puted either to the fraud or the promise of the assured he continues liable. The position of Mr. Marshall, it thus appears, is so far from being correct, that in cases where there is no fraud, unless the representation amount to a positive stipulation, that is, unless it forms a material part of the contract between the parties, the insurer is not discharged at all. The correction of these errors in the definition of Mr. Marshall, is of more practical importance than may at first appear. The positions that he assumes have been a frequent source of perplexity and error in the decisions. The judges, both in England and the United States, from obvious reasons, have been reluctant to admit that to receive extrinsic proof of a representation is, in many cases, to violate the rule of law forbidding the alteration of a written contract by parol evidence, and hence the verbal sophisms that a representation is no part of the agreement, and that it is only on the ground of fraud, or of a quasi fraud, that a misrepresentation avoids the contract, have been too readily adopted. In some cases these sophisms are adopted as true, and are followed to their legitimate consequences, and in these a representation proved to be material, and entirely consistent with the terms of the policy is not permitted to vary its legal construction, but in most cases the judges, while they hold the same language, do not suffer it to influence their decisions, but allow the falsity of a representation, not distinguishable in its character or its effect on the construction of the policy, to defeat the claims of the assured; and it is to this vacillation of the judges, arising from an unwillingness to perceive or confess the certain truth, that every positive representation is a substantive addition to the terms of the contract, and, as such, modifies the construction of the policy, that the contrariety in the decisions to which the text alludes, is mainly owing. I shall now refer to a few cases in illustration of these remarks.

Vandervoort v. Smith, (2 New-York Term Rep. 155.) The policy in this case was on the cargo of the schooner Four Sisters, at a premium of 27 per cent., "at and from "New-York to two ports on the coast of Brazil." Before the insurance was effected, the assured made a representation in writing to the underwriters, that the two ports to which the vessel was destined were within a few hours' sail of each other. The vessel proceeded on her voyage, and arrived at Rio Janeiro, but instead of sailing thence to another port, within the distance represented, she proceeded to Para, which, although a port of Brazil, is about two thousand miles from Rio Janeiro. The vessel and cargo were seized by the Portuguese, in the mouth of the river Para, and condemned for an illicit trade, and for this total loss the plaintiff sought to recover. The principal ground of defence was the misrepresentation of the voyage.

It is evident that the representation in this case was entirely consistent with the terms of the policy. Had it been added to the description of the voyage in the policy there would have been no contradiction. It would have operated to restrain the discretion of the assured in the choice of the ports, but would not have altered the nature of the voyage. Its materiality was also proved by the most conclusive evidence, as it appeared that the defendant, upon the faith of the representation, bad actually deducted six per cent. from the rate of premium he had first demanded. It would therefore seem that, in consistency with other decisions, the validity of the defence ought to have been admitted. The court however arrived at the conclusion, that the writing containing the representation "could be received for no other purpose than to establish a fraud." Mr. Justice Thompson delivered the opinion of the court, and that he is chiefly governed by the authority of Mr. Marshall is evident from the fact that

he expressly adopts his definition in the sense in which it has been explained. The reasons he assigns are a necessary corollary, from the definition thus understood; yet, it will be seen that to admit their validity is to exclude the evidence of a representation in all cases whatever, except those of actual fraud. He remarks, in substance, that the terms of the policy were free from ambiguity, and that no extrinsic proof was necessary to render them intelligible. That in their plain legal construction they gave to the assured the right to proceed to any two ports on the coast of Brazil, so that the testimony offered was calculated materially to alter and restrain the policy. If the representation was admitted to control the interpretation, it would confine the discretion of the assured by restricting the voyage to two ports within a short distance of each other,* and that as a representation could never be considered a part of the contract, the evi

* The following are the passages of the original opinion that I have attempted to condense. The parts omitted do not at all vary their import.

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"It is essential, therefore, to a representation, that it be of some matter out of "and collateral to the contract, and makes no part of the policy. It cannot be said "that this policy is silent on the subject of the ports to which this vessel was to "sail, they are expressly made a part of the contract, and that with all necessary "legal certainty. She was to go to two ports on the coast of Brazil. Supposing there "had been no evidence whatever offered of any communications between the "parties previous to the signing of the policy, would it have been void for uncer"tainty? clearly not: the legal construction in such a case would have been to "two ports on the coast of Brazil, at the election of the assured. If the course of the 'voyage then be described in the policy with all necessary and legal certainty, "this could not be considered a matter collateral to, and making no part of, the in"strument." "In the case of Moses v. Ansell,(a) the court said no parol evidence "is admissible to substantially vary, alter, or impugn a written agreement. No "ambiguity appears on the face of this policy; the words are intelligible without any aid dehors the instrument. The testimony offered is calculated materially to "alter and restrain the policy. As it now stands, the assured had undoubtedly a " right to go to any two ports on the coast of Brazil, at their election. If the "previous communication on the subject of the voyage is to control the policy, the "assured would be restricted to two ports within four or five hours' sail of each "other." 2 New-York Term Rep., p. 161, 162.

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(a) 3 Wills., 275.

dence could not be received without infringing the rule that no parol evidence is admissible substantially to vary, alter, or impugn a written agreement. Now, all these observations, with the exception that a representation is no part of the contract, are undeniably true, and were this also true, the whole would be undoubted law; but it happens to be equally true that, with the single exception of the cases where the proof is offered to remove a latent ambiguity, the effect of every positive representation when admitted in evidence, is to alter substantially the legal construction of the policy. Its effect universally is to give to the agreement of the parties expressed in the policy a construction different from that it must otherwise have received: nor can we doubt that such is the case when we reflect that every positive representation is a condition, on the substantial truth of which the validity of the whole contract depends. The reasoning, therefore, of the learned judge is inconsistent with every case in which the evidence of such a representation has been received. It cannot, however, be denied that the admission of the evidence involves in every case where no fraud is alleged, a violation of the rule which he refers to, and on which he founds his decision. Instead of seeking, by verbal distinctions, to evade this difficulty, it would be far better that judges should at once confess that such is the fact. It would be better to state the law as it is, that the rule in question, as a general rule, is undoubted, but that policies of insurance, so far as they depend on the prior representations of the assured, are an exception from its authority. Mr. Justice Thompson also states as another distinct ground of the decision, that to receive the evidence would be to violate" that "very salutary rule of law, that when an agreement is "reduced to writing all previous treaties are resolved into "that." Now, to apply this rule to a representation is to

exclude the evidence absolutely, even when it is offered to establish a fraud. The rule rests on the presumption-generally a very reasonable one-that what is not included in the written agreement was waived by the parties. Apply this presumption to a representation, and it follows that the insurer can never allege himself to have been deceived by that which he had consented to waive; in other words, on the truth of which he had agreed not to rely.

In the nisi prius case of Flinn v. Tobin, (1 Moody & Malkin, 337,) Lord Tenterden seems to have fallen into the same train of reasoning as the Supreme Court of New-York, in Vandervoort v. Smith. The policy was on the ship Andromache. The defence arose on an alleged misrepresentation. It was stated, on the part of the defendants, that the first underwriter on the policy, on being asked to effect an insurance on the ship, had inquired what cargo she was to take, and on being told that she was to have a cargo of rock salt, had refused to insure her, considering that a very dangerous cargo for a vessel of her quality that the broker, after making further inquiries, had returned, and then stated that she would only take fifty or sixty tons of rock salt, which would be no more than ballast trim; and upon this representation, the underwriters consented to insure her. She sailed however on the day after the policy was signed, with a cargo of 160 tons of rock salt, a full and very heavy cargo, and was lost at sea. As every subsequent underwriter may avail himself of a misrepresentation made to the first, it was insisted that these facts were a full defence.

Lord Tenterden, in summing up to the jury, said, "I think the defendant in this case will not be entitled "to a verdict, unless he satisfy the jury that there was "a fraudulent misrepresentation of the cargo, which the