
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Price v. Depeau.
    A policy of insurance upon a vessel, represented to be American, and ■furnished with American papers, but owned by Spanish subjects, which fact was not disclosed to the underwriters, is void from fhe begining, on the ground both of misrepresentation, and concealment: and the insured cannot recover, in case of a loss, whether it were caused by the-misrepresentation, or concealment, or not.
    Motion for a new trial on behalf of the defendant. This was an action on a policy of insurance, on the schooner Perseverance, for a voyage from Charleston to New Orleans, effected by the plaintiff, for captain Howe, as the owner of the vessel. The policy was opened in the name of Howe, who was known to be an American citizen ; but he was not, in fact, the owner. The vessel was thq property of Santa Maria & Cuesta, subjects of Spain, at the Hevana. The captain, the supercargo, and Price, the plaintiff, anti his partner, Tunno, were all the agents of that house, and acted for them in taking out American papers, and in effecting insurance on the vessel, in which the name of captain Howe was used only to cover the property. IV- V! »sel was masked ; and the circumstances under which she was masked, were not. disclosed, or known to the underwiiters. If they had been made known, the premium would have been enhanced. The action was tried before Johnson, J., in Charleston, and a verdict was found for the plaintiff, against the judge’s charge.
    The voyage was to bo from Charleston to New Orleans, with liberty to call off the Havana. Premium, ten per cent. One per cent to be deducted, if the vessel should go direct to New.Orleans. She was boarded by a British sloop ; and afterwards perisned at sea. The argument was chiefly confined to the evidence offered at the trial, in proof of the facts above stated.
    In supp n-t of the motion, it was contended, 1. That the policy was void, on the ground of fraud, there having been a concealment of material circumstances. 2. That the representation on the policy, amounted to a warranty, that both the vessel and cargo were American property; whereas, evidence was adduced'at the trial, which proved that they were Spanish property.
    
      E contra. It was conceded that, in general, a concealment of circumstances, materially affecting the risk, will vitiate the policy: but, it was contended, that there art exceptions to this rule. That the insured is not bound to know whether the vessel, or property is masked. That if the insured did not know it in this case, it was immaterial, as there was an express warranty; and that having been complied with, the insured is not answerable. Tiie warranty was to sail with a sea letter, as American. This was complied with. There are many thing.-! which increase the risk, that need not be disclosed. Murgatroyd v. Crawford. 3 Dallas, 491. Park. 182,175, 320. Cowp. 607, 787.
   By the Court.

The insured was bound to disclose the circumstances of the case, that were material in computing the risk. He did not disclose every thing that he ought. He also misrepresented facts, he represented the properly as American. The policy was void from the beginning. It is immaterial whether the concealment, or misrepresentation, was the cause of the loss of the vessel, or not.

New trial granted.

Present, Gbtmke, Trezevant, and Brevard, Justices.  