"Andromache was to carry. If he does so, the plaintiff "cannot recover, but the mere fact of misrepresenta"tion without fraud, will not be enough to prevent the "plaintiff's recovering, for the contract between the par"ties is the policy, which is in writing, and cannot be "varied by parol. No defence, therefore, which turns "on showing that the contract was different from that "contained in the policy, can be admitted, and this is the "effect of any defence turning on the mere fact of misrepre "tentation without fraud." These last words are remarkable they are a distinct admission of what I have endeavored to show, that the effect of every defence founded on a misrepresentation without fraud, is to alter the construction of the policy, and his lordship's language is an express denial of the validity of such a defence in any case whatever. The contrary doctrine is too firmly established to be at all affected by this nisi prius decision, to which, it will be seen, even Lord Tenterden did not adhere.

Another case on the same policy, but against a different defendant, was afterwards tried by Lord Tenterden, and came before the King's Bench on an application by the defendant for a new trial. (Flinn v. Headlam, 9 Barn. & Cress., 693.) On the trial substantially the same representation was proved to have been made, as in Flinn v. Tobin, but it also appeared that the agent of the plaintiff had obtained a certificate, stating that the vessel was strong, stiff and staunch, perfectly seaworthy and fit to prosecute her intended voyage, and carry a cargo of rock salt, and that this certificate was shown to the underwriters; and it was submitted to the jury as a question of fact, whether the underwriters were guided by this certificate, or by the representation of the broker. The jury found a verdict for the plaintiff, and said they thought the representation not material. The court re

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fused to disturb this verdict, and in giving their opinion, Lord Tenterden said, that "if the jury thought that the "defendant took the risk, not on the representation that only a small quantity of rock salt had been or would be "put on board, but on account of the certificate of seawor"thiness, they said rightly that the representation was not "material." But not a word is said in this opinion as to the effect of the representation in altering the construction of the policy, and the invalidity of the defence on that ground on the contrary, the language of his lordship clearly implies that had the jury deemed the representation material (a question that in Flinn v. Tobin he had decided, could not be left to them,) it would have been their duty to find a verdict for the defendant. This is retracting entirely what his lordship had said before at nisi prius: the inference is, that he became satisfied by conference with his brethren, that the doctrine then advanced was erroneous. For the cases in which a misrepresentation without fraud has been held to avoid the policy, see post, Note IV.

NOTE IV.

Lord

Fillis v. Brutton, (Park, 250; 1 Phillips, 266; 1 Park, Hildyard's, p. 414.) In this case the broker represented that the vessel on which the policy was effected was in port, and ready to sail on the 24th of December, when she had in fact sailed on the 23d of December. Mansfield, in his charge to the jury, said, "In all in"surances it is essential to the contract that the assured "should represent the true state of the ship, to the best "of his knowledge. On that information the under"writers engage. If he states that as a fact which he

"does not know to be true, but only believes, it is the

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same as a warranty. In this iusurance the only material point is this, Had the vessel sailed, or was she in "port" Upon this charge the jury found for the defendants. In saying that the "representation of a fact "is the same as a warranty," his lordship could hardly have meant that it must in all cases be just as strictly fulfilled, with no regard to the materiality of the variance, for this would abolish the sole distinction that subsists between them, and would be inconsistent with his own language in other cases. His meaning could only have been that it is an undertaking equally positive for the truth of the facts represented, not a mere declaration of the belief of the party. It is however observable that the difference in the time of sailing was only of one day, and that this was not proved or alleged to be material; nor can it be said that the case turned on an actual fraud; for Lord Mansfield told the jury that the only question was, whether the fact represented was true? not whether it was known to be false by the assured, or his broker, at the time of the representation.

Vandenheuvel v. The United Ins. Co. (2 Johns. Cases, 129.) There were two policies, one on the cargo, the other on the freight of the ship Astrea, on a voyage from New-York to Corunna, and they were effected on the written application of the plaintiff, who was an American citizen, representing that he was the sole owner, which, on the trial, was admitted to be the fact the vessel was captured by a British frigate, and vessel and cargo were condemned by the Court of Vice Admiralty at Gibraltar, as enemies' (Spanish) property. The court decided that this sentence falsified the representation of ownership, which was in effect a representation of neutrality. Radcliff, J., said, " From the

"situation of the plaintiff, and the representation made "to the defendants, the insurance must be considered "as made upon American or neutral property. The "representation is to this purpose equivalent to a war"ranty of that fact, and liable to the same result." Benson, J., said, "When the property is insured as "neutral," (by which, referring his language to the case, he evidently meant, whether represented or warranted as such,) "the law intends, not only that the neutrality "as a quality in the ownership of the goods then ex"ists, but likewise that it shall be preserved during "the continuance of the insurance." In this case, the vessel was described in the policy as American, which was afterwards held to be itself a warranty; but in Vandenheuvel v. Church, (2 Johns. Cases, 173, Note a,) in which there was no warranty in the policy, but in the instructions to the broker the vessel was represented to be American, and the owner a citizen of the United States, the court made the same decision, that the representation was equivalent to a warranty, and the foreign sentence conclusive evidence of its breach. The case of Vandenheuvel v. The United Ins. Co., was afterwards reversed by the Court of Errors, but solely on the ground that foreign sentences are not conclusive. (2 Johns. Cases, 451.) I subjoin an abstract of the other leading cases in which a misrepresentation of a fact without fraud has been held to avoid the policy, or been admitted to be material and binding; a class to which both of the preceding cases belong.

Macdowall v. Fraser, (Doug. 260.) This was an insurance on a vessel from New-York to Philadelphia, and at the time it was made it was represented in positive terms that the vessel "was seen safe in the "Delaware on the 11th December," whereas, it was proved that she was in fact lost on the 9th of Decem

ber; and the jury, believing the misrepresentation material, found a verdict for the defendant. There was

no pretence or suspicion of fraud; but the plaintiff had made a wrong computation of the time founded on the information he had received, and instead of stating the intelligence in the terms it was given to him, substituted his own false inference as a fact. On an application for a new trial, the counsel for the plaintiff admitted that a representation, if false in a material point, avoids the policy: but contended that the particular day on which the vessel was seen in the Delaware was not under the circumstances material; whilst, on the part of the defendant, it was insisted that the question of materiality had been settled by the verdict of the jury. Lord Mansfield (inter alia) said, “When the assured represents a fact without knowing it to be true, he takes "the risk of it upon himself. There was no evidence of "actual fraud in the present case, and no question of "that sort seemed to be made. But there was a posi❝tive averment that the ship was seen in the Delaware "on the 11th of December. The underwriter was de"ceived as to that fact, and entered into the contract under "that deception. Why did the insurer take upon him to 66 compute the day of the month on which the vessel was "seen? Why did he not mention exactly what his in"formation was, and leave the underwriter to make "the computation." He added that "in insurances on "vessels at a great distance, their being safe up to a "certain day, was always considered a very important "circumstance," and he was therefore of opinion that the representation concerning the day was material. The other judges concurred, and Ashhurst, J., said, "In former cases, the representation was of what was "intended; here, it was of a fact, stated as having happened within the knowledge of the insurer. He should