OLIVER

v.

THE MARYLAND INSURANCE COMPANY

And the apprehension of such danger, if founded on reasonable evidence, would produce a like effect. But in éach case the danger must not be a mere general danger, indefinite in its application and locality. If it were so, in time of war, any deiay, however long, in a port, wo. id become excusable, for there would always be dauge* of capture from the enemy’s cruizers. Mor is it sufficient that the danger should be extraordinary, for then any considerable increase of the general risk would authorize a similar delay. The danger, therefore, must be obvious and immediate in reference to the situation of the. ship at the particular time. It must be su.ch as is then directly applied to the interruption of the voyage, and imminent; not such as is merely distant, contingent and indefinite, In the present case it is no* shown that there was any. danger in proceeding from Barcelona to Salou.. No Algerine force is shown to be interposed between those ports. Whatever might be the danger elsewhere, if there was hone in proceeding to and remaining in Salou, it was the duty of the captain to have proceeded to that place;, taken in his cargo, and remained there for further information. Thp captain was bound to have gone as far on his voyage $s he could consistent with the general safety.

The judgmént is affirmed with costs,

Livingston, J.

I concur in the opinion that the judgment of the Circuit Court be affirmed; but in coming to this result ‡ have thought it necessary to examine only the fourth exception which was taken below. It is, according to my view of this cause, very immaterial to enquire whether the Plaintiffs succeeded in establishing the usage, as jt has been incorrectly termed, for a vessel to remain several months at Barcelona for the purpose of obtain ing a return cargo: or whether at one period the master of the Comet entertained a well grounded apprehension of danger of capture by British vessels $ or whether it Was the course and usage of the trade for vessels - bound from Barcelona to any foreign ports to touch at Salou, or at some other port south of Barcelona, on the coast of Catalonia, in order to.take in their return car-. goes;‘i say; whether these íacts were established, or what opinion the Court gave on them in the course of the trial, are in my judgment, as this case comes up, totally irrelevant in the decision of it, because there are .other facts proved, and that by .the Plaintiffs themselves, which are in the opinion of the whole C°url fatal to their claims. The facts are these: “That after all “ fear from British cruizers had ceased, to wit: on the ** 28th of November, 1807, being ready for.,sea, the ves- “ sel cleared for Salou on the 1st day of December following, and when in the act of sailing, information “ was received that the Algerine cruizers were out capturing. American vessels; the 'master was therefore “ a ¡vised to remain in port until they received other “ intelligence, and did not sail for Salou until the 8th of “ January, ,1808^’

On this evidence the Circuit Court instructed the jury, that if they believed these facts to be true the Plaintiffs were not entitled to recover. -In giving this opinion the. Court in effect, said, that the information, which was received at Barcelona respecting the Algerine cruizefrs did not-justify a stay there from the 28th of November to the 8th oft January.

To this opinion two objections are made

The one is, that the Court took upon itself to decide whether the delay last mentioned pi’oceedpdfrom a justifiable cause, instead of leaving it. to the jury to determine both th'e law and the fact, In doing so, I think tlxe Court committed no .error. What will excúse a delay, apparently unreasonable, so as to repel the charge of a deviation on that account, must ever be and ought to be a question pf law, to be decided by a Court under, all the circumstances of the particular páse. In tins way only can any thing like certainty he attained j but if it be left tú a jury not only to,find the facts, which is exclusively within tlieir province, but also.to pronounce what is the law resulting from them, it wU|.' be next to impossible to form a system of rules by which a merchant may safely regulate his conduct.. Nor will it help, the matter to consider it as a mixed, question' of law and fact, because that gives to the jury a right to disregard the opinion of the Court, which they will have no right to do in case it he considered exclusively as a question of law on which the Court alone has a right to decide. In civil cases every man lias an interest in confining a jury as much as possible to their proper sphere, which is to decide on facts 5 ‘while a Court does not encroach on their province, care should be taken not to encourage any improper encroachment on their part by unnecessarily throwing On them any exercise of what are the legitimate, functiops of a Court.’ Among these none appear to me to be better settled, than that it is the exclusive privilege and hounden duty of a Court to decide whether an act, which is to be done within a reasonable time, to entitle a party to maintain his action, has been performed within such time or not. So also, where a party sets up an excuse for an act which will otherwise defeat his right to recover, it appertains exclusively to the Court to decide on the sufficiency or the matter alleged, and if a jury, after deciding on the facts, takcupon themselves the further office of determining the legal effect thereof as to the case under consideration, in opposition tó the declared opinion of the. Court, they forget their duty and act contrary law.

But if this be a question of law, the Plaintiff still supposes that the Circuit Court erred in not thinking that the facts proved constituted a valid excuso for the last forty days’ stay at Barcelona, and in not instructing the jury accordingly.' This1 excuse Was, in my opinion, pi’operly disposed of by'the judge below, but instead of stating at length why I consider the alleged apprehension of capture by 'the Algerines as furnishing no justification for this depiy, it is sufficient to say that I entirely concur, not oiily in the opinion which has already been delivered on this point, but in the whole of the reasoning on which it is founded.

Story, J. concurred with Judge Livingston. . Marshauu, Ch. J. My own opinion was that the jury was to find the fact whether there wrs danger in .passing between Barcelona and Salou; and that they ought to have been instructed that if there was danger justified the delay, otherwise not.