
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Byrnes v. Alexander.
    Although the jury are the proper judges of facts, and of the credibility of Witnesses, and of the force and effect of evidence, yet if it should appear that the finding of the jury is contrary to the weight of evidence, the eouvt will presume that the jury have been misled, and will grant a new trial.
    If before the policy is effected, the insured has notice of the loss of the property insured, or notice thereof is left at his counting house, or given to his principal clerk, it is his duty to countermand his orders fer insurance] and if it is not done, the underwriters are not liable.
    Motion fora new trial on behalf of the defendant.
    This was an action on a policy of insurance, tried before Bay, J., in Charleston district. The material circumstances of the cas© weve tijas® s The policy was effected by tbs plaintiff for R. Den* nis of Savannah, the real plaintiff, owner of the ship Adventure, whose cargo was the object of the policy. Dennis, a merchant, resident in Savannah, Georgia, wrote a letter, bearing date the 24th of December, 1798, to the plaintiff, Byrnes, his insurance bro-her, living in Charleston, to negotiate' the policy in question. The letter bore the post mark of the 25th December. The mail was not closed until G o’clock in the evening of the 25th December, and the mail stage did not leave Savannah until next morning. The postscript of Dennis’ letter in his own hand writing contained the orders for insurance.
    Intelligence of the loss of the ship and cargo was brought to Savannah by the brig Peggy, about 12 o’clock on the 25th December. A witness examined on the trial testified, that he called at Dennis’ counting house in Savannah, to give information of the loss, immediately after the intelligence arrived, but did not see him or any of his clerks. It was proved that Dennis was at that time absent in the country, but that he had clerks in town, and that the news must have spread, and been generally known in Savannah by one o’clock on the 25 h.
    The letter of Dennis was received by Byrnes on the 29th, and information of the loss was received the same day in Charleston, just after the policy was effected. If Dennis had information of the loss by 12 o’clock on the 25th, he might have written by the mail to countermand his oiders for insurance ; and if he had the information any timo afterwards before the departure of the mail next day before G o’clock, ho might have written by the passengers in the mail stage or the driver to the same effect.
    In support of the motion it was insisted, that from the evidence given, and all the circumstances of the case, there could be no rooni to doubt that Dennis had notice of the loss in time, with reasonable diligence, to have countermanded the orders for insurance.
    That the clerks of Dennis must have known the loss in time to have written information thereof to Byrnes, and that it was their duty to have done so in the absence of Dennis.
    That notice at the counting house of Dermis must be considered as notice to him ; and that his casual or intentional absence from the place where bis mercantile business was transacted ought not to prejudice the insurers, who would otherwise not have been answerable. That notice to a tenant for a term of years to quit, if left at his house with a.; servant is good, 4 T. R. 4G4; and generally where notice is required bylaw, leaving it at the dwelling bouse is sufficient, Such notice is presumptive evidence of notice to' (bo master. In this case the presumption is strengthened by the circumstance of the loss being generally known, and the common topic of conversation in Savannah by 12 o’clock on the 25lh. Park, 210. 1 T. R. 12. It ¡3 not material by what means the insurer is imposed upon by misrepresentation, whether by fraud or neglect. Miller Ins. 350. 65. Park, 209. If under tho same cir. cumstances the ship’s safe arrival had been heard of, the orders for insurance would have been countermanded. There is scarcely any doubt of this. If tho intelligence of the loss had arrived before the orders had boen given for insurance, tiiey ought not to have been given ; but the duty to countermand, is as great as the duty to forbear insurance.
    On the other side it was argued, that the motion was founded on conjectures and not proof; and that the jury had negatived' those conjectures : and that suspicions ought never to weigh as proot to disturb the verdict of a jury. That the'evidence relative to tho notice, and of due diligence to countermand, or to procure intelligence respecting the vessel before insurance, was all left to the jury, and theirverdictastothe.se points ought to be conclusive. The question of due diligence in regard to bills and notes in England, is considered as a question of law, but in no other caso p and even in that case-it is not so considered hero.
    It is not by any means a proper questi'oh for the court-in this case unless some certain rule could be established, not liable to vary according to circumstances, as notice in course of post, by the next post &c. 1 T. B. 12. In this case the orders could not have been countermanded by the course of post, the only regular modo of communication. 1 Marsh. 350.
   By the Court,

(in the absence of Bay, J.,)

Although the question, which was left to the jury in this case, was proper for their consideration; and although they are the proper judges of facts, and of the credibility óf witnesses ; and also of the force and effect of evidence ; yet if it should appear, as it does manifestly appear in this case, that the finding of the jury is contrary to the weight of evidence, and decidedly so, the court will presume, either that the jury have been misled by some misconception of the law to draw a wrong conclusion from facts, or that they have been influ. enced by motives of partiality or prejudice ; and will interpose in behalf of the party to be affected by the verdict, and grant a new trial. In the present case it can hardly be doubted that Dennis did know of the loss in time to have written to forbid his orders to insure before the policy was effected. But, however that might bes it is beyond all sort of doubt that notice yvas given or left at his house in time if he had been at home, to have afforded him an opportunity to have done so'; and this was sufficient. If he had been in the way it would have been sufficient; but his being out of way, and the notice having been given at the Usual arid proper place where his business was done, makes the case equal. That he had not seasonable notice was owing to his own wilful fault or neglect, of which he cannot be allowed to avail himself. It is therefore ordered, that the verdict be set aside and a new trial granted.

For the defendant, Db Sahssurb and Forb. For the plaintiff, Chuyes.  