authorities in support of this opinion, which seems rather to have been founded on some provisions in the local ordinance of Hamburgh, than to have been drawn from the general law of insurance. (Ordinance of Hamburgh, Tit. 4, Art. 6, 2 Mag. 215.)

NOTE XXV.

Tidmarsh v. Wash. F. & M. Ins. Co., (4 Mason, 439.) Mr. J. Story says, "when a letter" (i. e. a letter shown to the underwriters,)" contains a representation of facts not "known to the party, but from the information of others, "and so the letter states the facts, or it is a necessary infer"ence from the nature of them, then the representation is not "falsified by the mere proof, that the facts are not so, if the "party communicating the facts did receive such in"formation, and bona fide confided in it. He undertakes "then, not for the truth of the facts, but for the truth of his "information." The position contained in the words italicized is to be received with some qualification. It has already been shown that when the representation is positive in its terms, its construction is not varied even by the knowledge of the underwriter that the facts affirmed were derived from the information of others. (Vide Supra, Note IX.) When the representation relates to a future event which the party has no power to control, it may be construed as referring merely to his expectation founded on the information of others, but when it is an affirmation of an existing or past fact, I know of no case in which it has been held not to be binding merely upon the ground that it was evident from the nature of the fact, that the party had no personal knowledge of its existence.

In Williams v. Delafield, (2 N. Y. T. Rep., 329,) the representation made by the plaintiff was in these words, "I

have information of the vessel's sailing, and she has been out this day twenty-six days." It was insisted, by the counsel for the defendant, that the assertion that the vessel had been out twenty-six days, was distinct and positive, and as she was proved to have been out twenty-seven days, that the variance was material, and avoided the policy. But the court said that without expressing an opinion whether a misrepresentation even of one day in the time of sailing might not be material, they were clearly of opinion that the representation was to be construed throughout as referring to the information received, and that in good sense and in grammatical construction, the information was just as applicable to the time the vessel had been out, as to her actual sailing. (a) As there was no pretence of fraud, or that the representation did not state correctly the purport of the information, the defendant's motion for a new trial was denied.

NOTE XXVI.

Fitzherbert v. Mather, (1 T. R. 12,) I adopt Mr. Marshall's abstract of the facts;

"A policy on a cargo of oats was effected on the 21st "of September, at and from Hartland to Portsmouth, lost or "not lost, beginning the adventure from the loading at "Hartland. The oats were shipped by R. Thomas, a "corn-factor at Hartland, on the 16th of September, and the ship was lost the same day, off Hartland pier. On that "day Thomas wrote to the plaintiff's agent at Portsmouth,

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(a) The language of the report is, that the information was "just as applicable to her sailing, as to the time she had been out," but the transposition is necessary to make the decision intelligible. The error is doubtless that of the reporter.

205 "and informed him that he had that morning shipped the "oats, and the ship sailed immediately, but he was afraid "the wind was coming to the westward, and would force "her back. He also wrote, on the same day, to Fisher, "the plaintiff's agent in London, to the same effect, in "order that he might insure, adding these words, ‘I wish "the whole safe to hand. This evening appears stormy.' "About six or seven o'clock the same evening, Thomas “heard that the ship was on shore, and at six o'clock the "next morning (the 17th of September,) he knew she was "lost. The 16th was not a post day at Hartland, and the "letters did not go from thence till noon on the 17th, and "were received in London on the 20th. Fisher, having "been previously directed by the plaintiff to insure this 66 cargo as soon as the bill should be sent him, he directed "the insurance to be effected, which was done on the 21st. Upon this case the court gave judgment for the defend"ant." (1 Marsh. 457.)

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In the case of Ruggles v. Gen. Ins. Co. (4 Mason, 75,) Mr. J. Story, in commenting on this case, says, that the misrepresentation arose from the act of the plaintiff's agent "connected with the making of the insurance." It is, however, clear, upon an examination of the case, that the consignor who wrote the letter that was adjudged to be a virtual misrepresentation, had no authority to procure or effect the insurance, nor was he connected with it in any other manner than from the fact that the information contained in his letter was made the foundation of the policy. He doubtless wrote the letter with the view of communicating such information to his principal as might enable him, if he thought proper, to insure; but to give such information is the general duty of all consignors, and it is equally the duty of the master, and this the learned judge expressly admits. In respect to the nature of the agency, there would seem to be a perfect analogy between

the cases of the consignor and the master. Neither as such has authority to make or direct an insurance, but it is the duty of both to communicate such intelligence as may be necessary to guide the judgment of his principal, and hence, in both cases, if the principal in effecting insurance make that intelligence the basis of the contract, he becomes responsible for its truth. The language of all the judges in Fitzherbert v. Mather, interpreted by the facts of the case, seems to place it beyond reasonable doubt that the true ground of the decision was not that Thomas (the consignor) was an agent of the plaintiff in procuring the insurance, but his agent in giving the intelligence. Thus Lord Mansfield says: "The policy was effected by mis"representation, and that arose from the proper agent of "the plaintiff who gave the intelligence;" and again: "How "did this misrepresentation happen? The agent wrote "the letter." Willis, J.-" Thomas must be considered "as the agent of the plaintiff, for he shows by his first let"ter that he acted" (i. e. wrote the letter,)" by order of "the plaintiff as well as of Burdock, and being his agent, "the plaintiff must be liable for any misrepresentation of "Thomas. (a) Ashurst, J. "On general principles of policy, the act of the agent must bind the principal, be"cause it must be taken for granted that the principal "knows whatever the agent knows." That is applying the rule to the case. "It must be taken for granted that "the plaintiff knew of the loss which it was the duty of "the agent to communicate." Buller, J., is still more explicit. He says, "Though the plaintiff be innocent, "yet if he build his information on that of his agent,"

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(a) The words of the original are, "by the orders of Burdock as well as of the plaintiff;" but the reader will see, by consulting the report, that the terms of the letter, as well as the force of the argument, require the correction: it is also justified by Mr. Park's report. (Park, 280.)

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(which clearly means if he adopt the information of his agent, and by submitting it to the underwriters makes it the foundation of the contract,) " and his agent be guilty "of a misrepresentation, the principal must suffer. It is "the common question, every day, at Guildhall, when one "of two innocent parties must suffer by the fraud or negligence of a third, which of the two gave credit? Here "it appears that the plaintiff trusted Thomas, and he "must therefore take the consequences." In the case as reported by Durnford and East, (a) Lord Mansfield goes still further, and intimates very distinctly that even had Thomas not been the agent of the plaintiff, yet as he wrote the letter with a view to the insurance, which was effected on the information it contained, his misrepresentation would have avoided the policy. He says: "And supposing he," (Thomas,) "was not an agent, he gave information to "Fisher," (the London correspondent of the plaintiff who effected the policy,) "as well as to the plaintiff to make "the insurance." These words, however, are not found in the fuller and probably more accurate report of the case which is given by Mr. Park. (1 Park, 6 ed. 278.) They cannot, therefore, be regarded as authority, and the position which they imply has not yet been sanctioned by any adjudged case.

The case of Stewart v. Dunlop, (4 Brown's Cases, in Parl. Tom. ed. p. 483; Marsh. 469; Parke, 277,) is frequently referred to as analogous in principle to Fitzherbert v. Mather, and seems to have been the chief authority on which the counsel for the defendant in the latter case relied. The report of the case, however, leaves it exceedingly doubtful whether the ground of the decision was the fraud and virtual misrepresentation of the agent, or that of the principal himself, the owner of the vessel insured. Mr. J.

(a) 1 Term Rep. 12.