actual purport is not at all varied or modified by the portions omitted. They contain the true and sole grounds of the decision. What is omitted is only subsidiary argument and illustration.

The result is, that there is no such opposition on this subject between the decisions in England and the United States as Mr. Phillips supposes to exist, and that the Supreme Court of the United States, so far from having determined that the concealment or misrepresentation of material facts by the master, when the assured acts in good faith, can never avoid the policy, has given its authoritative sanction to the opposite and far more reasonable doctrine; that while the relation of principal and agent subsists between the owner and the master, it is the legal duty of the latter to communicate material facts, and that his fraud or neglect, in the discharge of this duty, may vitiate the contract.

Should a stranger, constituting himself a voluntary agent, convey false intelligence to a merchant with the view of enabling him to procure a favorable insurance, it is at least doubtful whether the submission of the letter by the merchant, as the foundation for a policy, would not be construed as an adoption of its contents so as to render him responsible for their truth. The language of Lord Mansfield in Fitzherbert v. Mather, as reported by Durnford and East, we have seen, favors this idea, and it seems also to be countenanced by some expressions in the opinion of Mr. J. Thompson. Hence the person procuring such an insurance, if unwilling to assume the responsibility for the representation of an intrusive agent, should protect himself against its hazard, by an express disclaimer. The fact, if not apparent on the face of the letter, that the writer was not an agent or regular correspondent of the assured, in all such cases should certainly be disclosed. Its concealment, most probably, would give to the letter the effect of a positive representation.

NOTE XXVII.

In Pawson v. Watson, (Cowper, 787,) Lord Mansfield is reported to have said, that if, in reference to a life policy, a person says, that "he believes the man to be in good "health, knowing nothing about it, and having no reason "to believe the contrary; there, though the person is not "in good health, it will not avoid the policy, because the "underwriter then takes the risk upon himself;" and these words seem to be the sole foundation of the common opinion that a mere declaration of belief, with whatever intent it is made, and whatever influence it may have had on the mind of the insurer, can never affect the policy. I apprehend, however, that the language of his lordship has been greatly misunderstood, and that he meant only to say that when a party merely declares his belief, he is not responsible for the absolute truth of the fact, so that its non-existence will be alone sufficient to avoid the policy; not that if the declaration be made with an actual intent to deceive, and in fact deceives the insurer, the fraud will not vitiate the contract. Comparing the words of his lordship with the immediate context, it seems evident that such was his meaning. The object of his remarks was to state the cases in which a representation false in fact, avoids the policy as a fraud, and he had just before said that when a party affirms a fact that he knows to be false, or does not know to be true, if the fact be otherwise, it is a fraud. He then adds, substantially, but such is not the case, when instead of affirming the fact he merely declares his belief of its existence; that is, the non-existence of the fact is not in the latter as in the former case, conclusive evidence of fraud. Upon any other construction, the doctrine of Lord Mansfield cannot now be regarded as law. It is plainly overruled by the numerous cases in which it has been decided or held

that the representation of an "expectation" or "intention," if fraudulently made, annuls the policy, for between these and a declaration of belief, it is impossible to state a reasonable distinction. It is true that such a declaration may in many cases amount to no more than the expression of a conjectural opinion, and this is equally true when the party declares his "expectation." Giving to the words of Lord Mansfield their usual interpretation, the observations in reply of Mr. Marshall, express the sentiments of a just morality, and seem not only judicious, but unanswerable. (1 Marsh. p. 455, note.)

The reader will recollect that in Bowden v. Vaughan, Dennistoun v. Lillie, Hubbard v. Glover, Stewart v. Morison, Rice v. New Eng. Ins. Co., and several other cases cited in the preceding notes, it has been decided that the representation of an "expectation," although not imposing the duty of performance, yet if fraudulently made, avoids the policy. Such, indeed, is now the uniform language of judges both in England and the United States. It is true, that in Barber v. Fletcher, (Doug. 305,) such a representation was held not to be material, but in that case there was no allegation of fraud, so that the decision imports no more than that the representation had not the force of a positive stipulation.

In the case of Clason v. Smith, (3 Wash. C. C. R. 157,) a representation, equivalent from its terms to a declaration of the belief of the assured, although fraudulently made, was held, under the circumstances, to be immaterial. The plaintiffs, who were merchants in New-York, wrote to their agent in Philadelphia, authorizing him to effect insurance at fifteen per cent. premium, and added, in the letter, "We have no doubt that we could get the insur"ance effected in New-York at that premium." This assertion was false, for it was proved on the trial that the different insurance companies in New-York had been ap

plied to, and had all refused to take the risk on any terms. The insurance was effected in Philadelphia, at a premium of twenty per cent. Mr. J. Washington, in giving his opinion to the jury as to the effect of the misrepresentation, states the general rules with admirable precision and brevity. "A misrepresentation to avoid a policy, must "not only be false, but it must be material either in rela"tion to the rate of premium, or as offering a false induce"ment to the underwriter to take the risk at all, when "otherwise perhaps he would not have done it. If in "point of fact it had no influence, nor ought to have had "any, in these respects, then, it was impossible to say that "it was material." He then proceeds to show, that upon two grounds the misrepresentation, although intentional, might properly be deemed immaterial. 1st. Because it was clear that it had no influence in affecting the rate of premium, since the underwriters, proceeding upon their own judgment, had demanded and received twenty instead of fifteen per cent.; and this circumstance was also conclusive to show that they knew the representation to be untrue, since if the plaintiffs could have effected insurance in New-York at fifteen per cent., they would never have agreed to pay twenty in Philadelphia. 2d. Because the underwriters ought not to have been influenced in any degree by such a representation, which asserted nothing, but merely expressed an opinion. The very terms used implying that nothing had been certainly ascertained as to the fact.

The propriety of this decision as resting on the first ground, that the underwriters were not in fact misled, cannot be doubted; but it is surely, at least, questionable, whether the strong words of the letter, "we have no doubt," might not fairly have been construed as implying that the plaintiffs, by inquiries which they deemed satisfactory, had ascertained that insurance could be effected in New-York

at the rate of premium which they mentioned, so that the underwriters would have been fully justified in drawing that conclusion from the letter. If the underwriters in Philadelphia, thus understanding the representation, and believing it to be true, had consented to insure at fifteen per cent. premium or less, it is difficult to believe that the fraud might not justly have been held to vitiate the contract; but although it is possible that for the suppression of fraud, the terms of the letter might have been differently construed, the principle of the decision is doubtless correct, that where a representation of belief amounts only to the expression of an opinion, and does not imply that the party speaks from knowledge or information, even its intentional falsity will not avoid the policy. The insurer, in such cases, if he omit to inquire into the grounds of the opinion, has no right to rely upon it as a basis of his contract. It is true that Mr. J. Washington, in a subsequent part of his opinion, goes much further, for he adds, that "the mere expression of an opinion, or an expectation, as "to a matter which might even imply that the party had "some ground, deemed by himself sufficient, on which to "build his opinion, would not amount to a misrepresenta"tion sufficiently material to avoid a policy, because it is "the folly of the other party not to inquire into the grounds "of the opinion." But I am unable to reconcile this language with that which it appears to me must be regarded as the settled law as to the effect of a fraudulent misrepresentation, where the party has stated only his "expectation" as to a material fact or event. In none of the decisions on this subject is it intimated that the underwriter, in order to avail himself of the defence of fraud, must show that he had inquired into the grounds of the "expectation." On the contrary, the fraud that is held to vitiate the contract is the intentional falsity of the representation itself, not a false statement of the reasons on which it was found