being no dispute as to the facts relating to it, it was considered rather as a question of law, on which the judge instructed the jury in favor of the assured ; and as all the facts are yet undisputed, it is still either simply a question of law, or if any inference of other facts from those proved is necessary, the Court can make such inference more correctly than the jury ; and in either case, the opinion of two juries would not be permitted to overbalance that of the Court. The defendants apprehend that the facts proved at the trial fully established a deviation, and if any question of fact remained for the jury to infer, it was one on which they could not doubt, if they fully understood the direction of the judge as stated in the report; there being no evidence to contradict or control that offered on the part of the defendants.

Upon these grounds, the defendants asked that the entry of the judgment might be postponed, and that they might have a further hearing on these points.

Judgment being accordingly stayed, and the action continued rin, another argument was had at the last March term in Suffolk, after which

The Court

observed that, if it was apparent that the condemnation was for the misconduct of the master, it might have followed that the underwriters would be discharged, But it did not appear that the condemnation was for that cause. The false, invoices and bills of lading are not assigned as the grounds of the decree; and what furnishes a strong "presumption to the contrary is, that the vessel was restored, although, as belonging to the same owners with the cotton, it was by the rule equally liable to condemnation.

Judgment on the verdict. 
      
      
        Marsh. 194.
     
      
      
         [Misconduct of the master will not discharge the underwriter — See Shore vs Bentall, 7 B. & Cr. 798. — Busk vs. Royal Exchange Insurance Company, 2 B. & Ald 73. — Petapsco Insurance Company vs. Coulter, 3 Peters, 222. — Ed.]
     