as to the usage; had such a usage existed, the representation would have been construed as affirming that it had been followed, and that a cargo was then prepared, and waiting the arrival of the vessel. Thus, in few words, the absence of the usage prevented the representation from being construed as an affirmation of an existing fact, and considered as relating to a future, it was construed to refer merely to an expectation because the party had no power to control the event. Hubbard v. Glover, therefore, rests on the same principle as Bowden v. Vaughan; and, like that, is an exception to the general rule, which, instead of weakening, it confirms.

Brine v. Featherstone, (4 Taunt. 869,) has been sometimes quoted as showing the construction of a representation of a future event. But such was not the character of the representation; it related to a fact alleged to exist at the time the policy was subscribed; and the ground of the decision seems to have been that the representation ought, from the circumstances, to have been construed, only as the expression of an opinion into the grounds of which the insurers were bound to inquire, and not as a positive averment of the existence of the fact. The case turns upon its particular circumstances, and throws no light whatever upon any general principle or rule. It is moreover obscurely reported, and the reasons assigned by the judges for refusing a new trial are so various, that the true grounds of the decision are difficult to be ascertained. Hence it is unnecessary to give an abstract.

NOTE XIV.

Chaurand v. Angerstein, (Peake's N. P. R., 43.) In this case it was represented to the underwriter that the ship

was to sail "in the month of October preceding," but the assured, before the representation was made, had received two letters from their captain, stating that he would probably sail between the 5th and 10th of October. She actually did sail on the 11th. These facts were relied on as proving the representation to be false, and the question turned on the construction of the words "in the month of October," whether they meant any time in the month, or were restricted by usage to a particular part of it. On the part of the defendant several merchants and other commercial men were called, who said that the expression "in the month of October," used in reference to the sailing of a vessel, was well understood among commercial men to signify some time between the 25th of that month and the 1st or 2d of the succeeding month, and it being also proved that the difference in the time of sailing was material, the defendant had a verdict.

It might be inferred from the language of Mr. Marshall, that in some cases the falsity of a representation which is at variance with an established usage of trade, will not avoid the policy, but that the usage, instead of governing the construction of the representation, will actually supersede it. His words are, "Even if a representation as to "the course of the voyage be literally untrue, yet if it be "made in conformity to an established usage of trade, and 66 no person be deceived by it, and the voyage meant to "be performed be within the policy, it will not avoid the "contract."(a) It is undoubtedly true, that when it appears that the insurer was not deceived by a representation, or, in other words, placed no reliance on its truth, he is not permitted to aver its falsity, since a representation that had no influence on the terms of the contract is justly

(a) 1 Marsh. 461.

regarded as immaterial; but the meaning of Mr. Marshall, in the passage cited, taking it in connection with the case to which he refers, seems to have been, that the mere existence of an opposite usage is sufficient evidence that the representation was not relied on, which is in effect saying that an inconsistent usage will supersede a positive representation. This position, I apprehend, is in itself untenable, and certainly it is not supported by the case to which the learned writer refers.

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Planche v. Fletcher, (Doug. 250.) The insurance was on goods "on board the Swedish ship called the Maria Magdalena, lost or not lost, at and from London and "Ramsgate to Nantz, with liberty to call at Ostend." The vessel cleared out for Ostend only, and this fact appears from the case to have been known to the underwriters. It was not, however, intended that the vessel should go to Ostend at all, but should proceed immediately to Nantz. The clearance, therefore, and the other papers procured from the British custom-house, were false, and they were in fact destroyed, and other false papers substituted as soon as the vessel got to sea. On the motion for a new trial, it was insisted by the counsel for the underwriters, that the use of false papers, and the suppression of the true destination of the vessel, were circumstances of fraud, as they tended to mislead the underwriter as to the voyage intended to be insured and the nature of the risk. To this it was replied, that the direct voyage to Nantz was covered by the terms of the policy, and that the underwriter could not have been misled by the false clearance for Ostend, since it had been proved to be a notorious usage for vessels bound for Nantz to clear out for Ostend. The sufficiency of the reply was affirmed by the judgment of the court.

This decision, it is evident, only proves that the use of colorable papers, when sanctioned by a known usage of

trade, never discharges the underwriter, but that his assent to their use will be implied from his knowledge of the usage. The case contains no mention whatever of any representation made by the assured or their agent in relation to "the course of the voyage," and certainly there was no representation that the real intention was that the vessel should go first to Ostend; nor is there a single word, in the opinion of Lord Mansfield, to justify even a surmise that had such a representation been proved, its falsity would not have been held to avoid the contract. Such a representation, instead of being nullified by the usage, would doubtless have been held to supersede it. It would have been evidence of an agreement that the usage was not to be followed.

NOTE XV.

In the remarks of Mr. Phillips, (1 Phillips, p. 297 & 8,) it is evidently implied that all usages of trade are obligatory upon the assured, and whether the assured can be released from this obligation, even by an express representation, is the question which he regards "as involved in difficulty and uncertainty." Now whether a usage is obligatory on the assured so as to render its observance a condition of the contract, depends entirely upon its character. Generally speaking, the effect of a usage is to increase the risks as they appear on the face of the policy; and hence the general object in proving its existence is not to prove a violation of duty by the assured, but to charge the insurer with a loss for which he would not otherwise be liable. It is manifest that the observance of such a usage is in no sense obligatory on the assured, since its non-observance can never be a ground of complaint to the insurer, to whom it is not an injury but an

actual benefit; nor can the omission to disclose an intention to violate it ever be regarded as a material concealment, since it is a concealment of facts favorable to the risks. When the effect of a usage is to diminish the risks of the policy, its observance is doubtless obligatory on the assured, but that by a proper disclosure and representation he may be released from this obligation, the case of Middlewood v. Blake, (1 Term, 158,) to which Mr. Phillips refers, if on such a question the authority of a decision can be requisite, clearly establishes. The insurance was on goods on a voyage from London to Jamaica. From a certain point on that voyage there are three tracks, either of which a vessel bound to Jamaica may take, and the usage was, to permit the captain, when he arrived at the dividing point, to exercise his own discretion in the selection of that which, according to existing circumstances, he might deem the most advantageous course. The assured, however, in this case, had given express instructions to the captain to take the most northern route, and the fact that such instructions had been given was not disclosed to the underwriters. This concealment was held by the court to be fatal to the policy. Lord Kenyon said, "When this policy was subscribed, it "inust be taken for granted that the defendant (the underwriter) knew what was the common course of the trade, "and expected that the most expedient voyage would be "pursued by the captain acting on the emergency of the "occasion, but in fact that discretion of the captain was "taken away. That was a most important fact, and "ought to have been communicated to the underwriters ;" and the other judges concurred exactly on the same grounds. As the concealment, therefore, of the instructions, was the sole cause for denying to the assured a new trial, I regard the judgment of the court as an express decision that had the instructions been communicated, in

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