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Robertson v. Majoribanks, the plaintiff failed to recover, because he was unable to prove that certain material facts had been directly communicated to the defendant; their disclosure to a prior underwriter being held insufficient. (2 Stark. N. P. Rep. p. 505. Sup. p. 179.)

NOTE XXI.

Kemble v. Bowne, (1 N. Y. Term Rep 75. Sup. Note IV.) supports the first position stated in the text, and the second seems clearly to be established by Dennistoun v. Lillie, (3 Bligh, 202. Sup. Note IV.) In this case the reader will recollect the representation was, that the vessel would not sail before the 1st of May. She actually sailed on the 23d of April, but the loss did not happen until the 11th of May. It seems to have been admitted by the counsel for the assured, in the court below, that if the loss had occurred before the 1st of May, the insurer would not have been liable, because until then the policy could not attach. (Vide 3 Bligh, p. 206. Reasons of the Judge Admiral.) And Lord Eldon, on the hearing of the appeal, remarked, "To main"tain the argument of the appellant," (the assured,) “it is

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necessary to contend that if the vessel had been captured "on the 24th of April, the underwriters would have been lia"ble," evidently considering that as a position wholly untenable.

In Massachusetts, if the case of Whitney v. Haven, (13 Mass. 172,) is to be followed, it seems to be established that a representation of a future day of sailing, is in all cases wholly immaterial, or at least is to be construed as expressing only the intentions or expectation of the party. It was proved in that case, that the plaintiff declared at the time of effecting the policy, that the vessel, (which did

not in fact sail until a month afterwards,) would sail within five days, and that the defendant, the underwriter, said at the same time, that he would not be bound if the vessel did not sail within the period stated, thus showing that his reliance on the representation alone induced him to subscribe the policy; yet the judge, on the trial, instructed the jury, that, "this being in the nature of a condition, which "went to defeat the contract, could not avail, not being in"serted in the policy, or otherwise put in writing," and the court in refusing a motion for a new trial, confirmed the charge, holding that parol evidence was not sufficient to give effect to the representation, and that if the defendant meant not to be bound, unless it were complied with, he should have made it a part of the written contract. It is manifest, that this case is liable precisely to the same objections that have already been urged in relation to those of Alston v. The Mechanics' Mutual Insurance Company, and Bryant v. The Ocean Insurance Company, and consequently, for the reasons already so fully stated, (Sup. No. 9,) is not to be regarded as authority beyond the limits of the state in which it was determined. It is not only irreconcileable with the English decisions, but seems to be directly opposed to a former decision of the same court in Alsop v. Coit, (Sup. p. 127,) in which the representation did relate to a future day of sailing, and yet a compliance with its terms was held to be a condition, the breach of which, had a policy been effected, would have discharged the underwriters. It is true the insurance in Whitney v. Haven, was on goods, and therefore, had the case turned solely on the representation made by the assured, (who it did not appear had any interest in the vessel,) the decision might readily be sustained; but as it was manifest from the declaration of the defendant, that he relied on the representation as a positive stipulation, and the plaintiff by his silence assented to that construction, upon principle, it was just as valid as a similar representation made by the owner of the vessel. It is

remarkable that not a single case was cited by the counsel on either side, or by the court. Hence the determination can hardly be considered as evidence of the deliberate judgment of the court. It was a very natural result of first impressions, not subjected to any examination.

NOTE XXII.

New-York Firemen's Ins. Co. v. Walden, in Error, (12 Johns. 513.) In this case certain letters showing improper conduct of the master had not been disclosed to the underwriters, and the court below withdrawing the question wholly from the jury, had decided that the contents of the letters were not material. The error of the judge who tried the cause, in thus giving a binding direction to the jury on a question of fact, as if it had been matter of law, was confirmed by the Supreme Court, and for this reason their judgment was reversed by the Court of Errors. The elaborate opinion of Chancellor Kent, who delivered the judgment of the court, contains a full review of the authorities, and supersedes the necessity of an abstract of the

cases.

"The counsel went at large into the discussion of the "questions, whether the assured were bound to communi"cate to the underwriters, as the time they applied for "insurance, the letters and other knowledge they possessed "of the improper conduct of the master; but it appears "to me that this question is not for the decision of this "court, because, whether the circumstances relative to the "master ought to have been disclosed, depends upon the "question, whether those circumstances were material to "the risk, and the materiality is a question of fact for a jury "and not a question of law for the court. It is a well-set"tled principle in the law of insurance, that what facts, in

"the knowledge of the assured, are material and necessary "to be communicated to the underwriter, when insurance is "asked for, is for a jury to determine, and I will briefly "notice a few cases in illustration of this point. My whole "opinion will rest upon the admission and the solidity of "this principle."

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"In Macdowall v. Fraser, (4 Doug. 260,) it was assumed by the K. B. as a given point, and it was said expressly by one of the judges, that the materiality of a certain representation to the underwriters was proper for the con"sideration of the jury; and in the case of Shirley v. Wil"kinson, which came before the same court, two years "afterwards. (Doug. 396, n.) Lord Mansfield, and the "rest of the court were of opinion, that if the assured, at "the time when the policy is effected, in representing to "the underwriters the state of the ship, and the last intelligence concerning her, does not disclose the whole, and "what he conceals shall appear material to the jury, they "ought to find for the underwriter, though the concealment "should have been innocent. The next case I shall men“tion, is that of Willes v. Glover. (4 B. & P., 14,) in which "the court of C. B. admit the same doctrine; and on the

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question whether the concealment of a certain letter was "material, the court held the verdict to be against evi"dence, and awarded a new trial, and they declared, that though great respect was due to the opinion of the ́jury, "still they thought their judgment on that point had been "too hastily formed, and that the case ought to be recon"sidered. In Lyttledale v. Dixon, (4 B. & P. 151,) the "same court, afterwards, unanimously, and very explicitly "declared their opinion, that every material circumstances "must be disclosed, but that it was for the jury to say, how "far any given circumstance was material."

"From these cases it appears that the principle which "I have stated as the ground of my opinion, is settled in

"the English courts, and I will now show that it is explicitly acknowledged in our American law."

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"In Livingston v. Delafield, (1 Johns. Rep. 522,) the su"preme court of this state declared, that whether certain "information which the assured knew and did not com"municate, became material, was a question of fact that "the jury were to decide; and the same doctrine had "been previously advanced by the most distinguished "counsel, (Hamilton and Harison,) and evidently acqui"esced in by the court, in a case which arose some years "before. (1 Caines' Rep. 229.) So in Murgatroyd v. "Crawford, (3 Dallas, 491,) in the Supreme Court of Pennsylvania, Ch. J. Shippen declared, that if, in the opinion "of the jury, a knowledge of the circumstances that were suppressed would have induced the insurer to demand "a higher premium, or to refuse altogether to underwrite, "it would be sufficient to invalidate the policy. Again, in "the case of Marshall v. Union Ins. Co., decided in the "Circuit Court of the United States for the district of "Pennsylvania, (1 Condy's Marshall, 473, b. n.) the court "left it pointedly to the jury to judge of the materiality of "circumstances not disclosed. And to conclude with the

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highest judicial authority in this country, the Supreme "Court of the United States has decided, on two different "occasions, Livingston v. Maryland Ins. Co., and Maryland "Ins. Co. v. Rudens, (6 Cranch, 274, 338,) that the opera"tion of any concealment on the policy, depends on its "materiality to the risk, and that this materiality was a "subject for the consideration of a jury, and must be left "to them. One of those cases was considerably analo"gous to the one now before us. It came up on error "founded on a bill of exceptions taken at the circuit, and "the court say that the effect of a misrepresentation or "concealment depends on its materiality to the risks; and "this must be decided by a jury, under the direction of

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