Putnam J.
delivered the opinion of the Court.
If a verdict were rendered upon a mere matter of fact found clearly against the weight of the evidence, the Court would send the cause to another jury, if the circumstances should, in the exercise of a sound legal discretion, require such a revision. Keble v. Arthurs, 3 Binn. 26 ; Mitchell v. Mitchell, 4 Binn. 180; Tindal v. Brown, 1 T. R. 167; Bac. Abr. Trial, L 1 ; 1 Sellon’s Pr. (1st Amer. edit.) 484 ; Steinmetz v. Currey, 1 Dallas, 234 ; Regina v. Bewdley, 1 P. Wms. 212 ; Tidd’s Pr. (2d Am. edit.) 816. And if a second jury should confirm the verdict, this Court would, as a general rule, be disposed to acquiesce in the second verdict ; as it would be within the prescribed right of the jury to decide upon the mere matter of fact. But after all, the granting of a new trial is a matter of legal discretion. It is, as Lord Mansfield said, “ the attaining the justice of the cause.” The reasons must be collected from the whole evidence, and from the nature of the case under all the circumstances. It will be, as it has been, the desire of the Court to establish and confirm verdicts, when it can be done without a violation of the rules of law.
[550]*550If however the fact to be found by the jury consists ol distinct integral parts, some of law and some of fact, which must exist and be proved before such mixed fact can be said to be legally established, in such case a verdict finding the fact, without the evidence of such legal pre-requisites, would be a verdict against law, and should be set aside toties quoties. Bac. Abr. Trial, L.
If this were otherwise, it would be in the power of the jury, by a general verdict, to take the law into their owu hands ; and the result would be total uncertainty in the ad ministration of justice.
In Bright v. Eynon, 1 Burr. 393, Lord Mansfield observed, that “ most general verdicts include legal consequences as well as propositions of fact: in drawing these consequences the jury may mistake, and infer directly contrary to law.” For example, the issue on a plea of non est factum is a question for the jury, but mixed of law and fact. Whether the facts touching the delivery of the deed proved that it was delivered as an escrow or absolutely, would be for the Court; whether the party signed and sealed, would be for the jury.
Fraud is sometimes a mere fact, and sometimes a mixed question of law and fact. Of mere fact, where the question is of the fraudulent intent of a party : as if the inquiry be, whether the assured procured the insurance after knowledge of the loss of the property. It would be a mixed question, if the inquiry were in regard to matters which do or do not constitute what is called a fraud in law. Foxcroft v. Devonshire:, 2 Burr. 938. So, reasonable notice is a question which must be found by the jury. But they are to judge of the facts only, and it is for the Court to judge whether they do or do not amount to reasonable notice. Lord Mansfield thought it a mixed question of law and fact. Tindal v. Brown, 1 T. R. 167. There the court granted a third trial, after two verdicts for the plaintiff. In that case there was no special verdict ; the court pronounced upon their knowledge of the evidence o'ffered at the trial.
The court is responsible for the correctness of matter of law, and may not permit the jury, in civil actions, to avoid [551]*551it by a general verdict, as they may do in criminal causes. If there is a special verdict, or a demurrer to the evidence, the law upon the facts proved or admitted by the demurrer, must be declared by the court. It is absolutely essential to the proper conducting of the judicial department, that the mere facts should be considered and ultimately settled by the jury, and that the law should be declared by the court.
But where there is no special verdict, or demurrer to the evidence, or case stated upon facts agreed, the court must resort to the evidence given upon the trial; and if such evidence is sufficient in law to warrant the conclusion drawn by the jury, the verdict will be supported ; if it is insufficient, the verdict will be set aside ; just as it would be if it were against a particular direction in matter of law.
And if the court should instruct the jury in regard to facts which are mingled with legal principles, without the establishment of which a party would not in law be entitled to recover, and the jury should assume such facts to be proved, without the evidence required by the law to prove the same, such a proceeding would be misconduct on the part of the jury, and would require the court to set it aside toties quoties.
The plaintiffs claim for a total loss, on the ground that the master, acting with good faith and sound judgment under the circumstances and the necessity of the case, lawfully broke up the voyage at the Washwoods, and sold the cargo for the benefit of all concerned, and that therefore there was constructively a total loss.
It is for the plaintiffs to prove the legal necessity. It is a fact to be submitted to the jury; but it is a question of complex character, compounded of many ingredients or elements, some of which consist of mere fact, and some, of principles or matters of law. The burden of proof is upon the plaintiffs. Dodge v. Union Mar. Ins. Co. 17 Mass. R 478. They must maintain that there was good intention and sound discretion on the part of the master, and that he was compelled by the necessity of the case to act; that the cargo could not have been sent on to the port of destination without a loss exceeding fifty per cent. For if that could have been done, the law is clear, that the master had [552]*552no lawful authority to break up the voyage and sell the cargo, notwithstanding he acted with good faith.
The plaintiffs must prove that the master was authorized thus to terminate the voyage and sell the cargo ; for if he was not authorized to act for the owners and underwriters, it would follow that they were not to be bound by his acts.
There was no suggestion that the master had any express authority. The plaintiffs must maintain that the authority was conferred by the operation of the law.
It would be clear, that if the master assumed to act for the owners and underwriters when they were present, or so near as to be consulted in regard to the disposition of the property, his acts under such assumption of authority would not bind them. He might be justified, if the necessity were so urgent as to require immediate.action; as if the goods would probably perish or be destroyed before the directions of the owners could be obtained. But if the goods were not perishable or damaged, and might be preserved in reasonable safety until the owners and underwriters could be consulted, he should preserve and guard them; and in such case he would have no more authority to break up the voyage and sell the cargo, than the mate or a stranger would have.
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Putnam J.
delivered the opinion of the Court.
If a verdict were rendered upon a mere matter of fact found clearly against the weight of the evidence, the Court would send the cause to another jury, if the circumstances should, in the exercise of a sound legal discretion, require such a revision. Keble v. Arthurs, 3 Binn. 26 ; Mitchell v. Mitchell, 4 Binn. 180; Tindal v. Brown, 1 T. R. 167; Bac. Abr. Trial, L 1 ; 1 Sellon’s Pr. (1st Amer. edit.) 484 ; Steinmetz v. Currey, 1 Dallas, 234 ; Regina v. Bewdley, 1 P. Wms. 212 ; Tidd’s Pr. (2d Am. edit.) 816. And if a second jury should confirm the verdict, this Court would, as a general rule, be disposed to acquiesce in the second verdict ; as it would be within the prescribed right of the jury to decide upon the mere matter of fact. But after all, the granting of a new trial is a matter of legal discretion. It is, as Lord Mansfield said, “ the attaining the justice of the cause.” The reasons must be collected from the whole evidence, and from the nature of the case under all the circumstances. It will be, as it has been, the desire of the Court to establish and confirm verdicts, when it can be done without a violation of the rules of law.
[550]*550If however the fact to be found by the jury consists ol distinct integral parts, some of law and some of fact, which must exist and be proved before such mixed fact can be said to be legally established, in such case a verdict finding the fact, without the evidence of such legal pre-requisites, would be a verdict against law, and should be set aside toties quoties. Bac. Abr. Trial, L.
If this were otherwise, it would be in the power of the jury, by a general verdict, to take the law into their owu hands ; and the result would be total uncertainty in the ad ministration of justice.
In Bright v. Eynon, 1 Burr. 393, Lord Mansfield observed, that “ most general verdicts include legal consequences as well as propositions of fact: in drawing these consequences the jury may mistake, and infer directly contrary to law.” For example, the issue on a plea of non est factum is a question for the jury, but mixed of law and fact. Whether the facts touching the delivery of the deed proved that it was delivered as an escrow or absolutely, would be for the Court; whether the party signed and sealed, would be for the jury.
Fraud is sometimes a mere fact, and sometimes a mixed question of law and fact. Of mere fact, where the question is of the fraudulent intent of a party : as if the inquiry be, whether the assured procured the insurance after knowledge of the loss of the property. It would be a mixed question, if the inquiry were in regard to matters which do or do not constitute what is called a fraud in law. Foxcroft v. Devonshire:, 2 Burr. 938. So, reasonable notice is a question which must be found by the jury. But they are to judge of the facts only, and it is for the Court to judge whether they do or do not amount to reasonable notice. Lord Mansfield thought it a mixed question of law and fact. Tindal v. Brown, 1 T. R. 167. There the court granted a third trial, after two verdicts for the plaintiff. In that case there was no special verdict ; the court pronounced upon their knowledge of the evidence o'ffered at the trial.
The court is responsible for the correctness of matter of law, and may not permit the jury, in civil actions, to avoid [551]*551it by a general verdict, as they may do in criminal causes. If there is a special verdict, or a demurrer to the evidence, the law upon the facts proved or admitted by the demurrer, must be declared by the court. It is absolutely essential to the proper conducting of the judicial department, that the mere facts should be considered and ultimately settled by the jury, and that the law should be declared by the court.
But where there is no special verdict, or demurrer to the evidence, or case stated upon facts agreed, the court must resort to the evidence given upon the trial; and if such evidence is sufficient in law to warrant the conclusion drawn by the jury, the verdict will be supported ; if it is insufficient, the verdict will be set aside ; just as it would be if it were against a particular direction in matter of law.
And if the court should instruct the jury in regard to facts which are mingled with legal principles, without the establishment of which a party would not in law be entitled to recover, and the jury should assume such facts to be proved, without the evidence required by the law to prove the same, such a proceeding would be misconduct on the part of the jury, and would require the court to set it aside toties quoties.
The plaintiffs claim for a total loss, on the ground that the master, acting with good faith and sound judgment under the circumstances and the necessity of the case, lawfully broke up the voyage at the Washwoods, and sold the cargo for the benefit of all concerned, and that therefore there was constructively a total loss.
It is for the plaintiffs to prove the legal necessity. It is a fact to be submitted to the jury; but it is a question of complex character, compounded of many ingredients or elements, some of which consist of mere fact, and some, of principles or matters of law. The burden of proof is upon the plaintiffs. Dodge v. Union Mar. Ins. Co. 17 Mass. R 478. They must maintain that there was good intention and sound discretion on the part of the master, and that he was compelled by the necessity of the case to act; that the cargo could not have been sent on to the port of destination without a loss exceeding fifty per cent. For if that could have been done, the law is clear, that the master had [552]*552no lawful authority to break up the voyage and sell the cargo, notwithstanding he acted with good faith.
The plaintiffs must prove that the master was authorized thus to terminate the voyage and sell the cargo ; for if he was not authorized to act for the owners and underwriters, it would follow that they were not to be bound by his acts.
There was no suggestion that the master had any express authority. The plaintiffs must maintain that the authority was conferred by the operation of the law.
It would be clear, that if the master assumed to act for the owners and underwriters when they were present, or so near as to be consulted in regard to the disposition of the property, his acts under such assumption of authority would not bind them. He might be justified, if the necessity were so urgent as to require immediate.action; as if the goods would probably perish or be destroyed before the directions of the owners could be obtained. But if the goods were not perishable or damaged, and might be preserved in reasonable safety until the owners and underwriters could be consulted, he should preserve and guard them; and in such case he would have no more authority to break up the voyage and sell the cargo, than the mate or a stranger would have. And notwithstanding he conducted himself honestly, yet if the other elements which make up this legal necessity were wanting, the owners and underwriters would not be bound. The question therefore is, whether or not there was a legal necessity for the master to terminate the voyage and sell the cargo. The acting merely in good faith and for the interest of all concerned, will not exempt the sale of goods from the character of a tortious conversion, for which the ship-owner and purchaser are responsible. 3 Kent, 134.
The law upon this subject seems to us to be very clear, yet under the peculiar circumstances of this case it may be proper to refer to some of the authorities.
“ The voyage is not lost as to the ship, if the master has the means to repair her; nor as to the cargo and freight, if he has the means in his power to send on the one, and to earn the other.” 9 Johns. R. 28, Kent C. J. for the court. “ It belongs to the plaintiff to make out a complete case and [553]*553his case is not complete, unless it appear that the voyage was lost by a peril within the policy.” Ibid.
In Wilson v. Millar, 2 Stark. Rep. 1, it was held, that the master has no authority to sell the cargo at a foreign port, although it be impossible to prosecute the original voyage, and although a sale of the goods be the most beneficial to the owner. Lord Ellcnborough said that the master is bound to send back to receive further instructions from the owner, though the consequences may not be so beneficial to the latter. In the case at bar, the master could have given notice to the owners by the regular mail in eight days.
In American Ins. Co. v. Center, 4 Wendell, 52, (Cases in Error) : “ The master is not authorized to sell the ship or cargo, except in a case of absolute necessity, when he is not in a situation to consult with his owner, and when the preservation of the property malees it necessary for him to act as agent of whom it may concern.'n Per the Chancellor.
Freeman v. East India Co., 5 Barn, and Ald. 617. The master has no authority to sell the cargo, except in cases of absolute necessity, and if he does, no property passes to the purchaser, although the master acted bond fide. Trover will lie against him for it. One of the facts there relied, upon by the court was, that the ship was in a British province. The cargo was not perishable, and warehouses might have been had, where the property could have been secured until the owners’ directions as to what was to be done should be received.
Abbott on Ship. (4th Amer. ed.) 241. “ The disposal of the cargo by the master, is a matter that requires the utmost caution on his part. He should always bear in mind, that it is his duty to convey it to the place of destination, by every reasonable and practicable method.”
Ibid. 240. tc If the cargo be of a perishable nature, and there be not time or opportunity to consult the merchant, he ought either to tranship or sell it, according as the one or the other will be most beneficial to the merchant.”
Ibid. 243. “ Transhipment for the place of' destination, if it be practicable, is the first object, because that is in furtherance of the original purpose.”-—“ The merchant should be [554]*554consulted if possible. A sale is the last thing that the master should think of, because it can only be justified by that necessity, which supersedes all human laws. If he sell without necessity, the persons who buy under such circumstances will not acquire a title as against the merchant, but must answer to him for the value of the goods.”
The learned and very distinguished editor remarks in note 1, — “ When a ship is driven out of her course by stress of weather, the charge of the cargo devolves on the master, whose duty it is to take care of it. In such case he has power to sell goods which are perishable or damaged. But he has no right to sell goods which are in good condition and not perishable., imthout the orders of the owners, to whom he is bound to give immediate information.” Such authority is denied to exist, in the country where the owners live. Scull v. Briddle, 2 Wash. C. C. R. 150.
The courts have endeavoured to limit and guard this branch of the mercantile law with the greatest care. The strongest language has been employed We refer generally to the cases cited at this trial, and to tne opinion delivered in this case, in 6 Pick. 131.
This Court declared, in Hall v. Franklin Ins. Co., 9 Pick. 478, that the necessity which will justify the master of a ship in selling her, is one in which he has no opportunity to consult the owners or insurers, and which leaves no alternative. u There must be something more than expediency in the case ; the sale should be indispensably requisite. The reasons for it should be cogent. We'mean a necessity which leaves no alternative ; which prescribes the law for itself, and puts the party in a positive state of compulsion to act. The master acts for the owners or insurers, because they cannot have an opportunity to act for themselves. If the property could be kept safely until they could be consulted, and have an opportunity, in a reasonable time, to exercise their own judgment in regard to the sale, the necessity to act for them would cease.”
We do not inquire whether it was expedient to break up the voyage and sell the cargo, but whether there was a legal necessity to do so. The cargo was landed without any considerable damage. It might be that the owners would bo [555]*555willing to terminate the voyage there, rather than prosecute it to the port of destination. The price, for example, might be more than they would probably get at the port of destination. But the underwriters have no concern with that matter. They are to be held if the plaintiffs sustain the legal necessity, but not otherwise.
We proceed to consider whether the cargo might have been sent from the Washwoods to Castine, the port of destination, at a loss not exceeding fifty per cent.
The evidence as to the precise amount of the cost of transportation by land to Norfolk, and of transportation thence to Castine, is conflicting. And if the master had suffered the cargo to remain at the Washwoods, and the cost of transportation to Norfolk had been somewhat more uncertain, the opinions of witnesses as to the probable cost, would have been entitled to more weight than they can be when contrasted with the positive evidence of the exact amount which the purchasers have actually paid for the transportation to Norfolk.
We have examined carefully the mass of evidence produced at the last trial, and we think that it is beyond any doubt, that the expense of sending the cargo to Castine by way of Norfolk would be less than fifty per cent. We know indeed that some one or more of the witnesses said they would not have carried the cargo to Norfolk for fifty per cent, considering the great danger of plunder on the beach and on the road. But these extravagant assertions are rebutted by the proof of the actual cost. John Cornick, a witness produced by the plaintiffs, testified that he was willing to contract to transport the cargo for one and a half cents per pound, the owners taking the risk of weather and plunder; which would have been less than one sixth part of the value. The jury were probably governed much by the great danger of plunder, without considering that the cargo would have been at the risk of the underwriters on the way to Castine, as much while it was on the road, as when water-borne.
This extra charge for insurance against plunder &c. on the way from the Washwoods to Castine, is contained in the plaintiff’s statement of their loss, which we find among the papers of the case. They estimate this insurance at $4,562‘20, [556]*556and the transportation to Norfolk and thence to Castine, charges at the Washwoods, commissions on sales also, and commissions for securing duties by bond, at $5,733-44. They take the invoice value on the beach, $ 11,851-31, one half of which is $ 5,925-65 J ; which would make the expenses of prosecuting the voyage, (rejecting this extra charge for insurance) $192-21 less than fifty per cent, of the value of the cargo. Upon this view of the case, upon the plaintiffs’ statement there was not a loss of the voyage.
But when the particulars of their estimate are considered, the result is much more against the claim. The transportation is estimated at 3 cents a pound, amounting to $3,650-70. But Banks (whose deposition was produced by the plaintiffs) proves that the cost was 1¿ cents a pound, which would be $1825-35. The estimate contains a charge for commissions on sales, which would not have been paid if there had been no sale, $ 590-05, besides an over-estimate of freight from Norfolk to Castine, of several hundred dollars over the amount which, from the evidence in the case, it would have cost And yet with all this straining, the expenses (striking out the charge for insurance against plunder) would fall short of fifty per cent. It is very clear that there was no legal ground to claim as for a loss of the voyage.
But there is another point to be considered. Was there any necessity upon the master so precipitately to break up the voyage and sell the cargo, without directions from the owners ?
That would depend upon the nature and situation of the property, and the means of communication with the owners. The cargo was not perishable. Spratt, the plaintiffs’ witness, swears that it was all safely landed on the beach, except one or two bags, or perhaps more, which got wet on being put on shore ; that as the cargo was landing, and afterwards, it was guarded by some of the people at the Washwoods, who were hired by the master for that purpose ; that the vessel got on shore on Wednesday morning, December 29th, and the master despatched a messenger to Mr. Cornick, one of the commissioners of wrecks, who arrived there on Wednesday afternoon. Mr. Soutter swears that the cargo was well protected from the weather by a well constructed tent formed [557]*557A the vessel’s sails, and men under arms guarded it from any theft. “ The cargo was put into the care of the commissioners of wreck, who continued the armed guard.” These officers are clothed with all necessary authority for the purpose, and are, according to the laws of Virginia, to give bond for their fidelity. Mr. Sampson, one of the plaintiff’s witnesses, swears that they command respect and attention from all persons.
Mr. Banks, a witness for the plaintiffs, who was employed by the purchasers in the removal of the cargo, swears that he knows of no damage done to the coffee after it was got out of the vessel and put on the beach and secured, but it received some damage after the sails were sold and removed, which had before secured it.
The sale was on the 11th of January; which was three days after the letter of the master, giving the information of the loss, was received at Boston. The letter was dated the 30th of December 1824, was mailed on the 1st of January 1825, and received on the 8th.
If the sale had been postponed five or six days, the owners might have been present at the sale, or given instructions. We do not think that any good reason can be given for the omission to consult them. Mr. John Cornick, one of the commissioners of wrecks, called by the plaintiffs, testified personally at the trial, that he should not have left the cargo on the beach four weeks ; he might think it safe for hoenty days. Other witnesses thought it could have been kept there safely for a much longer time. And if there were any doubt about its safety there, Mr. Cornick says it could have been removed to some house, or upon the hills, out of the reach of the sea After the sale, it was all removed from the beach in two or three days.
Taking the reduced period of twenty days, as the extent of time that it would have been safe on the beach, guarded and covered as it was, even that period would have been amply sufficient to have obtained the directions of the owners. They might have been upon the spot and have acted for themselves. Mr. Cornick states “ that owners have come on not unfrequently and stopped wrecked sales.” The owners [558]*558would without doubt have attended, and they would have either stopped the sale or secured the proceeds. But that would not have so well suited the ultimate views of the master. He arranged matters so as to get the money into his pocket and run off with it. His receipt is dated the 15th of January, 1825, which was four days after the sale. This fact excites in every fair man, indignation towards the master and great sympathy for the owners. It was a case peculiarly hard upon them, for they had no personal appointment of this master. He was appointed by- their agents abroad. But this does not vary the rule of the law. The underwriters are, by the express terms of the policy, discharged from losses arising from the barratry of the master, if the assured were owners of the vessel, and they were the owners of the vessel.
The verdict for the plaintiffs in effect affirms, that there was an absolute necessity to break up the voyage and sell -the cargo. How can we confirm it, when it is clearly proved that the cargo might have been carried on to the port of destination at an expense of less than fifty per cent ? The jury probably mistook expediency for necessity.
• Again, the verdict in effect affirms that the master had authority to sell, because the goods could not be preserved and kept until the owners could have been consulted. How can we confirm a verdict which assumes such a fact directly against the evidence ?. This fact is not to be settled by conjecture, as the question of fraudulent intent may be. The course of the mail and the nature of the cargo, and the evidence given by the plaintiffs themselves, put this matter beyond any question.
It is possible that the master acted like an honest man when he put an end to the voyage and sold the cargo, and that he commenced rogue or felon as soon as he got the money. But it is not possible to believe, from the evidence, that the cargo was perishable, or that it could not have been kept in safety until the directions of the owners could have been obtained, touching the disposition of it. As before said, it lay at the Washwoods at the risk of the underwriters. “ A man is not, quia timet, so to compromise .the interests of other persons, merely on the ground of what passes in his [559]*559own mind.” Somes v. Sugrue, 4 Carr. & Payne, 283, per Tindal C. J.
We cannot confirm the verdict, unless we permit the jury to assume, without sufficient evidence, the facts required to make a legal necessity, or permit them to reverse the established rules of the law upon that subject.
And being all clearly of opinion that the verdict is not warranted by the law and the evidence in the case, "t must be set aside and a new trial granted.
Shaw C. J. did not sit in the cause.