gave it in charge to the jury, that the law will not presume that any one has been guilty of fraud, nor set aside a contract on that ground, unless it be fully and satisfactorily proved. The burthen of the proof lies on the person who would avail himself of the fraudulent conduct imputed; (Park. 242) *33but, from the nature of the thing, circumstantial evidence is all that can be reasonably expected in cases of this nature. It belongs to the jury to say, whether their minds are satisfied, that there has been any misrepresentation in the present instance.
Mr. Rawle, fro quer. Messrs. Ingersoll and Dallas pro def.Insurances are contracts of indemnity; they should be entered into and fulfilled with the purest good faith. The special facts upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only. 3 Burr. 1909. 1 Bl. Rep. 593. The underwriter trusts to his representation, and proceeds upon confidence, that he does not keep back any circumstance in his knowledge. Though the suppression should happen through mistake without any fraudulent intention, yet still the underwriter is deceived and the policy is void. If one is kept ignorant of any material circumstance, he may safely say it is not his contract. 1 Bl. Rep. 465. Whether the fact concealed is material to the risk run, is matter of fact. If material, the consequence is matter of law, that the policy is bad. These are principles of universal law, and fully recognized in the English books.
It is of considerable weight in the present case, that the defendants were not liable by the words of the policy for an average loss on the Indian corn, and it has been very properly distinguished from Hodgson v. Richardson, cited by the defendants’ counsel, where the port of loading was unquestionably important.
It is not of moment, whether the swelling of the corn might have occasioned the sinking of the vessel, or whether the loss arose from any other, cause. But the point worthy of consideration is, whether the risk run was really different from the risk understood and intended to be run, at the time of the agreement. 3 Burr. 1909. If a full communication of the corn’s being laden at Alexandria, and the sloop’s having met with bad weather in her passage to this port, would have varied the risk of the underwriters, and induced them to demand a higher premium than i¿- per cent., or utterly to refuse their subscription, then the defendants were deceived and are entitled to a verdict; but if the fact *is found to be otherwise, then the concealment is of an immaterial circumstance, and the policy is not [*34 vacated thereby.
Verdict for Vanuxem for 687^^- dollars, and against Pratt and Kintzing for SScq-jL.