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James J. M'Lanahan, Wilhelmus Bogart, and John Joseph Coiron, Plaintiffs in Error, vs. the Universal Insurance Company, Defendants in error U.S. 170 (1828)

handle is hein.slavery/ussccases0143 and id is 1 raw text is: SUPREME COURT. A-mES J, M'LANAtAN, WILHELUs BOGART, AND JOHN JOSEPH CoIRON, PL;AINTIFFS IN ElROR V. THE UNIVERSAL INSOGR- ANte CoMPANY, DEFENDANTS IN ERLROR. Insurance. It is, doubtless, within the province of a Court, in the exercise of its discrdtion, to sum up the facts inthe case to the jury ; and submit them, with the inferences of law deducible therefrom, to the free judg- ment 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 theirtrue and peculiar province. 11821 An application for a new trial, on motion after ve dict, a, Iresses 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. On a writ of error, bring- ing 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. 1183. 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- thiness for a whole voyage, quite another. {184} A policy on a ship, aL and from a port, will attach; although the ship be, at the time, undergoing extensive repairs, in port-so as, in. a general gense, for the purposes of the whole voyage, to be utterly unseaworthy. {184} W at is a competent crew for the voyage-At what time such crew should be ou board-What is proper pilot ground-What is the course and usage of trade, in relation to the master and crew being on board, when the ship breaks ground,'for the voyage-are questions of fact depend- ent upon nautical testimony, and exclusively within the province of the jury. 11841 The contract of insurance, is one of mutual good faithi and the principles which govern it, are those of an enlightened moral policy. The under- writer must be prestmed to act upon the belief, that the party procuring insurance, is not, at the time, in powession of any fact material to the risk, which he does not disclose; and that no known loss had occurred, vhich, .by reasonable diligence, might have been communicated to him. 1185} - 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} Wh'ere a party orders insurance, and afterwards receives intelligence mate- rial tfo the 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 he communicated; for the purpose of countermanding the order, or laying the circumstances be- fore-the underwriter. {185} What constitutes due and reasonable diligence, is a qvestion of fact for the j.a. 1186} , _

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