other, before the insurance was completed: and such a case, although improbable, is yet possible to occur. In regard to the construction and materiality of a representation belonging to these classes, there are no special observations that are requisite to be made. They are governed by the rules that have already been stated, in regard to positive representations, so far as those rules, without a manifest repugnancy, can be applied.

A representation, in every one of the forms that we have now considered, relates to facts extrinsic to the policy, although it is only when the representation is positive in its terms that it af firms or stipulates their existence. A declaration made by the assured, or his agent, prior to the insurance, that he was willing that a particular clause or expression in the policy should be construed in a sense different from its proper import and legal construction, and more favorable to the risks, could not be alleged as a valid representation.(a) It may seem difficult to trace a clear line of distinction; yet it may be regarded as certain that evidence of such an agreement would never be allowed to control or vary the interpretation of the policy: nor is it at all desirable that any further change in this direction, opening a wider door to the admission of parol evidence, should be made. What is really desirable is, that it should be established as an unvarying rule, that all representations not inserted in the

(a) Note 28.

policy, should be reduced to writing, and be signed by the parties. This change in the existing practice, which it is for the interest of the assured, as well as the underwriter, should be made, might be readily effected by a suitable clause in the policy: and, if adopted, would perhaps sufficiently harmonize our own law, with the general law of commercial nations.

LECTURE VII.

NOTES AND ILLUSTRATIONS.

NOTE I.

In the case of De Hahn v. Hartley, (1 T. R. 343,) these words, "Sailed from Liverpool, with 14 six pounders, "swivels, small arms, and fifty hands or upwards, cop"per sheathed," written in the margin of the policy, were held to be a warranty. In Kenyon v. Berthon the following words were written transversely in the margin of the policy:-"In port on the 20th of July, 1776." Lord Mansfield was clear that they were a warranty, and as the vessel was proved to have sailed on the 18th of July, that the underwriter was not liable, although the difference of two days was not material to the risk. (Doug. 12, No. 4.) See also, Bean v. Stupart, (Doug. 11.) If a vessel is described in the policy as an American, British, Swedish ship, &c., it is a warranty of national character. Goix v. Low, 1 Johns. Cases, 341. Murray v. Unit. Ins. Co., 2 Johns. Cases, 168. Barker v. Phon. Ins. Co., 8 Johns. 237. Francis v. Ocean Ins. Co., 6 Cowen, 404; and for other cases see post Appen.

Lecture VIII.

NOTE II.

There are a few cases in which statements in the policy have been construed as representations. Hodgson v. Richardson, (1 Black. 463; Park, 248.) The insurance was on vessel and cargo at and from Genoa to Dublin, "the adventure to begin from the loading to equip for the voyage." Lord Mansfield, with whom Mr. Justice Yates concurred, held that these words plainly implied that Genoa was the port of loading, and, as it appeared in evidence, that the vessel took her cargo on board at Leghorn, and that Genoa was an intermediate port of necessity, where the vessel had lain a long time, that the policy was void for misrepresentation and concealment it being established by the witnesses that it was material to acquaint the underwriters, whether the insurance was to be at the commencement or in the

middle of a voyage. Thus the words of the policy were not considered as a warranty that the vessel had loaded, or would load, at Genoa, but merely as a representation of the fact, affecting the policy only because it was material. Mr. Justice Wilmot was of opinion that it was unnecessary to speculate on the materiality or immateriality of the fact, as he considered the words of the policy as affirming that Genoa was the loading port, and such it is now settled is the true construction.

Reid v. Harvey, 4 Dow. Rep., 97. The insurance was on goods from Lisbon to Clyde, at a premium of ten per cent. "to return five per cent. for convoy and arrival." It would have been absurd to have construed these last words as a warranty, that the vessel would sail with convoy, but Lord Eldon, who delivered the judgment of the House of Lords, affirming the decision of the Court of Session in Scotland, was of opinion that they were clearly a representation that it was probable