
    CLARY v. THE PROTECTION INSURANCE COMPANY.
    Insurance — fraud—negligence—secreted articles — memorandum articles —watch—new trial.
    If the loss result from the fraud or negligence of the insured, the loss falls on him.
    If the insured practice any fraud in obtaining a policy, the risk does not attach.
    *A policy upon wearing apparel, household furniture, and the stock of a [228 grocery, does not cover sheets, &c., not laid in for the use of the.family,’ or for sale, but smuggled into the country and kept secretly for clandestine sale
    A watch is a memorandum article, and not embraced in the common policy.
    On a motion for a new trial, if the party obtaining will reduce its amount to what is right, he may do so and avoid the order for a new trial.
    Suit upon a policy of insurance, dated the 5th of November, 1831, upon $600, of stock, household furniture and wearing apparel, in :a grocery and dwelling house, on the northwest corner of Walnut and Columbia streets, Cincinnati, against loss by fire, for twelve months.
    There are six special pleas and issues not material to set out. The main defence was directed to establish fraud on the part of the ■plaintiff, in the concealment of goods in the first instance; in causing ¡the fire, and that the fire resulted from gross negligence of the plaintiff; and that certain articles for which the plaintiff claimed payment were not within the policy.
    It appeared in evidence, that when the plaintiff applied to insure, the company sent their surveyor with the plaintiff to look at the property intended to he covered. He was taken through the shop and house. The stock was very small; there was but little furniture, and that was of a cheap kind; the wearing apparel of the family that was shown was of the poorest kind. The plaintiff applied to-insure for $1,200, but 'when told the articles were of trifling value, he said that he expected to increase the stock in a few days, and to-keep it up. A policy was effected for $600 only, and the plaintiff was informed that it would be increased when the stock would warrant it. No Irish linen, or sheets, or shirts, were shown to the surveyor, or spoken of. The store was a grocery, in which it is usual-to keep liquors, wooden ware, slops, and gross articles of most varieties. A fire suddenly broke out about three months after the policy, and everything was burnt up. Compensation was claimed foithe furniture, amounting to about one hundred dollars; for a watch;, for the stock in the shop; and also for three hundred and sixty yards-of Irish linen, nineteen pair fine linen sheets, thirty-eight fine linen, shirts, and a quantity of diaper, which had been smuggled into the-country from Ireland. These articles had never been used, though once washed because they were soiled in the passage. The linens, &c., were said to be stowed away in the garret; they were not used in the'house, nor kept in the store for sale.
    
      N. Wright, for the defendants,
    contended that the term wearing apparel in the policy, only included such articles as had been procured for use in the family. That the watch was neither wearing apparel nor furniture; Phil, on Ins. 64, 69; 2 John. 261. He229] insisted that where a party, preliminary to effecting apolicy, shows the kind of goods he designs to insure, that excludes from the-policy all other kinds not shown. If only $600 worth of goods be shown as the stock on which to effect an insurance, when there is $1,200 worth, it is a fraud on the insurer, and the polieydoes not attach.
    
      Fox, in reply.
   LANE, J.

charged the jury, that if there was any fraud in obtaining the policy, or if the fire resulted from the negligence or fraud of the plaintiff, he had no right to recover. Such articles of linen,, sheets, and shirts as were actually laid in with a view to the use of the family, if exhibited at the preliminary inspection, were within the policy — so were such as had been laid in for sale or traffic in the usual way in the store; but such as were concealed, and intended for secret sale, or for other use, wex-e not embraced within the policy. The watch is of the description of articles usually denoxninated ■memorandum ax-ticles, and is not included in the policy.

N. Wright, for the defendants,

moved for a new trial, because the vex-dict is against evidence, and because the jury assessed •damages for the linexx sheets and shirts.

Fox, contra.

Vex-dict for the plaintiff, $502.68.

LANE, J. We should like this verdict better if it had omitted the price of the linen, &c., and perhaps the jxlaintiff will consent to reduce it by the value of the linen, to avoid a new trial. If he is disposed to make such a px-oposition he may do it now, before we make up an opinion on the motion.

The vei-dict was so reduced, and judgment then rendered upon it.  