
    Joseph Hoyt versus Arthur Gilman.
    On the trial of an action on a policy of insurance, the judge directed a nonsuit, on the ground that there had been a fraudulent concealment of material facts at the time of effecting the insurance ; and the Court refused to set aside the nonsuit, and grant a new trial, observing that if the j'ury had found a verdict for the plaintiff, they should have set the verdict aside.
    Case upon a policy of insurance for 10,000 dollars on the ship Ariadne and her freight from Falmouth to her port of discharge in Europe — 7000 dollars on the ship, the residue on the freight; the ship valued at 17,000 dollars, the freight at 9000 dollars; policy dated March 5th, 1810; at a premium of twenty per cent. — The first count was for a total loss by the perils of the seas ; the second for-dollars, money had and received by the defendant for the plaintiff’s use.
    At the trial of the cause, which was had upon the general issue, before Sewall, J., at the sittings here after the last November term, the policy was admitted to have been subscribed by the defendant for 500 dollars ; as was also the total loss of the ship and freight, in the River Jade, on the 19th of January, 1810, by the perils of the seas.
    It was admitted by the plaintiff, that he had received a letter from Thomas Dickason Co., of London, dated December 8th, 1809, a copy of which accompanied the report of the judge, before the policy was effected; and that he did not give any information thereof to the underwriters, or to his son, Joseph Hoyt, Jun., who was his agent to procure the policy in the case; which letter was of the tenor following, viz.: —
    * “ London, 8th December, 1809.
    “ Joseph Hoyt, Esq.
    “ Sir,
    “We yesterday received a letter from Captain Richard Hoyt, of your ship Ariadne, informing us his being off the Lizard with a freight of tobacco, and was ordered to Varel, on the Jade; at the same time desiring us to insure on the ship 13,000 dollars, on freight 9000 dollars, on captain’s adventure 1000 dollars, which we have not been able to effect; as a very respectable house has received advice from that port of a late decree having been issued by the French emperor, confiscating all vessels and cargoes, entering the Jade, Elbe, or Weser. Of course no one would take the risk; and 'we have only to hope that Captain Hoyt will get information of this decree, previous to his entering the river, and run for Tonningen, which at present is open, as far as we know ; although it is said Denmark would issue a similar decree respecting their ports, which will in a great measure cut up the American commerce. The cargo of the AHadne was insured five or six weeks ago. The last premium given to Varel was 25 guineas, to return five per cent, for safe arrival. No freight will bear this premium. We beg. leave to repeat our hopes and wjshes, that your ship may arrive in safety ; and as Captain Hoyt informs us his freight is to be remitted to us, we shall have great pleasure in informing you when it reaches our hands. Or as any thing relative to your ship is known to us, we shall immediately advise you. We send copy of this in quadruplicate, hoping one or other may reach you early ; that in case you can get insured with you, and you wish it, that you may be secured from loss.
    “We are on all occasions yours, &c.
    
      “ Thomas Dickason &f Co.”
    
    The defendant called Mr. Seth Sweetser as a witness, who testified that he was the insurance broker on this occasion; that the said Joseph Hoyt, Jun., applied in behalf * of his father, the plaintiff, to get insurance for 10,000 dollars on the said ship and freight, viz., 7000 dollars on the ship, and the residue on the freight from Falmouth, in England, to any port in Europe; that the said Sweetser inquired if the said Joseph, Jun., knew to what port the ship was bound ; that he said he did not, but added that perhaps the ship might go to the south of Europe, to Spain or Portugal, though he thought that not probable; he thought it more probable that she would go to Tonningen; that she was cleared out for Hamburgh ; that Sweetser inquired if any letter or information had been received from the ship ; that the said Joseph, Jun., said he knew of none. Sweetser was positive that he made this last inquiry, and received the said answer ; that the said Joseph, Jun., did not leave written, but only verbal proposals.
    The plaintiff called the said Joseph Hoyt, Jun., as a witness, who testified that he applied to the said Sweetser, to get insurance for his father, as stated by Sweetser; that the plaintiff had ordered him to get 15,000 dollars insured, if to be had for about 15 per cent., but told him not to get more than 10,000 dollars insured, unless it could be effected at less than 20 per cent.; that Sweetser supposed that a policy might be effected at 20" per cent., and engaged to make application to the underwriters; that the said Joseph, Jun., went home and informed his father of the result of his application to Mr. Sweetser; and that he presented written proposals to Sweetser at the time he applied for the insurance, but was not certain that he left them. He was very positive that he never did inform Sweetser that perhaps the ship might go to the south of Europe, &.C., and he had no recollection of Sweetser’s enquiring if any information or letter had been received from the ship ; but he thought it probable that Sweetser inquired where the ship was bound, and that he answered, that she cleared out for Hamburgh.
    
    Whereupon the judge directed a nonsuit; to which direction ■the plaintiff filed exceptions, and the action stood continued to this term upon the said exceptions.
    * And now, Putnam and White, of counsel for the plaintiff,
    moved that the nonsuit be set aside, and a new trial granted, contending that it was the proper province of the jury to have settled the facts, about which there was contradictory evidence at the trial. To them also it belonged to consider and determine whether the letter, which was voluntarily produced by the plaintiff, was material to the issue ; and if they should find it so, it was still for them to decide ; and this was a question very interesting to the plaintiff, whether the neglect to exhibit it to the broker, was fraudulent on the part of the plaintiff.
    The first point was too well established to need argument. As to the letter itself, it contained information of the political rumors of the day, which, in point of fact, turned out to be false ; but if true, as they were of a public nature, the underwriters were as well bound to know them as the assured.  The presumption was, that the master of the ship would hear the reports, and that he would thus be deterred from entering the River Jade; and so it was not material to show the letter on that account. But whether the concealment was or was not material, the question whether it was fraudulent or not ought still to be referred to the jury, that if they should be satisfied that there was no fraud, the plaintiff may at least recover his premium under the second count in his declaration. The intention of the party is what must in all cases constitute fraud, and that is certainly proper for the jury to decide upon.  It ought to operate strongly in the minds of a jury, in this case, that the plaintiff’s property at risk was 26,000 dollars, yet that he insured but 10,000 dollars. If he was fraudulent, he must have been stupidly insensible to the care of his own interests
    Livermore, for the defendant,
    was stopped by the Court.
    
      
       3 Burr. 1910, Carter vs. Boehm.
      
    
    
      
      
        Doug. 13, in notis. See, also, 1 New. Rep. 152.
    
   Per Curiam.

Whether fraud be a question for the Court or jury, yet if, upon the facts in evidence in this case, the jury had given the plaintiff his premium, we should not have hesitated to set aside the verdict. The letter, which * the plaintiff concealed, contained information very material in estimating the risk. The plaintiff must have been aware of this, if he had capacity to enter into a contract. The underwriter had a right to the information. The withholding it from him must be considered fraudulent, and the insurance was therefore void. And being avoided for such a cause, the plaintiff is not entitled to a return of his premium.

The nonsuit is confirmed.  