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governor at that time bought of the witness goods to the value of 4000 l. and had goods to the value of above 20,000l. and then dealt for 50,cool. and upwards: that on the 1st of April 1760, the fort was attacked by a French man of war of 64 guns, and a frigate of 20 guns, under the Comte D'Eftaigne, brought in by Dutch pilots, was unavoidably taken, and afterwards delivered to the Dutch, the prifoners being fent to Batavia. On the part of the defendant, after all the opportunities of enquiry, no evidence was offered, that the French ever had any defign upon Fort Marlborough, before the end of March 1760: or that there was the leaft intelligence or alarm, that they might make the attempt till the taking of Nattal, in the year 1760. They did not offer to difprove the evidence, that the governor had acted, as in full fecurity, long after the month of September 1759; and had turned his money into goods, fo late as the 8th of February 1760. There was no attempt to fhew that he had not loft by the capture very confiderably beyond the value of his infurance. But the defendant relied upon a letter, written to the East India Company, bearing date the 16th of September 1759, which was fent to England by the Pitt, captain Wilson, who arrived in May 1760, together with the inftructions for infuring: and also a letter bearing date the 22d of September 1759, fent to the plaintiff by the fame conveyance, and at the fame time, (which letters his lordship repeated.) They relied too upon the cross examination of the broker who negotiated the policy, that, in his opinion, thefe letters ought to have been produced, or the contents disclosed; and, that if they had, the policy would not have been underwritten. The defendant's counfel contended at the trial, as they have done upon this motion, that the policy was void ft, Because the state and condition of the fort, mentioned in the governor's letter to the Eaft India Company, was not difclofed. 2dly, Because

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Because he did not difclofe, that the French, not being in a condition to relieve their friends upon the coaft, were more likely to make an attack upon this fettlement, rather than remain idle: 3dly, That he had not disclosed his having received a letter of the 4th of February, 1759; from which it feemed, that the French had a defign to take this fettlement, by furprize, the year before. They alfo contended, that the opinion of the broker was almoft decifive: the whole was laid before the jury, who found for the plaintiff.

Thirdly, It remains to confider thefe objections; and to examine, whether this verdict is well founded. To this purpose, it is neceffary to confider the nature of the contract, at the time it was made. The policy was figned in May, 1760. The contingency was, whether Fort Marlborough was or would be taken, by an European enemy, between October 1759, and O&tober 1760. The computation of the risk depended upon the chance, whether any European power would attack the place by fea. If they did, it was incapable of refiftance. The underwriter at London, in May 1760, could judge much better of the probability of the contingency, than governor Carter could at Fort Marlborough in September 1759. He knew the fuccefs of the operations of the war in Europe: he knew what naval force the English and French had fent to the Eaft Indies. He knew, from a comparison of that force, whether the fea was open to any fuch attempt by the French. He knew, or might know, every thing which was known at Fort Marlborough in September 1759, of the general state of affairs in the East Indies, or the particular condition of Fort Marlborough, by the ship, which brought the orders for the infurance. He knew that hip must have brought many letters to the Eaft India Company; and, particularly from the governor. He knew what probability there was

of the Dutch committing, or having committed hoftilities. Under thefe circumftances, and with this knowledge, he infures against the general contingency of the place being attacked by any European power. If there had been any defign on foot, or enterprize begun, in September 1759, to the knowledge of the governor, it would have varied the rifk understood by the underwriter; on account of his not being told of a particular defign or attack then fubfifting; and he estimated the rifk upon the foot of an uncertain operation, which might or might not be attempted. But the governor had no notice of any design subfifting in September 1759. There was no fuch defign in fact the attempt was made without premeditation, from the fudden opportunity of a favourable occafion, by the connivance and affiftance of the Dutch, which tempted Comte D'EStaigne to break his parol. Thefe being the circumftances, under which the contract was entered into, we shall be better able to judge of the objections upon the foot of concealments. The first concealment is, that he did not difclofe the condition of the place. The underwriter knew the infurance was for the governor. He knew the governor must be acquainted with the state of the place. He knew the governor could not disclose it, confiftently with his duty. He knew the governor, by infuring, apprehended, at leaft, the poffibility of an attack. With this knowledge, without afking a queftion, he underwrote. By fo doing, he took the knowledge of the ftate of the place upon himself. It was a matter, as to which he might be informed various ways: it was not a matter, within the private knowledge of the governor only. But not to rely upon that, the utmoft, which can be contended is, that the underwriter trufted to the fort being in the condition, in which it ought to be in like manner, as it is taken for granted, that a fhip infured is fea worthy. What is that condition? All the

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witneffes

witneffes agree, that it was only to refift the natives, and not an European force. The policy infures against a total lofs, taking for granted, that if the place was attacked, it would be loft. The contingency, therefore, which the underwriter has infured againft, is, whether the place would be attacked by an European force; and not, whether it would be able to refift such an attack, if the fhips could get up the river. It was particularly left to the jury to confider, whether this was the contingency in the contemplation of the parties: they have found that it was. And we are all of opinion, that, in this refpect, their conclufion is agreeable to the evidence. The state and condition of the place were material in this view only, in cafe of a land attack by the natives.

The fecond concealment is, his not having difclofed, that, from the French not being able to relieve their friends upon the coaft, they might make them a vifit. This is no part of the fact of the cafe it is mere fpeculation of the governor, from the general ftate of the war. The conjecture was dictated to him from his fears. It is a bold attempt for the conquered to attack the conqueror, in his own dominions. The practicability of it, in this cafe, depended upon the English naval force in thofe feas, of which the underwriter could better judge at London in May 1760, than the governor could at Fort Marlborough in September 1759. The third concealment is, that he did not difclofe the letter from Mr. Winch of the 4th of February 1759, mentioning the defign of the French the year before. What that letter was; how he mentioned the defign; or upon what authority he mentioned it; or by whom the defign was fuppofed to be imagined, does not appear. The defendant has had every opportunity of difcovery; and nothing has come out upon it, as to this letter, which he thinks makes for his purpose. The plaintiff offered to read the account Winch wrote to the Eaft India Company,

which was objected to; and therefore, it was not read. The nature of that intelligence therefore, is very doubtful. But taking it in the strongest light, it is a report of a defign to furprize the year before; but then dropt. This is a topic of mere general fpeculation, which made no part of the fact of the cafe, upon which the infurance was to be made. It was faid, if a man insured a fhip, knowing that two privateers were lying in her way, without mentioning that circumftance, it would be a fraud. I agree it. But if he knew that two privateers had been there the year be-fore, it would be no fraud, not to mention that circumstance: because it does not follow that they will cruise this year, at the fame time, in the fame place; or that they are in a condition to do it. If the circumftance of this defign laid afide had been mentioned, it would have tended rather to leffen the rifk, than increafe it: for the defign of a furprize, which has tranfpired, and been laid afide, is lefs likely to be taken up again; efpecially by a vanquished enemy. The jury confidered the nature of the governor's filence as to these particulars; they thought it innocent, and that the omiffion to mention them, did not vary the contract. And we are all of opinion, that, in this refpect, they judged extremely right. There is a filence, not objected to at the trial, nor upon this motion; which might, with as much reafon, have been objected to, as the two laft omiffions; rather more. It appears by the governor's letter to the plaintiff, that he was principally apprehenfive of a Dutch war. He certainly had, what he thought, good grounds for this apprehenfion. Comte D'Eftaigne being piloted by the Dutch, delivering the fort to the Dutch, and fending the prifoners to Batavia, is a confirmation of those grounds. Probably, the lofs of the place was owing to the Dutch. The French could not have got up the river without Dutch pilots: and it is plain, the whole was concerted with them. And P 4

yet,

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