
    Henry Livingston against John Delafield.
    NEW-YORK.
    May, 1805.
    If the information of the loss of a vessel be known in a place early in the morning of the day on which a policy is effected at noon, it is not proof of fraud in the underwriter though, it be brought by some of the crew of the ship insured, if it do not appear that they had been on shore. If it be doubtful whether a communication as to the time of a vessel's sailing has been made, a new trial will be ordered to ascertain that fact, especially if from the amount of premium it may be inferred that it was not duly stated, but should circumstances render it difficult to establish on the second trial, the facts well proved on the first, the order for the second, will be, on condition of admitting those facts.
    
      ON a valued policy upon the body of the ship Eliza, Henry Livingston master, from Jamaica 10 New-York, opened the 16th of November 1801, and subscribed by the defendant op the 18th, at a quarter before 12 o’clock, for the ordinary premium of six fer cent. On the trial, the policy, abandonment, and interest were proved. The latter by a British register, granted at New-Providence, in the name of the plaintiff. The other facts, ip evidence, so far as they are important to the present decision, were these.
    The insurance in question was effected by the order pf Isaac Riley, who had shipped on board the Eliza, for the outward voyage, a number or horses, driven for hirn from Connecticut, by one of the ship's crew, named Brainard, who, after sailing in her from Jamaica on the 25th of September, and seeing the vessel founder at sea, in consequence of starting a butt in a gale of wind, arrived, with another of the seamen belonging to her, at New-York, during the night of the 17th of November. It did not, however, appear that they had been on shore, and the vessel in which they came, was, early in the morning, .ordered down t.o the quarantine ground, as she had passed it the evening before. Nor was it clearly in evidence, that at the period when the policy was opened. any communication was made as to the time whep the Eliza sailed, though the broker, through whose intervention it was done, testified, that uponhis first instructions on the 16th to procure insurance for only 2,000 dollars, he immediately advised covering the vessel to a larger amount, which Riley, declined, saying he would wait. That on the ! 8th, Riley called about ten o’clock in the morning and desired 2,000 dollars more to be effected, and on the increase of premium a few days might occasion, re-1 jo presented, as the vessel was out of time, was induced to give direct j¡0HS for 3 ooo dollars to be procured. That Riley staid three 1 . quarters of an hour in the office, and then went away, upon which fhe witness took the policy to the Coffee-House, opened it again, _ and instantly after the defendant had sub cribed, the news of the joss 0£ ¡.¡le ⅞⅛ was brought in. That he communicated this about one o’clock to Riley, whose countenance did not betray any conciousness of fraud. That he adtised Riley to make the defendant an offer of examining the persons who arrived, Onread-;na. a Wntten memorandum, handed to the witness to refresh his memory, it turned out to have been made in his office, by Riley, on the 18th, specifiying the sailing of the ship to have been about the 3d of October, according to which the witness swore, he be-lived his representation on that point, to have been made to the first underwriter, by a written order for insurance, shewn on the 16th and delivered to the defendant when payment was demanded. The memorandum read, contained a detail of Riley’s transactions on the 18th of November ; from which he appeared to have been occupied till the moment of receiving the account of the loss from the broker, in quarters of the town, where the news had not arrived. Rut it was in evidence, that Riley had been for some time, in •the habit of calling every day, about 10 o’clock A. M. at the office of one Lang, a printer of a daily paper, in great repute, for the marine information it affords, to inquire for .ship news ; that intelligence of the loss of the Eliza had been received there, very early on the morning of the 18th, that Riley, on that day, did not call till near two o’clock in the afternoon, and then requested Lang to take notice, he had not called that morning. There were some slight circumstances tending to shew that Riley was the person actually interested in the vessel.
    On this evidence, the judge charged the jury, that payment was resisted on two grounds, 1st, Because the assured knew of the loss previous to the insurance. 2d, Because the time of the vessel’s sailing was not disclosed to the defendant, by which she would have' appeared a missing vessel. As to the first; it was a principle of law, that fraud should not be presumed, though It * , , , _ might, as other matters, be established by circumstances. It was not proved positively, that Riley knew of the loss before the tosur-anee was made. From the arrival, in this pert, of the two mea belonging to the crew of the Miza, the night before it was effected, it did not necessarily follow, that Riley knew of the loss, there being no evidence of their having come on shore. • Upon the whole, he was of opinion, that the proof on this point was not satisfactory. As to the second point, he said he had considerable doubta. Me rather thought the broker mistaken, as to his having communicated the time of sailing to the first underwriter on the 16th. There was pretty strong proof of this in Riley’s memorandum, from which it appeared, that he himself did not know when the vessel sailed, until the 18th of November. Upon this charge, the jury brought in a verdict for a total loss, to set aside which the defendant now applied on the following grounds. 1st, When the parties live in the same place, if the assured might have known of the loss in the usual course of business, such knowledge must be presumed until the contrary be shewn by evidence on his part. In the present case, it might have been so known, besides, particular facts from which it might be presumed. 2d, The vessel being admitted to be greatly out of time, proof of the time of her sailing, and that other vessels had arrived, and brought the assured intelligence of her having sailed before them, ought to have been communicated to the defendant. 3d, That it was the duty of the broker to have communicated it, (if he knew it) is not sufficient evidence to found a presumption that he did so.
    
      Pendleton for the defendant.
    Facts may afford grounds to presume fraud. The retaining possession of goods by a vendee after an absolute sale is one, out of many other instances. The arrival on the 17th, of a man in New-York, who belonged to the vessel, and had driven the horses she had carried for Riley, together with his peculiar conduct on the 18th, at the printing-office of Lang, are sufficient to induce an inference that he knew of the loss of the Eliza before, the defendant underwrote. Positive proof of knowledge is not required, where there is a general repoit of a fact. In such cases the rule is, that- slight evidence, or, as Rooms, Not. 78, expresses himself, semi-plena, probationes, shall be enough. These he defines in the same place to be conjecture, presumptiones, ct indicia. In 2 Emer. 124. 5. 130, 133. the principle is recognised, and many authorities cited to the same effect. Do not then the circumstances here amount to tfiesfi flrobaliones? In Stewart v. Dunlop, Park, 209, there was no actúal evidence of the assured's having known of the loss of the vessel insured, yet it was presumed merely because a person had arrived, who had brought the intelligence, and comma* hicated it in tile city. ' In Da Costa v. Scantieret. Park; 179. the Suppression of a doubtful account of a vessel like that of the assured’s, being taken, Was ruled to be á fraud. Upon the second point there can be no ddiibt. The time of sailing, coiild not have beeh communicated, for it appears that though the Vessel was greatly Out of time, she was, notwithstanding,' underwritten at Only the ordinary premium. This is a sure criterion to determine the nature of the representation made. Pdwson v. WatsoA⅞ Cowfl. 78$.
    
      Johnson and Hoffman, cortti'a;
    The principles relied on are applicable only to those frauds which arise from presumptions jurih iit de jure, and are the effect of positive institution, against which ho proof can be allowed, 2 Etner. 139. It is for this reason, that when the facts are ascertained, the judge, according tó the code in which those rules subsist, pronounces whether the circuni" stances amount to fraud or not. The very origin of these regulations are sufficient to induce their rejection by us. They are Selected from the ordinances of various codes, and wére founded átícórding to Pothier, No. 21, on the rareness of good faith among ffiert, aild the difficulty which the insurer sustained in proving a positive fraud; Milldr, page 75, states that they are of bo authority in the English law. And even In the very system where the positions laid dbwn for the defendant are allowed,, they do not extend to any other cases than those of frauds by-ordinance. Tor both Emerigon ail’d Roccus assert that the general rule is, to deemail transactions bond.fide, till-the contrary be proved. 2 Emer. 1-32. Ro.c-.M>t-. 51.7S. But the conduct of-the defendant in permitting the seamen who arrived on the 17th to depart, without examination, ought to preclude .him from casting an air of suspicion on the transaction. -He.had it in his power to have procured their testimony, and has neglected to do it. The question bf fraud has been, fairly submitted to that tribunal which by our jurisprudence is authorized to decide on it, to the jury,, and they have pronounced in favour of the plaintiff. 'The day of the sailing Of the Eliza is, by the broker’s testimony, said to have been communicated as stated in Riley's memorandum. If this was &ne on the 16th, and thé premium then, was only six per cent, • the lapse of two days could not have much enhanced the amount. There is, therefore, no reason for granting a new trial, especially as from the register not being ndw in our power, We may be non-suited for want of proving interest.
    
      Harison and Pendleton, in reply,
    enforced the original positions of Pendleton.
   Per curiam,' delivered by

Livingston, J.

The motion to set aside the verdict in this case, is made on the grounds of fraud and concealment. The fraud alleged, is, that Riley, who caused the insurance to be effected, knew at the time that the vessel Was lost.

Fraud, like other matters, may be established by circumstances» But the jury were not necessarily bound to conclude that Riley knew of the loss, because two of the Eliza’s crew had arrived in this harbour, in the night preceding the day on which the insurance was made, especially without proof of their coming on shore ; nor because intelligence of it had been received at one of the printing-offices in this city, as early as eight in the morning of that da^. This might be, and yet Riley know nothing of it. These and other circumstances have been submitted to the jury, and we cannot say, their verdict on this point is contrary to fevidence, or that we are at all dissatisfied with it.

The charge of an undue concealment appears to be better Supported. The vessel sailed on the 25th of September 1801, and when Riley ordered insurance to be made, he admits that he knew of her sailing as early as the 3d of October ih that year. This fact, which was a very material one in computing the risk, there is too much reason to believe, was not communicated to the defendant previous to his subscribing the policy on the'18th bf November, 45 days after the ship had left Jamaica. The same risk was underwritten only two days before, and the same policy Was used, when it was not suspected or known that the Eliza was out of time, at the same premium, at which Dclafield wrote bn the 18th, when it was known by the assured, or his agent ■Riley, that she was a missing vessel. It cannot be believed that any underwriter, however hardy, would not ask more than an ordinary premium for insuring a vessel which had been out 45 days, between Jamaica and this port. Seton, the insurance broker, certainly does not prove that he made this communication io the underwriters. The order which he speaks of was deliv-ercd to those wlio underwrote on the 16th, and therefore, could not have contained the information which Riley did not acquire until two days after. It is remarkable that in the memorandum made by Riley, of his transactions on the 18th, he does not say, that he informed Seta?; when the Eliza sailed. The contrary may fairly be inferred, from .the advice Set on gave him, to have ' insurance-made immediately “ as the risk would increase in a “ few days very considerably.” This observation would hardly have escaped the broker, unless he had then expected to get insurance at the ordinary premium, which he could not have supposed, if he had been informed how long the vessel had been out. A face of so much importance ought to have been more satisfactorily proved. There is no pretence for saying, the order for insurance is in the defendant’s hands, unless, as is stated, it be the one which was given on the 16th. If that be the case, which is highly probable, it would furnish conclusive testimony against the plaintiff on this point. It would establish that Seion> in obtaining an insurance on the 18th, repeated, or gave the same information to the underwriter, as was given on the 16th, and was silent as to the time of sailing, which a man so intelligent and correct would not have been, if that fact had then come to his knowledge. Knowing also the importance of his employer’s feeing able to prove so essential a communication, he would have been careful to preserve evidence of it. • But if a written communication was given on the 18th different from that of the 1 th, and it is in the defendant’s possession, the plaintiff should have put himself in a condition to prove the contents, by giving-notice to produce it.

Upon the whole, we think this fact ought to undergo a further investigation, and therefore order, that a new trial be had, upon payment of costs.by the defendant, and further that he admit on the next trial the plaintiff’s interest, and preliminary proofs.  