#### CLARY *v.*THE PROTECTION INSURANCE COMPANY.

Insurance' — fraud—negligence—secreted articles — memorandum articles — watch—new trial.

If the loss result from the fraud or negligence of the insured, the loss falls on him.

If the insured practise any fraud in obtaining a policy, the risk does not attach.

*228A policy upon wearing apparel, household furniture, and the stock of a grocery, does cover linen, sheets, &c. not laid in for the use of the family or for sale, but smuggled into the country and kept secretly for clandestine sale.

A watch is a memorandum article, and not embraced in the common policy.

On a motion for a new trial, if the party obtaining will reduce its amount to what is right, he may do so and avoid the order for a new trial.

' Suit upon a policy of insurance, dated the 5th of November, 1831, upon $600, of stock, household furniture and wearing apparel, in a grocery and dwelling house, on the northwest corner of Walnut and Columbia streets, Cincinnati, against loss by fire, for twelve months.

There are six special pleas and issues not material to set out. The main defence was directed to establish fraud on the part of the plaintiff, in the *concealment*of goods in the first instance; in causing the fire, and that the fire resulted from gross negligence of the plaintiff; and that certain articles for which the plaintiff claimed payment, were not within the policy.

It appeared in evidence, that when the plaintiff applied to insure, the company sent their surveyor with the plaintiff to look at the property intended to be covered. He was taken through the shop and house. The stock was very small; there was but little furniture, and that was of a cheap kind; the wearing apparel of the family that was shown, was of the poorest kind. The plaintiff applied to insure for $> 1200, but when told the articles were of trifling value, he said that he expected to increase the stock in a few days, and to keep it up. A policy was effected for $600 only, and the plaintiff was informed that it would be increased when the stock would warrant it. No Irish linen, or sheets, or shirts, were shown to the surveyor, or spoken of. The store was a grocery, in which it is usual to keep liquors, wooden ware, slops, and gross articles of most varieties. A fire suddenly broke out about three months after the policy, and every thing was burnt up-. Compensation was claimed for the furniture, amounting to about one hundred dollars; for a watch; for the stock in the shop; and also for three hundred and sixty yards of Irish linenj nineteen pair fine linen sheets, thirty-eight fine linen shirts, and a quantity of diaper, which had been smuggled into the country from Ireland. These articles had never been used, though once washed because they were soiled in the passage. The linens, &c. were said to be stowed away in the garret, they were not used in the house, nor kept in the store for sale.

*N.*Wright, for the defendants,

contended, that the term wearing apparel in the policy, only included such articles as had been procured for *use*in the family. That the watch was neither wearing apparel nor furniture. *Phil, on Ins.*64, 69; 2 *John. R.*261. He *229insisted, that where a party preliminary to effecting a policy, shows the kind of goods he designs to insure, that excludes from the policy all other kinds not shown. If only $600 worth of goods be shown as the stock on which to effect an insurance, when there is $1200 worth, it is a fraud on the insurer, and the policy does not attach.

*Fox,*in reply.

*N. Wright,*for the defendants,

moved for a new trial, because the verdict is against evidence, and because the jury assessed damages for the linen sheets and shirts.

*Fox,*contra.

Lane, J«

charged the jury, that if there was any fraud in obtaining the policy, or if the fire resulted from the negligence or fraud of the plaintiff, he had no right to recover. Such articles of linen, sheets, and shirts as were actually laid in with a view to the use of the family, if exhibited at the preliminary inspection, were within the policy — so were such as had been laid in for sale or traffic in the usual way in the store; hut such as were concealed, and intended for secret sale, or for other use, were not embraced within the policy. The watch is of the description of articles usually denominated memorandum articles, and is not included in the policy.

Yerdict for the plaintiif $502 68.

Lane, J.

We should like this verdict better if it had omitted the price of the linen, &c. and perhaps the plaintiff will consent to reduce it by the' value of the linen, to avoid a new trial. If he is disposed to make such a proposition he may do it now, before we make up an opinion on the motion.

The verdict was so reduced, and judgment then rendered upon it.