Per curiam,' delivered by
Livingston, J.The motion to set aside the verdict in this case, is made on the grounds of fraud and concealment. The fraud alleged, is, that Riley, who caused the insurance to be effected, knew at the time that the vessel Was lost.
Fraud, like other matters, may be established by circumstances» But the jury were not necessarily bound to conclude that Riley knew of the loss, because two of the Eliza’s crew had arrived in this harbour, in the night preceding the day on which the insurance was made, especially without proof of their coming on shore ; nor because intelligence of it had been received at one of the printing-offices in this city, as early as eight in the morning of that da^. This might be, and yet Riley know nothing of it. These and other circumstances have been submitted to the jury, and we cannot say, their verdict on this point is contrary to fevidence, or that we are at all dissatisfied with it.
The charge of an undue concealment appears to be better Supported. The vessel sailed on the 25th of September 1801, and when Riley ordered insurance to be made, he admits that he knew of her sailing as early as the 3d of October ih that year. This fact, which was a very material one in computing the risk, there is too much reason to believe, was not communicated to the defendant previous to his subscribing the policy on the'18th bf November, 45 days after the ship had left Jamaica. The same risk was underwritten only two days before, and the same policy Was used, when it was not suspected or known that the Eliza was out of time, at the same premium, at which Dclafield wrote bn the 18th, when it was known by the assured, or his agent ■Riley, that she was a missing vessel. It cannot be believed that any underwriter, however hardy, would not ask more than an ordinary premium for insuring a vessel which had been out 45 days, between Jamaica and this port. Seton, the insurance broker, certainly does not prove that he made this communication io the underwriters. The order which he speaks of was deliv-*54ercd to those wlio underwrote on the 16th, and therefore, could not have contained the information which Riley did not acquire until two days after. It is remarkable that in the memorandum made by Riley, of his transactions on the 18th, he does not say, that he informed Seta?; when the Eliza sailed. The contrary may fairly be inferred, from .the advice Set on gave him, to have ' insurance-made immediately “ as the risk would increase in a “ few days very considerably.” This observation would hardly have escaped the broker, unless he had then expected to get insurance at the ordinary premium, which he could not have supposed, if he had been informed how long the vessel had been out. A face of so much importance ought to have been more satisfactorily proved. There is no pretence for saying, the order for insurance is in the defendant’s hands, unless, as is stated, it be the one which was given on the 16th. If that be the case, which is highly probable, it would furnish conclusive testimony against the plaintiff on this point. It would establish that Seion> in obtaining an insurance on the 18th, repeated, or gave the same information to the underwriter, as was given on the 16th, and was silent as to the time of sailing, which a man so intelligent and correct would not have been, if that fact had then come to his knowledge. Knowing also the importance of his employer’s feeing able to prove so essential a communication, he would have been careful to preserve evidence of it. • But if a written communication was given on the 18th different from that of the 1 th, and it is in the defendant’s possession, the plaintiff should have put himself in a condition to prove the contents, by giving-notice to produce it.
Upon the whole, we think this fact ought to undergo a further investigation, and therefore order, that a new trial be had, upon payment of costs.by the defendant, and further that he admit on the next trial the plaintiff’s interest, and preliminary proofs.