
    
      The New-York Firemen Insurance Company, Plaintiffs in Error. against Jacob I. Walden and Thomas Walden, Defendants in Error.
    what facts ,B of the assured necSsa?yiatoafae communicated to the assurers at the time o£ effecting the inaurance, is matexciü°8WeiyUrto determine; and the judge, in his charge to the jury, though he “pinion asió tbs thete™ctZ m their assistance, or by way of advice, in cases of doubt and diiHto give them a positive direction opinion as to the mate£ialny of ,the tilburyrefrom o™rcijuu|ment! tfieme¡v¡& ÍOT
    Whether formation facts, known to the assured, as to the carelesness, extravairecóromy a"B the master, be ™a^tritg'he closed to the ¡a-surer, at the üi'xre-
    THIS cause came up from the supreme court on a writ of error. For the facts in the case, and the judgment of the court below., see S. C. ante p. 128-139.
    case in the supreme court. . 6 Platt, J., assigned the reasons for the "judgment of the court ^ 7 ° v ° DeloW) which were the same as those stated in the report of the
    The cause was argued by S. J ones, jun. and Wells, for the plaintiffs in error; and by Griffin and Henry, for the defendants • XU error,
    
      For the plaintiffs in error,
    
    it was contended, 1. That there was i , . . ,a concealment or certain letters and matters, relative to the con-7 duct and character of the master, which were material to the risk, and ought to have been disclosed to the plaintiffs in error, at the time the policy was underwritten. And to this point, were cited, Marshall on Insurance, Condy's ed. 315. 465. 468, 469. n. 74. 473. n. 75. 1 Wm. Bl. 594. 3 Burr. Rep. 1909. 3 Dallas, 491. 4 Bos. & Pull. 151. 1 Caines' Rep. 57. Doug. 306. 2 P. Wms. 107.
    
    2. That under the circumstances of the case, the policy did not ... . . . . _ -vi protect the ship against the barratry oí Lartwnght, the master; and that there was not sufficient evidence of barratry to entitle v the plaintiff below to recover on that ground. To this point wei‘e cited, 6 Term Rep. 283. 1 Johns. Rep. 229. Marshall on Ins. 534. n.
    , 3., -That the materiality ef the' concealment.was a question of fact, and-ought- to have been left .to the jury; and to this point were cited, 1 Johns. Rep. 522. Marshall, 470. n. 74. 473. b. 476.
    4. That the judge before whom the cause was tried, admitted improper evidence, and misdirected the jury. •:
    
      For the. defendants; in error,
    
    it was insisted, 1. That this Was a clear case of, á loss by the barratry of the master.' i, 6 East, 126. 2 Binney's Rep. 274. 2 Caines, Rep. 72. Cowp. 143. 1 Johns. Rep. 229. 8 Johns. Rep. 272. Parke on Ins. 119.
    2. That the charge, of the judge to the jury,'relative' to the concealment, was, correct; and that the implied warranty" of seaworthiness, includes the nautical skill, and good moral character, of the -master, andsono disclosure Was necessary. Park on Ins. 300, 301. Marshall on Ins. 475. 4 East, 590. 1 Campbell's N. P. Rep. 421. 4 East, 596, 597. Marshall, 154. 473. n. 74.
    3. That the materiality of the alleged concealment, was wholly a matter of'fact, Parke on Ins. 273, 274, 13 East, 47. 4 Bos. & Pull. 151. 3 Dallas, 494, 495. 6 Cranch, 274. 279. 281. 338. 340. 1 Johns. Rep. 523—528.; and that n’O; bill of exceptions. Would lie as to the opinion- of the judge at the trial,on a matter of fact;.. Bull. N. P. 316. 1 Bac. Ab. 529. tit. Bill of Exceptions. 2 Caines Rep. 163. 168. 8 Johns. Rep. 507, 515, That the remedy, if any, was by a motion for a new trial, on the ground that the 'verdict was'against evidence. That the late act,, requiring bills of eX'ceptibns to -be returned into the supreme court, (1 N. R. L. 319. sess. 36. ch. 3. s. 4.,) did not intend to extend them to matters to which they did not before reach; - . .
   The Chancellor,

This '.case comes up upon a bill of exeeptions, and we are accordingly to. be confined- to the objections taken at the trial, and appearing on the face 'of the bill. The-question is,-whether there was error in the charge which the learned judge delivered to the jury. This charge was, ¡ “ that the several matters given in evidence, on the part "of the plaintiffs, were, in his opinion,, conclusive- evidence; of the barratry of the master of the vessel, on the voyage ; and that the plaintiffs were not bound to communicate, or disclose, to the defendants, any of the letters, matters, or circumstances, which were, at the time of the insurance, in their possession, relative to the master; and that the matters given in evidence, on the part of the defendants, were not sufficient to maintain the issue on their part, or tabar the action, of the plaintiffs; and that if the jury agreed with him in opinion, they ought to find ¿.'verdict for the plaintiffs and with that charge, he left the matter to the jury.

The' counsel went at large into the discussion of the question, whether the assured were bound to communicate to the under-, writers, at the time they' applied for insurance, the letters and other knowledge they possessed of the improper conduct of the master. But it appears to me that this question is not for the decision of this court, because, whether the circumstances relative to the master ought to have been disclosed, depends upon the question, whether'those circumstances were material to the risk ; .and the materiality is a question of fact'for a jury, and not á question of law for the court It is a well-settled principle in the law of insurance, that what facts, in the knowledge of the assured, are material, and. necessary to be communicated to the underwriter, when insurance is asked1 for, i$> for a jury to determine ; and I will briefly notice a few cases, i» illustration of this point. My whole opinion will rest upon the admission- and the solidity of this principle. •

In Macdowall v. Fraser, (Doug. 260.) it was assumed by the K. B. As a given point, and it was said expressly by on'.e of the judges, that the materiality of a certain representation to the underw'riters was proper for the consideration of the jury ; and in the case of Shirley v. Wilkinson, which came before the same court, two years afterwards, (Doug. 306. n.,) Lord Mansfield, and the rest of the court, Ver'e of opinion,'that' if the assured, at-.the time when the policyis effected, in representing to the underwriters the state of the ship, and the last intelligence concerning her, does not disclose the whole, and' what lie conceals ahall appear material to the jury, they ought to find for the underwriter, though the concealment should have been innocent. The next case I shall mention, is that of Willes v. Glove, (4 B. & P. 14.,) in which the court-of C. B. admit the same doctrine; and on the question whether the coneealmentof a certain letter was material, the court held the verdict to be against evidence, and awarded a new trial; and they, declared,, that though; great respect, was due to the 'opinión of the jury, still they thought their judgment on that point had been too hastily formed, and that ¿the case ought to be reconsidered. In Lyttledale v. Dixon, (4 B. & P. 151.,) the same-court., afterwards, unanimously, and very explicitly declared their opinion, that every material circumstance must be disclosed ; but that-it w,as for the jury to say, .how-far any givén circumstance was material. •

From these cases it appears,, that the principle which I have stated as the ground of my opinion, is settled iii the English courts, and I will-now show that it is as explicitly acknowledged in dur American law. • ■-■-

- In Livingston v. Delafield, (1 Johns. Rep. 522.,) the supreme court of this-state declared that, . whether certain information which the assured knew, and did not communicate, became, material, was a,question of fact that- the jury wére to decide; and the same doctriné had been, previously advanced by the most distinguished counsel, (Hamilton and Harison,) and evidently acquiesced in by the court, in a case which arose some years before; (1 Caines’ Rep. 229.) So/ in Murgatroyd v. Crawford, (3 Dallas, 491.,) in the. supreme court of Pennsylvania, Ch. J. Shippen declared/ that ..if, in the Opinion, of the-, jury, a knowledge Of the circumstances that- were. .suppressed* would have induced the insurer to demand-a higher premium, orto refuse altogether'to underwrite, it would be sufficient toinvalidóte the policy. . Again, in the,case of Marshall v. Union Insurance Company, decided in the circuit, court Of the United States for the district of Pennsylvania, (1 Condy's Marshall, 473. b. n.,) the court -left it pointedly to- the .-jury-to- judge of the materiality of circumstances net 'disclosed. And, to con-elude with the highest -judicial authority in. this country, the supreme court of the United States has decided, on two different occasions, Livingston v. Maryland Insurance Company, and Maryland Insurance Company v. Rudens, (6 Cranch, 274. 338.,) that the- operation of any concealment on -the policy depends on its materiality to the risk, and that this materiality was :a subject for the consideration of a jury, and must -be left to= them. One of those cases was considerably analogous to -the one now before us.' ' It came' up on. error, founded- on a bill of excep-' tians taken at the circuit, and the court say that the effect'of a misrepresentation, or .concealment, depends on its materiality to the risk ; and this must be decided by a jury, under the direclion of the court; and, in that case, said the Chv 3., it had not been decided, and, consequently, a venire facias de nova was awarded, to the end that a jury might pass upon the questian of a material concealment. x

It is thus settled, (as far as authority goes,) beyond all doubt\ or contradiction, that, whether the-matters not disclosed-in this qase were material, was a question that ought to have been submitted to the consideration and decision of the jury;, arid here, I apprehend, lies the error committed by the learned judge, that he has given a binding.direction to the jury, upon matter of fact,, as if it had been maiter of law. It appears to me, that the true and necessary construction of the charge, as stated in the -bill, is, that it was a positive direction, in point of law, as to the materiality of the non disclosure, and that it must have been so. received and obeyed by the jury. If the charge had been intended as a mere opinion to the jury, on a matter of fact, on which they were to exercise their judgment, the jury would, Undoubtedly, have been told, that the defence in the case rested upon the question of the materiality of the' letters and facts not disclosed, and that it was-for them to judge, from the evidence, whether the disclosure would have varied the premium, or increased the. risk, in respect of the barratry of the master; and that if the jury, should be of opinion that the facts not disclosed- were in that sense material, they must find for the defendants ; and that, if'they thought otherwise," they must find for the plaintiffs.. This would have been the language of a charge suited to the submission of such a point; and we have an example of this species of charge (if, indeed, an example can be wanting) in the bill of exceptions taken in "the case of Smith v. Carrington, (4 Cranch, 64.) If, then, the judge had deemed it proper to addhis own opinion on that fact, for the assistance or satisfaction of the jury, it might have been done with utility, and with safety. But the charge, as stated in the case, is not of this nature, but it is in the usual style and language of a direction of the "court, on maiter of law. The precedent of a bill of exceptions, which was cited from Buller's N. P. 317., and which is given as for misdirection, is in the language of the charge in this case. And the said chief justice did then and there (says' the precedent) declare and deliver his opinion to the jury, that the said several matters go pro " duced and proved, on the part of the defendants, were not, upon the whole ease, sufficient to bar the plaintiff of his action; , and> with that direction, left the same to the jury.” There " is a. precedent of a bill of exceptions given in 3 Burr. 1742., and which Was taken, to a chargfe on the subject of search .warrants, made by Lord Camden, when Ch. J. of -the C.-B.; and the language of this very authentic precedent is almost in.the very words of the one before us : f And -the 'said-chief-justice -did\ then and there declare' and deliver his opinion to the jury, that the said several matters sd produced and proved, on the part of the defendants, were not, Upon the whole case, sufficient to bar.- the action, and, with that, opinion, left the same to the ,Wy-”

hi this case, from Burrow, it was never doubted but that the opinion of the chief justice, so stated in that-bill, -was taken' and-.received: .as a dirpetion -in- point of law -; and if the'charge in the .case before us "is not to be deemed of that character, it will be impossible," hereafter,’ to discriminate between a charge containing a positive direction -in'.point, of law, -and mere advice on a matter of fact. I shall- not enter into any minute criticism on words... No one- who consults the precedents can well be at a loss for the meaning of this charge. The language of the learned judge was, that the plaintiffs were not bound or required to,make the disclosure.; that-the matters offered in evidence were net sufficient to' bar’the action, and nothing was said about the weight of evidence for, the consideration of the jury. If even, it was doubtful, by the bill, whether the- charge.. was-. intended . as direction, or otherwise, the result of my opinion would be the samé; because,, when the judge interposes his opinion to "the jury, on a point of fact,, it ought not to foe left in doubt in whafjight they are to receive his- charge. In order to. preserve a just ,balance between - the distinct powers- of -the. court áhd the jury, arid that- the parties may enjoy,, in, unimpaired vigour, their constitutional right of having. the law decided by the court-, and' of having the fact decided, by the jury, every charge should distinguish clearly between the law and the fact,, so that the jury cannot misunderstand their rights or their duty, nor mistake the opinion of the judge upon matter of fact, for his direction in point of law. The distinction, is all-important to the jury. The direction of the judge, in the one case, is obligatory upon their consciences, and so tjiey will, and so they ought to, regard it; but his opinion, in case, is mere advice, and the jury are bound to decide for them-; selves, notwithstanding the opinion of the judge, and to follow' that opinion no further than it corresponds with the of their own judgment.. Unless this distinction be kept steadily in view, and be defined with all possible precision, the trial by, jury may, in time, be broken down, and rendered nominal and! useless. '

I am far from wishing to restrain the judges of the courts of law from expressing freely their opinions to. the jury on matters of fact, and still less of interfering with their power of controlling the mistaken verdicts of juries, by a liberal exercise of the discretion of awarding new trials. No man can be more deeply sensible of the value and salutary tendency of this judicial aid •and discretion, and none, certainly, can possess higher confidence in tlje character and wisdom of the court whose judgment is now under review. All that I feel it my duty to contend for is, that whenever the judge delivers his opinion to the jury on a matter of fact, it shall be delivered as mere opinion, and not as direction, and that the jury shall be left to understand, clearly, that they are to decide the fact, upon their own view of the. evidence, and that the judge interposes his opinion only to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt. It is for this principle that I feel solicitous, and not for any thing that may have taken place in this particular cause. The case before us is, comparatively, of trilling consequence ; but the distinction 1 have suggested goes to the very root and essence of trial by jury, and may, indeed, become of inestimable value, and, perhaps, of perilous struggle, when the present generation shall have ceased to exist.

I am disposed *to hand to posterity the institution of juries as perfect, in all rSspccts, as we now enjoy it, for I believe it may j; in times hereafter, be found to be no inconsiderable security against the systematic influence and tyranny of party spirit, in inferior tribunals.

Had the bill of exceptions been represented to the court below, in the view I have now considered it, I am satisfied that that court would have unanimously recognised the justness of the principle lot which I contend. Their attention was wholly drawn to the question of the materiality of the proofs.

If, then, the charge of the learned judge is to be considered (ás I think it must be), as a declaration to the jury, that the papers and facts not-disclosed, were, in judgment of law, immaterial, then the jury have never pasáed their own judgment upon thé materiality, of-those proofs; and the'cause ought to be remanded to another jury. This is the necessary course in such a case." Thus, in Davies v. Pierce, (2 Term Rep. 53. 125.,) evidence was rejected,, hnd a bill of exceptions taken, and: the E. jB.,held the evidence admissible, and a venire fie nova was awarded • and the judges,'in'that case,' ,'said,; that, “ as'the jury had not exercised, any judgment upon the whole óf the question, it ought to be submitted;, to them for their, consideration,"and that, when-they,held that the evidence should have been received, they .did not determine that it was conclusive;, but only that it ought to .have been .submitted1 to the" .jury, and that what effect- it would have upon their minds, it would be impossible'to say.”' That case is analogous to the present one■ in principle:; for whether- evidence he rejected, or the jury be charged that in law it is óf no avail/ amounts ..to the same thing,. as to its. effect with the. jury, . :

1 have not deemed it necessary'to examine,, critically,,the evidence in the cáse, in order to determine whether certain facts' -were material'to have been disclosed, because, asl-have.already attempted to "show,- that question was for a: jury,- and is not within ■ the '.province of, this court;'! shall only add, that it does not appear to me to be a very clear point, that the ' evidence withheld from,the underwriters was immaterial, and, therefore, as well on account of the importance o.f that question in this pavticular case, as on general principles of law, it ought to be sub-milted to die consideration of a jury. : 1 ■ ■ , , ■

-; I am, accordingly, óf opinion, that the jtidgmentof the supreme court be reversed, and that' the cause be-remanded, with directions that venire de nova Beawarded. ". • • ,•; 1 ‘

A majority of the court being of this pinion,. it -was-thereupon ORDEREB-an'd adjudge®, that the judgment of.the supreme .."court be reversed, and that a venire de nova be awarded,, for the , trial of the issue- joined' between the ,parties in the, said- court;, .and .that the costs in this court abide the final decision, of the ■cause.

Judgment of reversál.. 
      
      dr -reversihgi 10. viz. Bishop, Bloom, Cockrane, Crosby, Keys, P. W. Radcliff, Stewart, Swift, Tabor, and Van Schoonhoven, Senators i and for affirming, 8, viz. Arnold, Atwater, Hager, Prendergast, Rouse. Tibbits, Van Buren, and Van Bryck, Senators.
     
      
      . (b) See Fisher's executors v. Duncan and another, (1 Hening & Munford, in S. C. of Virginia, 563.) S. P.
     