after stating the facts, and the manner in which he left the cause to the jury, delivered his opinion»The plaintiff’s counsel contend, that the cause having been submitted to the jury on a point of fact, their verdict ought not to be set aside. If it had been submitted on a matter of pure fact, yet if it clearly appeared to the Court that the jury were mistaken, it would be their duty to grant a new trial. But although in compliance with the usual practice, I left it to the jury to decide, whether circumstances material to the risk, had been concealed by the plaintiff, yet in truth in this decision were involved both law and fact. Whether the circumstances were or were not communicated was matter of fact, but the materiality of the circumstances depended in part on considerations of law. As there was’no evidence that the circumstances alluded to had been communicated, there could be no reasonable doubt on that head. But it has been said, that it was the business of the defendant to make enquiry, because being told that the cargo consisted of articles the growth of Spanish America, he was put on his guard, and ought to have enquired how they came to Newport. Whether this enquiry ought to have been made by the defendants, appears to be rather matter of law, and I think they were not bound to make it. They had a right to presume, unless informed to the contrary, that the cargo was of such a nature as might be carried from Nexvpórt to Port Passage, without being subject to capture, in consequence of facts, resting in the private knowledge of the plaintiff. Of the British orders in council of the 25th of January 1798, under which the condemnation took place, it may be fairly presumed that both parties had notice, ber cause both were too much conversant in business leading to that kind of knowledge, to be supposed to remain in ignorance of such an important state paper, which had been so *225tong promulgated. And besides this general presumption., ■there was proof of so great an anxiety in the plaintiff to have the insurance effected, as can only he accounted for from his consciousness of the risk he was running. Let us see then, what these orders in council were, and how the case of the plaintiff was affected by them. They contained instructions to the British cruizers, to seize and bring in for adjudication, all ships laden with goods, the produce of French, Spanish, or Dutch colonies, and going directly from thence to any port in Europe not English, nor the port of that country to which the ship belonged. The question turns on the word directly. The Gadsden, says the plaintiff, was not going directly from Laguira to Port Passage, because her cargo was first imported into Charleston. It must be premised, that with respect to .the insurer and insured, it is of no importance, whether the British orders in council were conformable to the law of nations or not. Between these parties, the object is an indemnification from loss occasioned by capture legal or illegal.. We have only to consider then, what construction the British courts would put on the orders in council. We know very well, what the construction has been in cases decided since the making of this insurance. The British courts have held, that the directness of the voyage from the Spanish colony to the mother country is not broken, but by a bonafide importation into the United States; and there is no instance of any importation having been deemed bona fide, without landing the goods. For this I refer to the cases of the Immanuel, 2 Rob. 169., and the William, S Rob. 349. But it is objected by the counsel for the plaintiff, that although the law is now held so, yet there had been no decision to that effect at the time of making this insurance, and therefore that the plaintiff had nothing but the orders in council themselves for his guide. Taking it so, what is the fair meaning" of those orders? Going directly, does not mean going in a direct course; that would be an absurd construction, for then nothing would be necessary to evade the order, but going a little out of the direct course. The meaning is, going in a direct voyage. The voyage may be direct and the course indirect. Whether the voyage is direct, is a matter of fact to be determined from the circumstances of the case. If the circumstances *226warrant the conclusion, that a voyage from the colony to the mother country was the real intent, the case falls within the penalty of the orders, whatever means may have been taken conceal the truth. But the intent is generally to be judged ^y actions, for it is seldom that the confession of the party' is to be had. No rule is more reasonable than this. “ Where the goods have been completely imported into the “ United States, so as to become part of the stock of the “ nation, the voyage from the Spanish colony is broken, and “ on exportation from the United States, a new voyage shall “ be said to be commenced.” I do not think it necessary to decide, whether such an importation can be made without landing, by consent of the custom house officers, although I am inclined to the opinion, that such a practice was a departure from the intent of the law. There was-proof, that in Charleston permission was given for several years, to retain cargoes on board which were intended for exportation. But this seems to have been matter of favour and indulgence; nor is there any evidence that such a practice prevailed throughout the United States, or in the city of Philadelphia, where the policy was underwritten. The question however is, whether the defendants had any reason to suppose that the goods had not been landed in the United States for the purpose of importation, and whether the not landing would not expose the ship to greater danger of capture from a British cruizer, in case she was met by one, than if they had been landed. Upon these points I see no reason to doubt. The bare touching at Charleston, and bonding for duties which were drawn back on exportation, could never remove the suspicion, that the touching was to afford a pretence for saying that the direct voyage was broken. If it gave just cause for suspicion, it increased the risk, and the defendants ought to have been tokl of it. I do not see then how this verdict can be supported, unless by assuming that in Philadelphia, where the insurance was effected, it was known to the underwriters that importations were made sometimes with landing and sometimes without landing, and also that it was usual there to take the same premium in both cases. But as no evidence was given to warrant such an assumption, on the contrary evidence having been given that the defendants had not knowingly taken such a risk, I am of *227opuiion that the verdict should be set aside, and a new trial granted. '
Yeates J.I have read the charge of the Chief Justice to the jury in this cause, and considered attentively the arguments of counsel on the motion for the new trial. I entirely assent to the charge for the reasons therein given, which it would be a waste of time to repeat.
ThSBritish Orders in Council of 25th of January 1798, were well known in the United States in 1799. I cannot bring my mind to doubt,/that if in October 1799 two risks were offered to underwriters, one of goods, the produce of a Spanish colony, coming from those colonies immediately to a port in the United States, and there fairly landed and the duties paid, upon' a voyage to Spain, — and the other upon the same goods where they had not been landed, such underwriter would view the latter case as an increase of risk, though no judicial decision had passed on the subject.
I Therefore consider the verdict against law, for the want of disclosure of a material fact known to the insured alone, and that a new trial should be granted.
Brackenridge J.Was there an importation in this case? Is not this a conclusion of law from facts? The facts seem to be admitted on both sides. The conclusion of law was drawn by the Court, whose opinion would seem to have been, that an importation according to law had not taken place. Whether this was material to the risk, was a conclusion of law from facts. The facts depended upon orders of council, instructions to armed vessels &c., and were not in dispute. The conclusion of law in the opinion of the Court would seem to have been that this was material to the risk, and if so, the facts from which the conclusion of law as to importation was to be drawn, ought to have been communicated to the insurer, and of that opinion I am, and that this verdict therefore is against law and the charge of the Court, ancTthat a new trial ought to be granted. When it comes to a new trial, the facts being admitted, as in the argument of the case they would seem to have been, but two questions will remain to be decided, and the determinations of these will be against the plaintiff, so that he cannot recover.
Call the question of importation in this case a question of *228fact, it must be subject to the direction of tbe Court what! will amount to an importation in this case, and this will be a construction of law. Call it a question of fact, whether the concealment in this case was that of a fact material to the risk, it will be subject to the direction of the Court whether material, and might be put to the Court by the jury to say, whether the matter concealed varied the risk, as a question of law arising from the facts. Putting myself in a situation at the trial as bound to answer these questions, I would have told the jury, that there had not been an importation for the purpose of legal exportation, so as to break the continuity of the voyage, and render its parts distinct; and that this materially affected the risk, and ought to have been communicated, which not having been done, it was a suppressio veri, and in contemplation of ,law a fraud, and vacated the policy ab initio, so that no recovery could be had in the case.
I concur as to its being the duty of the insured, to have Communicated the facts as to the importation, and that it did not lie with the insurer to enquire, notwithstanding there might have been something from the nature of the cargo to put him upon enquiring.
The voyage in this case was a direct voyage, a bona fide importation not having taken place. I lay any indulgence or custom of collections in ports out of the case. The law can know nothing of this, as to the question of a bpna fide importation.
New trial granted.