We are satisfied, that the jury never considered this fact as ligitated, and that the counsel for . the took it for granted, that it would be inserted in the special' verdict of course, as an unqestionable fact. It would be- unjust, therefore, to deprive the party of the means of ascertaining whether or not the jury did find it. We are of opinion, therefore, that a venire de novo, should be awarded, to try the single fact now in question.
On the next day, the counsel for the plaintiff, consented to insert the fact above stated, in the special verdict, and the cause was then argued on the verdict as amended.
The cause was tried at the New-Tork sittings April-, 1805, before Mr. Justice Thompson.
From the peculiar circumstances, as well as importance of this cause, it may be proper to state the facts found by the special verdict.
Thq policy, interest, loss and abandonment, were proved’ on the trial. The policy in question, was effected by the plaintiffs, on the 12th October, 1801, - pursuant to an order from Henry Stouffer of Baltimore, contained in- a letter, written the ,8th October and addressed to them as his agents, on 850 doubloons, equal to 13,600 dollars, on board of the Schooner Harriet & Ann, from Jamaica to Baltimore. The vessel sailed-from Kingston on the 26 August, 1801, on the voyage insured, in all respects sea-worthy, with the property insured on board, which belonged to Henry Stouffer and Andreas Finkin, for whose account the insurance wag made. The doubloons were neutral property, and continued on board until the 11th September, 1801, when they were lost in the vessel, which foundered and sunk by the perils of the sea. Before the vessel sailed from Jamaica, Finkin wrote four letters dated at Kingston, the-16th August, 1801, of the same tenor and date, directed to the said Henry Stouffer of Baltimore, advising him of the intended shipment of "the doubloons, and directing insurance to be made. The letters were sent by different conveyances, to the United *153States; one of then! was put into the post-office at Norfolk, in Virginia on the 1st October, 1801 ; another of the letters had the post mark of “ Charleston, S. Carolina another, on which the post mark was illegible, except “ 19 cents,” and the other marked, “ ship 6 cents,” were all received, at the compting-house of the said Stouffer, at Baltimore, at the same time, on the 7th October, and were all actually delivered to him, on the 7th or 8th day of October ; at that time, he knew nothing of the loss of the Vessel, and was not informed of it, until the 14th day of the same month.
Finkin was on board of the vessel on her voyage, and, at the time she foundered, went on board the brig Lucy, bound to Boston, and continued until the 29th September, when he was put on board of the brig Friends, of Neto- Tori:, then going into Norfolk in distress. One of the letters ordering insurance to be effected, was put on board of the Friends at Jamaica. The Friends arrived at Hampton Roads, on the 30th September ; Finkin remained at Norfolk 7 or 8 days, but owing to contrary winds, no packets sailed from thence, for Baltimore ; he was sick most of the time he was at Norfolk, and did not go ashore until the 6th of October. He Was a Danish - burgher, and it did not appear, that he had ever been in Norfolk before ; he had sailed out of Baltimore in 1799, but there was no evidence that he had been a resident there.
While Finkin was at Norfolk, he wrote a letter, dated the 1st October, 1801, addressed to a person in Boston, but there was no evidence that the letter had been sent by mail. Rhodes the master of the Friends, went by water, from Norfolk to Baltimore, and arrived at Fell’s Point the 12th October, and on the same day wrote a letter to Henry Stouffer, informing him of the loss', of the schooner and the doubloons, which letter was received by Stouffer, on the 14th day of the same month. The vessel in which Finkin and Rhodes went from Norfolk to Fell’s Point, was prevented by the quarantine regulations, from going up to the city of Baltimore on her arrival. Norfolk is a regu*154lar post town, and the mail is seven days in going from thence to Baltimore. The bill of lading of the property was filled up in the English language, in the hand-writing of Finkin, who, v/hile he' was .at Norfolk, wrote a letter ad- . dressed to Captain Rust of Boston, dated the 6th October, 1801, which had the post mark of that day ; he mentioned his having written before, to another person in Boston, that he had forgotten the money he put into the hands of Captain Rust; when he left the vessel, which was in doubloons, and requested it might be forwarded to Mr. Stauffer. - It appeared also, that Rhodes, the master of the Friends, went on shore at Norfolk, on the 30th September, and made his protest before a Notary Public of that place.
■ This cause had been tried before, and on the motion for a hew trial, the points of law were fully argued by the counsel. See 2 Caines 224.
Radcliff for plaintiff, (Hoffman and Riggs on the same ■side) contended, that several new facts appeared in the case now before the court, which rendered it, in several important particulars, different from the one presented on the former argument for a new trial. He admitted, that where an order of insurance is given, and immediately after the party receives news of the loss, and does not countermand the order, such conduct must be considered as evidence of fraud. But here Finkin was perfectly innocent. He knew nothing of the arrival of the order, nor of that given by Stoujfer for the insurance. No fraud or negligence, can fairly be imputed to him. When he arrived at Norfolk, and during his stay there, he was sick, a stranger, and ignorant of all those circumstances, the knowledge of which might be deemed as evidence of a fraudulent inaction. It may be said so far, as the insurance is to be presumed to have been made on the order sent by the Friends, it must be considered as fraudulent; but if that letter had been stopped, it could not have made any difference, as all the letters were ■actually received at the same time.
Harison contra, (Pendleton on the same side.) It is attempted to shew, that the case now before the ■ court, is materially different from that presented on a former ecqa**155sion; but if perused with attention, its features will be found essentially the same. No fact appears, which can possibly induce the court, to alter the opinion they have be. fore expressed. It is found, that four letters, instead of three, were sent, directing the insurance to be made. This circumstance did not vary the case, for if Finkin knew that any one of them had not arrived, his duty was precisely the same. Whether the vessel arrived at Hampton Roads, or Norfolk, did not vary the merits of the caseand whether Finkin went on shore or not at Norfolk, was perfectly immaterial, if he was able to write a letter. The sickness which is alleged, as an excuse for his not. writing to give information of the loss, can be of no avail. He was well enough to write two letters to Boston, and could have written to Netv-Tork and Baltimore. To render it a sufficient excuse, his sickness should have been so severe, as totally to incapacitate him from doing business. He cannot allege his ignorance of mails and post days, or that he had no opportunity to send a letter, for the captain went on shore the 30th September, and he might have sent his letter by him, to be forwarded. In short, it will be found, that the facts in the present verdict, are the same as those stated in the former case, and that the new circumstances which appear, are wholly immaterial. It is said that the opinion before given by the court, goes much further, than any case decided in the courts of Great Britain.* I think not, for here is that crassa negligencia, that gross neglect in the parir, which has the same effect as fraud. It was the duty of Finkin, knowing of the letters sent by him, directing the insurance, to have written immediately on his arrival, to Stonffer, to inform him of the loss. The insurers ought not to be made answerable for his supineness, or neglect.
Per Curiam.This special verdict, presen is nothing to induce us to change the opinion, we have be fore given in this cause. The additional facts, or circumstances, which it contains, do not in any degree, vary the merits of the case. We shall therefore, adhere to our former decision.
Judgment for the defendant,
Grieve v. Young, Millar 65. Fitzkertert v. Mather, 1 D. & E. 12. See also Guidon 4. Marine Ord. of France. Art. 38. 39—-2 L'merigon, 187. Puller d'assu. Art. 1. § 243.