6 TAUNT. 338. BDFE V.
TURNER 1065
BUFE v. TURNER AND OTHERS. NOV. 9, 1815.
[S. C. 1 Marsh. 46.]
The Plaintiff having one of several warehouses, next but one to a boat-builder's shop
which took fire, on the same evening, after that fire was apparently extinguished,
gave instructions, by an extraordinary conveyance, for insuring that warehouse,
then having others uninsured, but without apprizing the insurers of the neighbour-
ing fire. Though the terras of insurance did not expressly require the communication,
held that the concealment of this fact avoided the policy.
This was an action of covenant brought against the directors of the Phoenix Fire
Insurance Office upon a policy of insurance, dated the 25th July 1814, effected by the
Plaintiff on a certain warehouse in Heligoland. The policy referred to a letter of the
Plaintiff's of 11th July 1814, containing the instructions for the insurance and certain
conditions to the policy annexed, amongst which was, that if any person should insure
his buildings or goods, and should cause the same to be described in the policy other-
wise than as they really were, so as the same were charged at a lower premium than
was therein proposed, such insurance should be of no force, and that persons insured
should give in a particular of their losses, signed, and verified upon oath : and if there
appeared any fraud, or false swearing, the claimant should forfeit his claim to restitu-
tion or payment. The Defendants, among several pleas, pleaded, 2dly, that immediately
before and. at the time of the writing the Plaintiff's letter referred to in the declaration,
to wit, on 11th July, the warehouse in the declaration mentioned, and the merchandizes
contained therein, being the premises intended to be insured by the policy, were in
imminent peril of being consumed by fire, which the Plaintiff at the time of writing
the letter very well knew; that the policy was effected upon the representation con-
tained in the letter, but that the [339] Plaintiff fraudulently and deceitfully, and with
intent to induce the Defendants to effect the policy, before and at the time of effecting
the same, concealed from the Defendants the fact that the premises were in such
peril; by reason of which concealment the Defendants averred that the policy was
void. The Plaintiff replied, that at the time of writing his letter, he did not know
that the premises were in imminent danger of being consumed by fire, and did not
fraudulently and deceitfully, and with intent to induce the Defendants to effect the
policy, conceal from the Defendants the fact that the premises were in such peril.
The Defendants joined issue on this replication. The cause was tried at Guildhall,
at the sittings after Trinity term 1815, before Gibbs C. J. It appeared that the
Plaintiff was possessed of two warehouses at Heligoland, one of which was separated
by only one other building from the workshop of Jasper a boat-builder, wherein a fire
broke out about seven o'clock in the evening of the 11th of July. That fire, however,
was apparently extinguished in half an hour, and four persons were employed by the
Plaintiff, who was a magistrate there, to watch during the night lest the fire should
again break out. The Plaintiff on the same evening wrote the letter referred to in
the declaration to his agent in London, requesting him to effect the insurance against
fire for three months, of 4001., upon the Plaintiff's warehouse, No. 1, situate on the
South quarter of the lower town, between the warehouse of Mr. John Leader to the
South, and that of Mr. Nicolaus Peter Krohn to the North, as also upon the coffee in
casks and bag3 then stored in the same warehouse, value 35001. The mail for England
was to sail that day, and was then closed; but the Plaintiff procured the master of
the packet-boat to take the letter with him, and pub it into the post office at Cuxhaven,
so that the letter left Heligoland at a l*te hour on the same [340] night, and it
C. P. vi.—34*
1066 6 TAUNT. 341.
reached England by the same packet on the 24th, and the Plaintiff's agent, on the
following day, effected the policy in question. Early on the morning of the 13th a
fire again broke out in the workshop of Jasper the boat-builder, and consumed the
premises insured. The jury acquitted the Plaintiff of any fraud or dishonest design,
the fire being apparently extinguished when he ordered the insurance, but thought
that the circumstance of the fire on the 11th ought to have been communicated to the
Defendants, who without this information did not engage on fair grounds with the
Plaintiff, and for whom, under these circumstances, they gave their verdict.
Lens Serjt. now moved to set aside the verdict and have a new trial, but the Court
Kefused the Kule.
