
    James J. M’Lanahan, Wilhelmus Bogart, and John Joseph Coiron, Plaintiffs in error, vs. The Universal Insurance Company, Defendants in error.
    insurance. It is, doubtless, within the province of a Court,'in-the exercise of its discretion, to sum up the facts in .the casé to the jury 5 and submit them, with the inferences of law deducible therefrom, to the free judgment of the jury. But, care must be taken, in all such-cases, to separate the law from the facts, and to leave the latter in unequivocal terms to the jury, as theirdrue and peculiar province. .{183}
    An application for a new trial, on motion after vefdict, at dresses itself to the sound discretion of the Court; and if, upon the whole case, the verdict is substantially right, no new trial, will be granted, although there may have been some mistakes committed on the trial. The application is not* a matter of absolute right, but rests in the judgment of the Court, and is to be granted only in furtherance of justice. Ón a writ of error, bringing the proceedings on the trial, by bill of exceptions, to the cognizance of the Appellate Court, 'the directions of- the Court below, must then stand or fall, upon their own intrinsic propriety, as. matters of law. {183}
    Every ship must, at the commencement of the voyage insured, possess all the qualities of seaworthiness, and. be navigated by a competent master . and crew. {183}
    Seaworthiness in port, or lying in the offing, may be one thing; and seawor-tliiness.for a whole voyage, quite another. {184}
    A policy on a ship, “ at and from a port,” will attach; although the.ship be, at tbe time, undergoing extensive repairs, in port — só as, in a general sense, for the purposes of the whole Voyage, tobe utterly uuseaworthy. {184}
    fVh'at is a competent crew for the voyage — At what time such crew should be on board — What is proper, pilot ground — What is the course and usage of trade, in relation to the master and crew being oh board, when the ship breaks ground,-for the voyage — are questions of fact dependent upoh nautical testimony, and exclusively within the province of the jury.- {.184}
    The contract of insurance, is one Of mutual good faith; and the principles which govern it} are those of an enlightened moral policy. The underwriter must be presumed to act upon the belief, that the party procuring insurance, is .not, at the time, in possession- of any fact material to the risk, which he does not disclose; and that no known loss had occurred, which, by reasonable diligence, might have been communicated to him. {185} ' "
    If a party, knowing that his agent is about to procure insurance for him, withholds information, for the purposes of misleading the underwriter; it is a fraud, .and vitiates the'insurance. {185}'
    Where a'party orders, insurance, and afterwards receives intelligence material to tiie risk, or has knowledge of a loss, he ought to communicate it to the agent, by due and reasonable diligence, to be judged under, all the circumstances of each particular case, if it can be communicated; for the purpose of,countermanding the order, or laying the circumstances before-the underwriter. {185}
    What constitutes' due and reasonable diligence, is a question of fact for the jhry. {186} ,
    
      The accidental concealment of the time of the sailing of a vessel, would not 'prejudice the insurance, unless material to the risk; if fraudulently intended, it might not mislead; and, whether fraudulent or not, is matter of fact for the jury. {188}
    The material ingredients of a question of the importance of concealing the time óf a vessel’s sailing, are mixed up of nautical skill, information, and
    ■ experience; and- are, in no sente, judicially cognizable, as matters of law. It seems, that this question does not cease to be a question of fact, when the vessel is to sail from a port abroad. {188}
    Little stress ought to be laid upon general expressions falling from Judges, in the - course of trials. Where the facts are not disputed, the Judge often suggests, in a strong and'pointed manner, his opinion as. to their materiality and importance, and his leading opinion of the conclusion to which the facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or the inferences dedüci-ble therefrom, from the cognizance of the jury, but gather- as an expression -of - opinion addressed to the discretion of counsel, whether it would ■ be worth while to proceed further in the cause.' And'the like expression in summing up any cause to the jury, must'be understood by them- merely as a strong exposition of the facts, .not ^designed to ¿'ventile their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice; bepause, if the summing up has had an undue influence, the mistake is ptit right by a new trial, upon an application to the discretion of the whole Court. This is ,So familiarly known, that it needs only to be stated, to be at once admitted. {190}
    The question of materiality of the time of the sailing of the ship to the . risk, is a question for the jury, under the direction of the Court,, as ift other cases. The Court may aid the judgment of the jury, by an exposition of the nature, bearing, and pressure pf the facts; but it has no right . to supersede the exercise of that judgment,' and to direct an absolute verdict as upon contested matter of fact, resolving itself into a mere point of lay. {191}
    • THE action, in the Circuit Court for the district of Maryland, was instituted by the plaintiffs in error, on a policy of insurance, in the usual form; and' á verdict was rendered for the defendants, under the opinion of the Court, upon the first of nine exceptions, taken by the plaintiffs.
    The material facts in the case were. — Insurance was effected in Baltimore, in the name of 'Thomas Tenant; to the amount of 10,000 dollars, on the brig Creole, for a voyage Rom Havre de Grace to New-Orleans, with liberty tti touch .and trade at Havana. The policy was dated upon the 22ci day of December 1823.- The insurance was made, for the plaintiffs, the sole owners of the vessel, under the following circumstances: — •'
    • John Joseph Coiron, one-of the plaintiffs,'while at Havre de Grace, on the 19th of October 1823, addressed to Mr. John Stoney, of Charleston,’ the. following letter
    
      ■Havrej October.\9th 1823.
    Mr. John Stoney, Charleston— '
    Deah Sir : — Please to have in red, for my account* for the account and risk of whom it may concern, ten thousand dollars on the brig Creole, of New-Orleans, Captain Jacob Goodrich, for New-Orleans, tóuching at the Havana.' The brig and boats in the best order, having a round house on deck, containing fourteen births; the crew are seventeen in all. We intend sailing to-morrow. I ha-ve with me my family, .consisting of two children and two nephews. The wind having shipped round suddenly, I1 write this in haste; my first will be more satisfactory to you, for particulars. The new Georgia upland cotton, twenty sous'; rice, thirty francs.
    Your devoted servant and friend,
    John Joseph Coiron. .
    And also another letter, as follows :—
    Duplicate.
    
      Havre, October 2,0th 1823.
    Mr. John Stoney, Charleston—
    Dear Sir: — I have yesterday requested you to have insured, on my account, for the account of whom it may concern, ten thousand dollars, on the brig Creole, of New-Orleans, Captain Jacob Goodrich, from this port back to New-Orleans, touching at the. Havana, the vessel and boats in the best order, having a roof on deck, containing fourteen births, manned by seventeen hands. You know the vessel — I have only to add, that I have made a thousand dollars’ worth more of repairs and improvements oh her. She is now a very convenient packet. I will feel gratified to hear from you, at the Havana. I intend but making a very short stay there, having two children and two nephews with me, and being anxious to meet Mrs. C., I cannot give you any favourable information respecting, business, in this part of Europe.
    With the pleasing expectation of being soon near you, I remain, respectfully, dear Sir,- your devoted servant and friend,
    John Joseph Coirón.
    This letter was enclosed in another, addressed by Quartier and Drogy, of Havre, to Mr. Stoney; dated 23d of October 1823, and stamped with the post mark, of Savannah, December 10th; which, with the endorsements thereon, were as follows:—
    P. Hesperus.
    
      Havre, October 23d‘ 1823,
    John Stoney, Esq., Charleston—
    Sir: — We are indebted to our mutual friend, Mr. J. J. Coiron, from whom we beg leave, to hand you the enclosed letter, for an introduction to your respectable firm, and should feel particularly happy, if it .became the means of an active correspondence between us; the produce of your country, and particularly cotton, being always of an easy and frequently advantageous sale in this part of France, on account of the vicinity of the metropolis, and the principal manufácturing towns, which gives Havre a decided-preference over the other commercial ports of France. Qeorgia short staple, sells at 27 c. 29, and the stock on hand not considerable, few arrivals being expected, until the new crop, which can hardly reach our market before the month of December. It would, however, not be prudent to speculate on the present prices, as they will be likely to give way, on arrival of the new1 crop, and occasion considerable losses. Our opinion is, that purchases ought to be made at from 11 to 13d, and not to exceed 14d, to offer a benefit here.
    Should you feel disposed to enter into a connexion of business with us, and honour us with an answer, we could, if you are so inclined, commence with an adventure of a hundred bales of. cotton, for mutual account, and successively enlarge the speculation, if the result prove satisfactory.- As to the reimbursement for our share, we authorize you to draw- on' us, at Paris, at.sixty or ninety days- sight, if the exchange be advantageous; else we may either make you remittance, or open you'a credit at Ñew-York.- In case it should suit you to speculate for your own account, we beg to offer you the facility of an anticipation of half the. amount of the consignments you may please to intrust to óur care, on receipt of the bills of lading and order for' insurance. - We are also ready to offer the same facilities on shipments which, you may sway to us, for account of other houses, and to grant you a share in the commission on the ..ame.
    Would oblige us to render us the following service, viz:— to procure acceptance of the enclosed bill of 420 dollars, sixty days sight, on Barbet & Esnard, of your city-; and, when accepted, .to hand, the same to Mr. Sam Simon, at Augusta, &c.
    Believe us, with due regard, Sir, your most obedient servants,
    A. Quartieb. & DrogYí.
    
      John Stoney,. Esq., Charleston, S. C.
    
    No. 9, 1823. — ;Quartier & Drogy, Havre, Oct. 23. — Received 13th December.
    
      Hesperus.
    
    The letter of the 19th October, was despatched, in á single form, from Havre,, oh the 20th,- by a vessel, sailing, on that day, for'Philadelphia;'and was received-by Mr.-Stoney, on the 15th December — a duplicate .of the letter of the. 20th, was despatch-ed on the 23d of October, by the Hesperus, via Savannah.
    
      On the. 12th of December, 1823, Mr. Stoney applied to the Fire and Marine Insurance Company,, and to the Union Insurance Company in Charleston, for insurance on .the Creole, and both offices refused the risk, upon the'tground that, they ought to have received account of the arrival of the brig before that time. The offers were withdrawn; and upon the 13th of December, he wrote to Thomas Tenant Esqr. at Baltimore, the following letter. The letter was post marked at Charleston, on the day of its date; and was received, in Baltimore, by Mr. Tenant, on Saturday, the 20th December,'in due course of mail.
    
      Charleston13th December, 1823. -
    Thomas Tenant Esqr. Baltimore:
    Dear Sir — I received, the day before yesterday, a letter from John Joseph Coiron, via Savannah, (extract annexed,) in which. he requests me to have insurance-effected on the Creole, on his account, and others, valued at ten thousand dollars, $10,000. The two offices here are afraid of their own shadow, and will not underwrite her. I must, therefore, request the favour of your having the insurance done,- agreeable to his order annexed, and I will be answerable to you for the premium, &c. Good upland cotton 14 cents, and declining. I have only to confirm my respects of the 3d inst. which I hope you have received before-this. If the insurance cannot be. dime with you, please write to New-York, to haye the same effected.
    . Expecting the pleasure of hearing from you soon, I am, very respectfully,
    Your most obedient servant,
    - John'Stoney.
    Duplicate. (Enclosed.)
    
      Havre, 20£/t of October, 1823.
    Mr. John Stoney, Charleston:
    ■Dear Sir — I have ye terday requested you to have insured, on my account, for th • account of whom it may concern, ten thousand dollars on the brig Creole, of New-Orleans, Captain Jacob Goodrich, from this port, back to New-Orleans, touching at the Havana. The vessel and boats in the best order, having a roof on deck, round house, containing 14 births, manned by hands; you know the vessel. I have only to add, that I have made one thousand dollars’ wor'h more of repairs and improvements on her. ' She is, now, a very convenient packet.
    Extract Thomas Tenant, Esqr., of Baltimore, Maryland.
    No. 1. John Stoney, Charleston, 13th Dec. 1823, and 20th Dec. [mail,] order for insurance.
    
      On the 22d of December, 1823, Mr. Tenant applied to the defendants, the Universal Insurance Company,' for insurance, by the-following written order for the same; and, upon the contract thus made, the policy was on the same' day filled up and executed.. “ I want insurance, for account whom it .may concern, on the brig Creole, Jácob. Goodrich master, at and from Havre de, Grace to New-Orieans, with liberty to touch and trade at Havana, against all risks; — and in casé of loss, the same to be.paid to me. The vessel valued, independent of freight, to-this sum — rlO,000'dollars.
    The Creole was completely rebuilt and coppered at Charleston, S. C. in last summer, at great.expense, arid is now considered a remarkably fine vessel. She wasj and I presume still is, owned by M’Lanahan and ■ Bogart, arid' J. J. Coiron. . The .latter gentleman was on board her,, and I presume is returning-' in her to New-Orieans: • He writes frota Havre,, under date of 20th October, but does'not say.when the brig .would sail. She sails under a certificate of ownership. What will be. the premium on the. above risk ?
    Thomas Tenant,
    By Richard G. Cqx.
    Baltimore, 22d Deer. 1823,.
    ' 8 per cent.
    Accepted.- T.- Tenant:
    On the day the insurance was so made, Mr. - -Tenant- had made-application, in the same terms,, to the Maryland, Chesapeake, and Baitimore.Insufance Companies,-all of which declined the risk.. ■ The Phoenix' Insurance Company, upon application, declined, on the ground that the time ‘of sailing was not ascertained; and the Patapsco Company were willing to take 5000 dollars,, at 5 per cent, .premium, j he insurance effected by Mr. Tenant, was the only, one made upon the-Creole.
    No information relative .to the loss of the Creole was received in Charleston, nor was her loss known thére, until the 15th of December; on- which day the brig Panther arrived at Charleston, and about 2„ o’clock, Mr. Storiey-was informed thereof.
    On the 19tn of October, 1823,- by entries in the log book of the Creole, at Havre, it was shown that ‘•‘the brig was gritting ready for sea.on the.20th; at 9 A. M., the pilot came on board, and warped out into-the basin, made sail, hove to in the offing, for" the captain, .owner, and passengers and crew.” At 10 A. M.-they came off, and the pilot left the vessel. Tuesday,-the 21st October, 1823, the following entry .was made in the log book: — ,
    
      
      
    
    The protest of . Captain-Goodrich, master 'of. the Creole, stated-that the Creole sailed from -the port of Havre de Grace, on the 21st of October. 1823, bound for Havana in Cuba;, that .on the 29th of December,.the brig was wrecked,- and lost.on' Sugar-Key; while on- the voyage-; and himself,-the passengers and crew, were picked-up, and some of them carried to New-Orleans, by the ship-Trumbull, which ship arrived on the l7th of December 4823.- The second mate of the titeóle, and, five passengers, among Whomwere Mr...Coiron,and his family, left.the ship Trumbull off .the.'Havana, in the small boat of the Creole,, .and were laiided there upon the same,day. It also appeared, from the,evidence on the part of the defendants, that the schooner Chase, Cs.ptain RiqKard S. Pinckney, master, sailed from Havana for. Charleston from the, 1st' to the third of December 1823,- and arrived at Charleston on'the 12th of the-same month. Captain Pinckney stated thát.hédid not hear; in Havana, any report of-the loss- ofk the Creole.; The schooner Eliza and Polly sailed from-Havana.-for. Charleston, .three hours before the' Chase, and -Captain. Pinckney leftH avaha. to go on board the Chase, three hours after ,the sailing of the Eliza and Polly..
    The following letter from'-Lemuel Taylor-to-Mr. Tenant, was:also-admitted as evidence;
    
      Home, June 28i/t 1824.
    Mi dear Sir Your favour of the 5th instant ..was received yesterday; and, in reply, I have only, to. say,-'that! left Havana oh the 3d of December last, in .the schooner. Chase, captain. Pinckney, for Charleston; and, that,.some days previous to my departure from If a vana, I see a person land on .the wharf, a crowd seemed to gef round him, and I see several taking him by the hand; I asked who he was,; his name wás.men-tioned,- but, I do not now recollect it, and that he was passenger in the brig Creole, from Havre, for Havana, and lost on some of the Keys; and that he was,an-old trader to Havana, from France, and had a large adventure on board. His name, and lime ,of landing, Can.be ascertained at Havana, if wanted. I never heard the case mentioned on the passage, or in Charleston; and I am supe I never, ’thought or heard of it after leaving Havana,, till one day, while in Baltimore, Mr. Parker, speaking of lo.sses, mentioned the Creole; and I observed I heard of her loss, while in'. Havana; he then observed they should have to refuse to pay the loss, and that it would he one of the most painful disputes he ever had as President, • on account of thé threat respectability of yourself and Mr. Stoney, and mentioned something about dates, From that time, until-I received your letter yesterday, I never heard or thought ,of the case. And I again repeat, that I am sure I did not hear the-.loss mentioned on the passage., or in Charleston, and that I see the passenger land as mentioned; and that his name and -date can be fhrnishéd from Havana, if wanted.
    I am; dear Sir, very sincerely, your friend, and servant,
    Lemuel Taylor,
    It was also proved, that the northern mail closed in Charleston at ten o’clock in-the morning, and generally arrived jn Baltimore in seven days, exclusive of the day the letter was mailed, but-never at an earlier day ;_though sometimes" in eight or. nine days; — -that it generally arrived from 'half past one to two o’clock, and the letters of Mr. Tenant were never delivered by the penny post to him, until-after three o’clock, on the day of the arrival of the mail. The hours of business of the insurance companies in Baltimore, terminated, daily, at two o’clock.
    The fullest testimony was given of the high character of ML Stoney and Col. Tenant,’ to'negative the possibility of a presumption of intentional fraud, or concealment, on the part of either of those gentlemen, relative to the loss of the Creole.
    The plaintiff, on the trial, tendered nine exceptions to- the opinions'of the Circuit Court, all of which are stated , on the record; but, as in the opinion of this Court,.no notice is taken of aiiy-other than the first exception; .and the Court justified the refusal of the Judges of the Circuit Court to sign the bill of exceptions to any. other.-than the first,it is deemed necessary to insert the first exception only. That exception is -as follows: —“ The defendants, by their counsel, praved the Court to inStruct-the jury, that,, upon the whole evidence in the case, the plaintiffs are not entitled to recover, and the verdict of the jury ought to be for the defendants-; which-instruction - and opinion the Court accordingly gave;, and thereupon the plaintiffs, by their counsel,' prayed leave to except, and that the Court woiild'sign and seal this; their bill of exceptions, which is accordingly done; this 10th day of January' 1826.
    ‘.‘G. Duvall, (Seal.)
    “ Elias Glenn,” (Seal.)
    The cause was brought by writ of error to this Court; and was' argued .by Mr. Tawny, and Mr. Jonathan Meredith, for the plaintiffs in error; an by the Attorney General of the United States, and Mr. Ogi ~n, for the defendants.
    For the plaintiffs.- — Two .general grounds of defence were taken nt the trial.below.— ■
    1. A onceálment of material circumstances in effecting the insurance; ■
    2. Want of proper diligence, in not. countermanding the order for insurance, .after the loss'had occurred.
    
      Jis to concealment.
    
    Four instances of-concealment were charged.—
    1. ’The time of the sailing of the brig from-Hayre.
    2. Ain offer for insurance was made at Charleston, and its rejection.
    '3. The arrival of. the two vessels from Havana at Charleston. .
    4. The description of the brig in Coiron’s letter of 20th October, “ s.he is now a very convenient packet”
    
      Jls to negligence.
    
    The want of due diligence, in not countermanding the insurance, was charged.'—
    1'. By Coirón, in not communicating the loss to Stoney, \vhile off Havana.
    2. By Stoney, in not revoking the order to- Tenant; on hearing of the loss on the 15th of December.
    The general principle as to the doctrine of concealment is, that thé assured is bound to make a full disclosure.
    The exceptions are — 1. As to facts which the insurer ought to know. 2. What he takes on himself the knowledge of. 3. Which he waives being informed of. 4. Which are not material, as' not varying the contract.’ Carter vs. Bochme, 2 Burr, Rep.
    
    . 1., As to the charge Of concealment of the time of sailing; Coi-ron could only state his expectation on this subject.
    Coiron was not bound to state á mere expectation of the time of sailing; because,, if he .had, it'would hot hav<e bound him as á representation. Phill..on Ins. 83, and cases cited..
    There is no general rule on the,-subject. It depends, like every other species of concealment, oh its materiality .to. the risk, and it was not material here. Foley vs. Moline, 5 Taunt. 430. 1 Camp. 116. Fort us. Lee, 3 Tamit. 381. 1 Marshall, 483, 484. Mackay vs. Rhinelander, 1 John- Cas. 408. 1 Sergeant fy'Lowber, 144.
    .The usage in Baltimore, is to calculate the sailing on the dhy of the last advices in port; which the order in this case stated to bé 20th of October. The duty of disclosure. is confined to facts, not to the conclusion of-other men from the same facts. Phill. 100. ’ Bell vs. Bell, 2 Camp. 479.- 1 Parke, (7th edit.) 292. Cited, 2 Dane's Mr. 121.
    The- usage in jbaltimore corresponds with the legal principle; and that usage maybe appliéd' to this-case.- But if' the laws were otherwise; still the question would be, was the alleged concealment material, or was it not, in -this case ?
    2. Concealment, as tó arrival of vessels from Havana.
    . The answers are — -l. There is no proof that Mr. Stoney knew of their arrival. 2. Immaterial, because when they left Havana, the Creole could not be considered missing. Littledale vs. Dixon, 1 New. Rep. 151.
    3. Concealment, as to the Creole’s being a packet:—
    1st. It is not necessary to describe ,the particular construction of the vessel offered for insurance. Haywood 'Vs. Rogers, 4 Past, 590.
    2d. General ground — not countermanding the insurance.
    The rule of law is, that if, after an order for insurance, a loss happens,-it is the duty of the .assured to countermand the order, whe^e there is probable ground, to believe, that, by {he exercise of iceasonable diligence,-it will arrive intime. See Fitz-herbert vs. Mather, 1 Term.Rep. 12. Watson us. Delafield, 2. Caines' New,York T. Rep. 224.
    Coiron might fairly have presumed, that one of .the three letters^ ordering insurance, might have -reached Mr. Stoney, ■ , long before the loss, párticularly-the one via Savannah.
    The questions in this cause .are all unmixed, questions of fact, and they .were improperly decided by the Court below.
    .. The language of the-instruction is peremptory; not by way-of advice as. to the facts, and was considered as binding on the jury. The question of materiality as to concealment, is always a question exclusively for the jury. 1 Park, (7th- edit.) 289. 301. 314. 317. Hull us. Cooper, 14 Deist, 479. 1 Maul Selw. 16. Littlesdale vs. Dixon, Í New Rep. 151. Mackay us. Rhinelander,.! John Oases, 408. -Williams - us. Delafiéld, 2 
      Caines, $29. ..Fireman' Insurance Company p$.' Walden, 12 John. 513, and. the-cases cited in the opinions of Ch. Kent.
    
    A question, -of due diligence .is also a question of fact, 1 Stark. £.412, 8tc.; and. see notes in Moors. ««.Morgan, Comp. 479. Wake ,vs. Atty, 4 Taunt. 493. Bateman vs. Joseph, 2 Camp. 461.. Reese vs. Rigby, A.Barri. Sp Md. 202. Watson vs, Delafield, 2 Caines, 224.
    In reply to the argument' of the counsel- of the defendants, it was said.?'the question of seaworthiness1, is one of fact, and should have been submitted to the jury. As to the casual absence of the Captain, Phill. 118.
    The brief’ delay occasioned by the want, of a paper, .was not material; and was not a deviation to avoid the policy. Phill. on Ins. 191» and cases cited. The Court have the right to decide upon tile law of the case, but the facts are exclusively for the jury. Nor is it admitted that the Court may advise upon matters of fact, in this c.ase. -The Court assumed,to determine'the facts» and took them entirs ly from the jury.
    The.prattice.under the laws of'Maryland', is in conformity to the principles, claimed by the plaintiffs, and the Court are prohibited by law from, advising upon the facts. This course of proceeding has not been found, inconvenient, nor has it been disapproved of by the. people; and it- may therefore be -considered judicious,.
    Mr. Wirt, and. Mr. Ogden, for the defendants.
    The facts of- the case justified the opinion of the Court, which is the suhject of'the first exception ■. the whole of the case rests ujion that exception.
    Was .the vessel seaworthy, at the time -of her departure from Havre? The .log book-shows, that.she got under weigh before the master and crew were on board.. At the time of the sailing- of the vessel insured, she must be properly maimed for the voyage — she must be -seaworthy when the • voyage commences. Phill. on Ins. 117. Cases cited, 5 Bur. 1419.. 7 Term R. 705. 1 T. Pep. 343, .186.
    2d, There was such a deviation as .to discharge'the underwriters.
    Delay for documents a deviation. • 1 Phill. 181. 1 'Marsh. 499.
    Upon the first exception, two question present themselves. — 1-
    1. Did- this Court err. in giving the instruction ?
    2.. Did the Court invade'the privileges of the jury ?
    The time of the sailing of the Creole, was not communicated by Coiron, nor did he write, as he ought, and could have (jone, on his arrival at Havana, after-the loss of the brig; and his omission to do this,- avoided the policy. Phill. 96.. 2 Caines, 224, 1 Johns. Pep. 150. 2 JoJj,ns. Rep.5&0. -9 Johns.Pip. 32, Mr. Stpnéy should have inquired, at Charleston, of those who arrived from Havana, for information about the Creole; '
    The Courts of the United States, are not bound by the recent law of Maryland, in reference to the power of Courts to advise or instruct, the jury upon facts; 'the Jaw continues unaffected by the statute. What is concealment, is now become a question of law. Marshall, 467. In allca’ses, when , a vessel insured is to sail from abroad, the time of sailing'is-material.
    Upon authorities, this was á case in which the - Court had' a right to say the insured could not recover. P/iill, on Ins. 468. 1 New Pep. 4. Marsh. 470. M’Andrew vs. Bell, 70. 1 Esp. 371, 407. Phill. 104.
    .It is objected, thát the Court took upon'themselves to decide the materiality of the-fact; and-that this, by the law of .insurance, is exclusively for the jury.
    This is to say, the Court can give no opinion or instruction on the materiality of the facts. .
    This authority is frequently exercised. 6 Crunch 274,. 339. 13 Johns. Rep. 334. 8 Mass. Rep. 336. Questions of fact, on which the law was to be settled, have been takenfróm the jury. ' What is nóticé of non-payment of a bill of exchange, is. no longer a question of fact. So questions of .abandonment. 6 Crunch, 338. Breaking-up of a voyage, has become a question of law, “or it may be considered in the chrysalis state, part, grub and part butterfly. ” 6 Cranch, 71.
    The point, now to be settled by this Court, is a question of political jurisprudence; and the Court is called upon, first, to decide and establish a rule for the. proceedings of the Courts of the United States; and to say hbw far these Courts can interfere in. questions of fact.
    Is the inquiry one which cannot be -touched, because the barrier is 'established, “ that the law .is for the. Court, and the fact is for the jury?”
    In. England, the same principles prevail, and yet the Courts have broken down this, barrier.
    . It is expedient that. Courts should thus interfere-i-while it is entirely conceded that the preservation of the trial by jury; in criminal .cases, is. essential; in civil cases, what would be the trial by'jury without the interference of Courts; and “if the' law Was left to the ‘ shifting £ands of jury, jurisprudence ?” It .Would be “a world without a sun;” — like .chaos before the command “ Let there be light!”
   Mr. Justice St.ory

delivered, the opinion of the Court.— '

This is'a writ of error'to'the Circuit Court of the district of Maryland. The.original action-was brought by the plaintiffs in error against the defendants, upon a policy of-insurance.underWritten by the defendants, whereby “ they caused Thom as Tenant, for whom it may concern, to'he insured, lost or not lost,at and from Havre de Grace to New-Orleans, with liberty to touch and trade at Havana;” ten thousand dollars upon brig Creole and "appurtenances. The declaration averred the interest, in the plaintiffs, and a total loss by the perils of the seas. The defendants pleaded the general issue; and upon the trial, after the whole evidence .on both sides had been given' in, the Court, upon the prayer of the defendants’ counsel, instructed the jury, “.‘that upon tlie whole evidence in the case, ” as stated; the plaintiffs are riot, entitled to-recover, and the verdict of the jury, "ought to be for the defendants.” Nine different instructions were then prayed for on behalf of the plaintiffs, which werfe all refused-.by -the Court, upon the ground that the opinion already given, disposed of the whole cause upon its merits.- If that •opinion was correct, this refusal was entirely justifiable; for the Court was under no obligation to discuss or decide other points, When the plaintiffs’ case , was already shown to possess a fatal defect.

The general question, then,- before this Court, is upon the propriety Of the instruction so given to the jury.,

A suggestion-has-been- thrown -out at-the bar, - that this-instruction was "mot intended to be positive and absolute, but merely advisory to the jury; that it was not meant to take away the right of the jury to decide freely on the facts; but merely to offer for their consideration-those views, which the Court-had arri/ed at, and which it might at all. times properly suggest to the jury. It is, doubtless, nothin the province of a Court, in the exercise o.f its discretion, to sum up the facts in the case to the jury, and submit them, With the inferences of law. deducible therefrom, to the free judgment of the jury. But care should be taken in-all such cases, to separate the law from the facts, and to leave the latter, in unequivocal terms, to the jury, as their true" ancl -pecumuo province. We do not, however, understand that the present instruction, was in fact, or was intended to be, merely in the nature of advice to the jury. It is couched in the most absolute terms, a'nd imposed an obligation upon the jury to find a verdict for the .defendants. It assumed there were no. disputable facts- or inferences, proper for the consideration of the jury upon .the. merits; and that, upon the unquestioned facts, the plaintiffs had no legal -right of recovery. It is in this view, that it is open for the consideration of this Court; arid in this view, it will now be'discussed, as it was discussed in the argument at the bar.

Four grounds have been presented to justify the opinionof the Circuit Court; which, it is said, are apparent from the record itself, and .each of them is decisive upon the case.. The first is, the unseaworthiness of the ship, at the time when she broke ground at Havre, and commenced the homeward voyage; by reason of the master and a sufficient crew, not being then oti board. The second is, the laying off and on, near the port of Havre, after departure on the voyage, for several hours, waiting for the master to come on board; which, it is said, was an improper detention, and amounted to a deviation. The third is, the omission of Coiron to communicate to his agent, ,or ot,her persons in America, the knowledge of the loss, by the way of Havana; so as to countermand the order of .insurance, which it contended was a fatal omission of duty. The fourth is, the omission to mention the time of the vessel’s sailing from Havre, in the letter of the 20th October,. ordering the insurance; which, whether fraudulent or not, was a material • concealment, and misled the underwriters in the- same manner, as if. there had been a representation that the time of the sailing was uncertain.

If is to be considered that these points do not come before this Court upon a motion for a new trial after verdict, addressing itself-to the sound discretion of the Court.- In such cases, the whole evidence is examined with minute care, and' the inferences which a jury might.properly draw from it, are adopted by the Court itseif. If, therefore,, upon the.whole case, justice has been done between the parties, and the verdict -is substantially right, no new trial will be granted, although there may-have been some mistakes committed at the trial. Xhe reason-is, that the application is not matter of absolute right in the party, but. rests in the judgment of the Court, and is tb bfe ‘granted onl/ when it -is -in furtherance -of substantial justice. The case-is .far different upon a writ of error, bringing the proceedings- at the trial, by a bill of exceptions, to the cognizance of the Appellate Court. The- directions of the - Court must then stand or-fall, upon their own intrinsic propriety, as matters of law.

The first and second points appear, to us, in the present case,to resolye themselves intd.matters of fact; and the facts are too imperfect and • too general, to enable the Court to draw any legal conclusion 'from them,, either as tó seaworthinéss or deviation. There is. ho doubt, thát every ship must,' at the commencement of the voyage insured, possess all the qualities of seaworthiness, and be navigated by a competent master and crew. But how is this Court tp arrive at the conclusion,, that-the brig Creole was not in that predieamént at the commencement of the present' voyage ■? The argument assumes, that the ship ought hot to have got under *wbigh, or proceeded into the offihg, until the master, and all the -crew, necessary, not for that act, but for the entire voyage, -were on board. If the law were'so, we have no.means of ascertaining what crew was ac-tuajly on board at the time; nor whether the voyage was ausolutely intended to be commenced on that day; nor whether the departure'was merely contingent and dependent upon the-master’s procuring- the proper ship’s papers, and the breaking ground, and standing off and on in the offing, were preparatory Steps,,only for this purpose; nor-whether for such purposes the pilot and'crew on.board, were not amply sufficient. Rut we are far . from being satisfied that the law has interposed any such positive rule, ás the argument supposes. Seaworthiness in’port,‘' or for temporary -purposes, such as mere change of ' position in harbour, or proceeding out of port, or lying in the offing, may be one thing.; and seaworthiness for. a, whole voyage, quite another. A policy on a ship, at and from a port, will attach, although the ship be at the time undergoing extensive repairs in port, so as in a general sense, for the purposes of the whole. voyage, to be Utterly • unseaworthy. What is a competent crew for the voyage; at what .time such crew should be on board ;' what is proper pilot ground; what is the course -and usage of trade in relation to the master and- cfew being on board, when the ship breaks ground for the' voyage; ar.e questions of fact, dependent-upon nautical-testimony; and are incapable of being-solved by a Court,, without assuming to itself the-province, of á'jury, ¿hd judicially-relying on. its own skill in; -maritime. affairs. In' this, view of the point, it-' is -not necessary to' rely on the doctrine 'of Rord Chief .Justice Abbott, -in Weir vs. Aberdeen, (2 Barn. & Ald. 320,) which goes the length , of asserting,; that if. there be. unseaworth'iness. at the commencement of .the voyágé, and the defect is.-cured.before loss, .-'a-subsequent loss is recoverable under the policy. This is an important -doctrine,- and- well worthy of discussion, whenever it conies directly in .judgment; :

•The likev answer may be .given to the. point of deviation.. This Court cannot intend; that, here t^iere w,as' any unnecessary delay in the commencement or course of.the voyaged The delay, for the ¡want of papers, may haye .beén.'entirely justifiable; and-indeed may have corduced 'to'an earlier inception pf -the- voyage, by putting the sb p in a-, situation to depart at a. inoment’s.-warning. The-usage of trade may bp -generally, pr at least in that particular part, to get the ship under.weigh ás-in .this-.case, and wait in the offing, until the master is ready to come onboard — and that usage may be notonly cbnvenient', and beneficial' to all parties, but absolutely necessary, in given cases,-from the nature of the port, and the-winds^and seasons. How then can this-Court undertake to decideras matter of law, apparent upon the record, that any delay, admitting, of such explanations, amounts to a deviation l

.The next point is the omission of Coiron to. communicate information of the loss to his agent, so as. to countermand the order for insurance... The contract'of insurance has been said to be a contract uberrimee fidd, and the principles which govern it, áre those of an enlightened moral policy. The undjgrwritér must be presumed to act upon the bel’ef, that the party procuring insurance, is not, at the time, in possession of any facts, material to the risk which he does not disclose; and that no known lofes: had occurred, which by reasonable diligence might have been communicated to him. If a,party,having . secret information, of a loss, procures insurance,, withi out disclosing it, it is a manifest fraud, which avoids the policy. If,- knowing that his agent is about to procure insurance, he withholds -the same information for the purpose of misleading the underwriter, it is no less á fraud; for under such circumstances,, the maxim applies, qúi fadt per alium, fctdt per sé. Kis own knowledge,- in such a case,' infects the act' of his agent; in the same manner | and to thé same extent, which the knowledge of the agent- himself wpuld do. And even if there "be no, intentional fraud, still the underwriter has á right to a disclosure of all, material facts, whiph it-was in the power of the party to communicate by ordinary means;'.and the omission is. fatal to the insurance. The true principle- deducible from the authorities .on this subject is, that whére a party orders insurance, and afterwards receives intelligence material to the risk, or has knowledge .of-a loss; he ought to com? municate it to the agent, as soon as, with due and reasonable, diligence, it can be communicated; for the purpose, of countermanding .the-order, or laying the circumstances before the'underwriter. If he omits so to'-do, , and by.dife and reasonable diligence the (information might have been dbmmunicated, so as to- have-countermanded the-insurance, the policy* is void. This doctrine4s supported by the English as well, as the American authorities, and párticularíy by Watson vs. Delafield, (2 1 John. R. 152. 2 Caines’ R. 224. 2 John. R. 526;) where most of the early-oases-awe collected, and commented-upon; and. it is'well summed up by M-r. Phillips,, iji his treatise oni -insurance, (p. 96.) Wé do .not go over the cases at lárge, because-there is¡ no controversy as to the general .result. The only matter for observation is, whether the- rule as to’ diligence; may not,, in certain.-cases, be somewhat more strict, so-as -to require, what in Andrew vs. Marine Insurance Company, (9 John. R. 32,) is called .“extreme diligence;” or what in Watson vs. Delafield is left open for discussion, as extreme diligence; the duty. of communication, where the countermand may not only probably bui.possibly arrive in season. We think, howéver,thattheprincipleoftherule requires only dueand reasonably diligence, to be judged of under all the circumstances of each.particular case; and that the expressions thrown out in the, cases'above mentioned, were, not so mtich intended' to point out a' stricter rule, as, to intimate, that there might be cases, in which a very prompt effort for communication might. be- fairly deemed not due and reasonable diligence, as where the loss takes place very near the port, at which the insurance is to be made, and the'means .of communication,by mail or otherwise, are regular or numerous;'or where, from the lapse of time, and the date of the order for insurance,, the party cannot but feel, that-every moment’s delay adds many chances in favour, of the insurance being made before knowledge of the loss. ■ Under such circumstances, in proportion as the delay would properly give rise to stronger suspicion-of intén'tional concealment, the, duty of prompt communication would, naturally seem to press upon the party a more vigilant diligence. The case of Wake vs. Atty, (4 Taunton’s R. 494,) lays down no new rule; but merely applies the old one, to circumstances, somewhat nice and peculiar in'their presentation.

What constitutes due and reasonable diligence in cases of this nature, is principally matter of fact for the consideration of a jury. When, indeed, all' the'facts are given, and the inferences deducible therefrom,'the'question, ihay resolve itself into a mere question of law. But it is, in general, impossible to lay down a fixed, rulé on the subject, from the almost infinite variety of circumstances which.may affect its application; much must depend upon the means of communication, the situation of the parties, the knowledge of conveyances, the fair exercise of discretion; as to time, mode, and pi ape of conveyance, the course of trade, and nature of the voyagé, and the probable chances of the countermand being effectual. All these are matters of fit inquiry before the jury, and must; from their very, nature, apply with very different force to "different cases.

To bring these remarks home tp the present case,'mere are certainly circumstances, which! deserve the most careful consideration of a jury upon the point of due' diligence. The loss occurred at no given distance from the port of Havana; and if lettersr had been sent, ashore at that port, there'is strong reason to believe, that they could have reached Mr. Stoney in time for a countermand, and at ail events, if the loss had been made generally public at the Havana,' the news might have reached Baltimore before the insurance. .But the record does nót contain facts enough to establish a want of reasonable diligence on the part of Mi*. Coiron. It is no where stated that he was in a situation tc make such a communication, or that he knew of the mate and crew being landed, or .that vessels were about to depart for the United States from Havana-. Nor is it. shown, whát were the medís and facilities of communica-tkm, in the course of trade and voyages, between that port and the United States, regular dr irregular, from which we might deduce his knowledge of these means and facilities. Nor ik it shown, that the parties contemplated a stoppage off the Havana, so as to put him upon diligence in writing; nor that this mode of conveyance of news was more certain, or quicker than others, which might have been resorted to, in the ordinary course of the voyage of the ship.’Trumbull, to' New-Orleans. We may indeed conjecture how these matters were, by general surmise or personal information; but judicially we can know nothing’beyond what the record-presents of the facts; yet, all these circumstances must or may be material to the point of due diligence. In their very essence, they are matters of fact, and hot conclusions of law.

The opinion, therefore,, to which the learned counsel wish to conduct us, that the-policy is void, because there has been gross negligence in not countermanding the order for insurance; is one, to which, upon this record, we cannot judicially arrive. It would be assuming the rights and exercising the functions of the jury upon matters not proved, or wholly indeterminate in their own nature. This ground for maintaining the instruction of the Circuit Court, must then be abandoned.

The next point, is the omission in the letter of the 20th October, of any mention of the time of the. vessel’s sailing. This is put to the Court lii a double aspect;-first, as the concealment of a material fact, and secondly, connecting the language of the letter with the accompanying circumstances, as a virtual reprer sentation that the vessel was not then ready or about to sail on the voyage.

Whether this omission in the letter was merely accidental, or with design to mislead' the underwriters; and whether, if so designed, it had the effect, (which, upon the testimony in the case, would-be a matter of serious doubt,) it is not now necessary to inquire. If accidental, it would not prejudice the insurance, unless material to the risk;.if fraudulently intended, it might not in fact mislead; and whether fraudulent or not, was matter of fact for the jury. That there was no virtual representation as to the time of sailing, ■ seems to us conclusively established, by the language, of the letter of Colonel Tenant, requesting insurance., He there says “He (Coiron) writes from Havre, under.date of the 20th October; but does not say, when the brig would sail.” Now, this letter, in-direct terms, negatives any intention to represent any particular time of sailing.1 It leaves the question freely open to the underwriters, either for further inquiry, or for. any presumptions most' unfavourable to the assured. The natural result ought to be, that the underwriters should calculate the time of-sailing as very near the date of the letter^ so as .to ask' a premium equal to the widest range of risk, from the intermediate lapse of time. The underwriters-had no right to-presume, that ihe ship-would sail at- some future indefinite period, and to bind" the assured to-that, presumption. 'The letter told them in effect, that the assured would bind themselves to no --representation as to the time of sailing; but asked for'insurance whenever the ship might- sidl, be it on- that day, or any future day. In this view, the-point ás to representation vanishes; and the dike consideration wcuid.y in a great measure, dispose of that of concealment '

But the question, as'to this latter point,-, has been argued at the bar upon much more broad and comprehensive principles; upon which it seems proper for this Court to express an opinion, especially as this case may again undergo the considera- ■ tion of a jury.

It is admitted, that a concealment, to be fatal to the ins urance, must be of facts material to the risk; and, certainly, of thisdoc-trine,-there cannot at this time be any legal doubt. It is further admitted, (and so is the unequivocal language of the authorities,) that generally, the materiality of the concealment is a question of fact fo.r- the jury. But it is said-,, that there are exceptions from'the-rule.; and that concealment of the time of sailing belongs to the glass of exceptions, and is a question of law for the exclusive decision of the Court. It.is necessary to maintain this position in- its full extent, to extricate the present case from, its pressing difficulties'; and if this shall be successfully ihade out, it will still remain.-to be decided, whether-the facts stated in the record, are sufficient to enable the Gou,rt to-pronounce the conclusion of-law.

That- the time' of sailing is often very material to the risk, cannot be denied; that it is always so, is a proposition that-will scarcely be asserted, and certainly has never yet been- successfully maintained. How far it is so, must essentially depend upon the nature and length of the voyage, the season of the year, the prevalence of the winds, the conformation of the coasts; the usages of trade as to navigation, and touching and staying at-port, the objects of the enterprise and other circumstances, por litical and otherwise, which, may retard or advance the general progress of the voyage.' -The-material ingredients of all such' inquiries, are mixed-up with.nautical skill, information, and experience; and áre to be ascertained in part, upon the testimony of maritime persons, and are in no sense 'judicially cognizable as matter of-law. The ultimate fact-itself, ..which is the test of materiality, that is, whether the risk be increased- so as‘to-enhance .the premium; is, in many cases, an-inquiry dependent upon the judgment of underwriters and - others, .-who are conversant with the subject of insurance. In. this very case, the introduction of testimony was indispensable, to 'show the usual length of the voyage; and it was quite questionable, whether) in a just sense, the-vessel could be deemed a missing vessel, at the time of the insurance. Upon such a point; it would not be a matter of surprise,.if different’Underwriters should arrive at different results. In the nature of the'inquiry, then, there is riotHog to distinguish the time of sailing of the ship, from any otner fact, the representation of concealment of which is supposed to be máteriál to the risk. ■■ It must still be resolved into the same .element. .'

It has been said,, that .there is no cáse in which the materiality of the time of sailing has-been doubted, where the ship was abroad at' the time; whether this beso or not, it is-not important to ascertain, unless it could be universally affirmed, (which we think'it cannot,) .that the time of sailing abroad, must always-be material to the risk. If it may not always be material, the question, whether it .be so in the particular casé,-is to be decided upon its.own circumstances. Indeed,, we cannot perceive how the place of sailing, whether from a.home or foreign port, can make any-difference in the principle. The time of’ sailing from a home port, may be. material to .the risk, and if so, the concealment of it will- vitiate the policy; but whether material or not, opens the same inquisition into facts, as governs in cases of foreign ports. There may be less intricacy in conducting it, or less difficulty in arriving át a proper concia-'' sion,- but it is-essentially the same procéss.. The case, of Fort vs. Lee, (3 Taunt. R. 381,) did not proceed Upon, the ground, that-the time of sailing from a home port, was never material to be communicated'; but, that under the -circumstances of that* case, the" underwriter, if he wished to know .whether.'Ijie ship had sailed, ought to have made inquiry-. * It was a mere application to the-discretion, of' the Court to'grant a new. trial, where the plaintiff, had obtained' a verdict, and. there was no pretence of any misdirection at the trial. In Foley vs. Mo-line, (5 Taunt. 145,) the.Court said, that thei’e was' rto .pretence for. the proposition; - as a. general rule,'that it was necessary to communicate to the underwriters' whether the yessels on which an insurance, was proposed, had. sailed or. not. - There might be circumstánces, that .would render that fact highly material; as if the ship wfere’aunissing ship, -or out of time. So that here, á denial of the prbpqsition.now asserted before us, was, in the most explicit terms, avowed and acted on.

Two nisi prim cases.before Lord Mansfield, havebeen relied on, to establish the supposed exception to the general rule of eases, relative to ,the time of. the sailing of the ship; in which it is argued, that his lordship undertook to decide the point of imateriality, as -matter of law, arid' to give,, it as a rule to the jury. It is proper to remark, that little stress ought to be laid upon general.expressiohs of this sort, by Judges, in the course of trials. Where the facts are not disputed, the Judge often sug.-gests, in a strong and pointed manner, his opinion as to the materiality of the concealment, and his leading opinion of the conclusion to which' facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or the inferences deducible therefrom, from the cognizance of the .jury; but rather as. an expression of opinion addressed to the .discretion of counsel, whether it would be worth while to proceed further in the cause. And the like expression in summing up' any cause to the jury, must be understood by them merely as á strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice; be-cause, if the summing up has had an undue influence, the mistake is put-right by a new trial, upon an application to the discretion of the whole Court. This is so familiarly known, that it needs only to be stated, to be at once admitted. It is with reference to these considerations, that the cases above alluded to should be examined.

-Thefirst is Ratcliff vs. Shoobred, cited from Marshall on Insurance, p. 290. It'would certainly seem, at the first view, that Lord Mansfield did decide that concealment was material. But even by Mr. Marshall’s report, brief as it is, it by no means appears that the materiality was in question-at the-trial, but only the effect of the concealment in avoiding, the policy. The same case is reported more fully and more accurately by Mr. Park on Insurance, p. 290, where it is perfectly clear,.that the point of materiality was left to .the jury. “ The question- is, (said his lordship,) whether this be one"of those cases which is affected by misrepresentation or concealment. If the plaintiffs concealed any material part of the information they rer ceived, it is a fraud, and the insurers are not liableand the jury found a verdict for the defendant, under this direction. So that the point was left fully open to them.

The next -case is Fillis vs. Berton, cited in Marshall on Insurance, 467, and reported also in Park on Insurance, 292. The insurance was on a ship from Plymouth to Bristol; and it appeared, that the broker’s instructions stated that the ship was ready to sail on the 24th of December,- when, in fact, she had sailed on the 28d. Mr. -Marshall states, that Lord Mansfield ruled, that this was a material concealment and misrepresentation; but Mr. Park, from whose work the report is-professedly taken, uses no such expression. His words are. Lord Mansfield said this was a material concealment and misrepresentation; and the jury hesitating, he proceeded to expound to them the general principles of law on the subject of misrepresentation and concealment; and he seems to' have taken it, for granted, that the misrepresentation was material, (as from the short duration of such a. voyage might naturally be infer-ed,) and that the only point was, whether the ship had sailed or not. The same explanation disposes of the case of M’Andrews vs. Bell, (1 Esp. Rep. 373.) Indeed, in any other view, it would-be impossible to reconcile these decisions with the judgment pronounced by Lord Mansfield, and other Judges, upon more mature deliberation, when causes have been brought before them in bank.' Take, for instance, what fell-from the Court' upon the motion for a new trial, in M’Dowell vs. Praza, (Doug. R. 247. 260.) Shirley vs. Wilkinson, (Doug. R. 236.) Hodgson vs. Richardson, (1 Bl. Rep. 289.) Littledale vs. Dixon, (4 Bos. & Pul. 151,) and Hull vs. Cooper, (14 East, R. 79.) In the case of the Maryland Insurance Company vs. Ruden’s Administrators, (6 Cranch, 338,) this Court expressed the opinion, that ‘‘it was well established; that the operation of any concealment on the policy, depends on its materiality to the risk, and that this materiality is a subject for the consideration of a jury.” That opinion was acted upon by the Court of Errors of New-York, in the case of the New-York Fireman Insurance Company vs. Walden, (12 John R. 513;) where Mr. Chancellor Kent, in a very elaborate judgment, reviewed the -authorities, and laid down the doctrine in a manner that merits our entire approbation.

We think, then, that the exceptibn insisted upon at the bar, cannot, upon principle or authority, be supported; and that the question'of materiality of the time of the sailing of the ship to the risk, is a question-for the jury, under the direction of the Court,.as in other cases. The Court may aid the judgment of the jury, by an exposition of the nature, bearing, and pressure of the facts; but it has -no right to supersede the exercise of that judgment, and to direct an absolute verdict as upon .a contested matter of fact, resolving itself into a mere point of law. • If, indeed; the rule were otherwise, the facts in the record are not so full as to enable the Court to reach the desired conclusion. There is not sufficient matter upon which we could positively say, that the time of sailing was, in this case, necessarily material to the risk.

For these reasons, the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to award a..venire facias ne novo.

This cause came.on; See., on consideration whereof, It is considered by this Court, that there is error in the opifiion of the Circuit Court, given to the jury upon the prayer of the ‘defendants’ counsel; — that upon the whole evidence in the case, as stated in the record, the plaintiffs are not entitled to recover, and that the verdict of the jury'ought to be for the defendant; that opinion having withdrawn from the proper consideration of the .jury, matters of fact in controversy between the parties.

It is therefore further considered and adjudged, that the judgment of the said Circuit Court, in this-case,, be, and the same is hereby reversed; and that the cause be remanded to the said Circuit Court, with directions to award a venirefacias de novo.  