(Hughes on Ins, p. 351,) that a foreign sentence is not evidence to disprove a representation, but in the very words of the court, because "the refusal to warrant showed the "intention of the assured to exclude the representation "from the contract;" a distinct admission that had the representation not been superseded by the refusal to warrant it would have been a "part of the contract."

Von Tungeln v. Dubois, (2 Camp. 151.) In this case the decision of Lord Ellenborough at nisi prius seems to have been founded on the distinction, as to the effect of a foreign sentence, to which Mr. Hughes refers, but which was not adverted to in Nonnen v. Kettlewell. The vessel insured was not described in the policy as belonging to any particular country, but in the instructions to the broker, which were shown to the underwriters, it was stated that she was a Kniphausen vessel. She in fact belonged to Varrel, a port in the Kniphausen territory, and it was proved was properly documented and navigated according to the laws of that territory. In the prosecution of her voyage she was captured by the French, and afterwards condemned by a prize court, on several grounds, as having violated the laws of neutrality. The counsel for the defendant contended that the sentence of condemnation, as disproving the neutrality of the vessel, was a complete bar to the plaintiff's recovery, and cited several cases to show that upon the question of neutral character, evidence of a foreign sentence is conclusive. In overruling the defence, Lord Ellenborough remarked, that in the cases relied on, there was an express warranty of neutrality, but that here, "the letter and instructions directing the insurance to be "made, amounted to no more than a representation that "the vessel was a Kniphausen vessel, and consequently "neutral property; and therefore if she was in reality "documented and navigated according to the laws of the "state to which she belonged, the sentence of a foreign

"court would not invalidate the policy, although had there "been a warranty of neutrality, the sentence might have "been conclusive." It is stated by the reporter, that the counsel for the defendant acquiesced in this decision.

The reasons of this decision, it must be confessed, are not very apparent, but certainly its true ground could not have been that which Mr. Hughes has assigned, namely; that it is sufficient, if a representation be substantially true at the time it is made. (Hughes on Ins. p. 351.) A doctrine that would reduce all valid representations to those that relate to existing facts. The remark of Mr. Hughes implies that the foreign sentence did not relate to the national character of the vessel when the policy was effected, but was founded solely on her subsequent acts; but such was not the case. Had the representation been considered as affirming the neutrality of the vessel, the foreign sentence, if received in evidence, would have shown it not to have been true when made, for one of the grounds of condemnation was, that the vessel had originally been enemy's property, and had never acquired a neutral character. Nor did Lord Ellenborough deem it sufficient to be shown, that the representation, construed as affirming only the national character of the vessel, was true when made, for he held it necessary to be proved, not only that the vessel was then a Kniphausen vessel, but that she was documented and navigated as such on the voyage insured. Hence, if the vessel, after the policy was effected, and in the subsequent prosecution of her voyage, had forfeited her national character by a violation of the laws of the state to which she belonged, the falsity of the representation, although true when made, would have discharged the underwriter. The language of Lord Ellenborough admits of no other interpretation than that he considered the representation as material and binding, not merely as affirmative, but as promissory.

The probable grounds of the decision were, that there was no positive representation of the neutrality of the vessel, but merely of her national character, so that her neutrality was a matter of inference only, not of stipulation; and therefore the truth of the representation, in the opinion of Lord Ellenborough, depended solely on the laws of the state to which the vessel was represented to belong, and thus established, could not be disproved by the sentence of a foreign court. The questions of national character and of neutrality, were in his judgment distinct and independent, and it was to the latter alone that the sentence related. Thus, interpreted, the case, if justly decided, still establishes a very material distinction between the construction of a representation and of a warranty of national character, since the latter, it is well settled, is the same as a warranty of neutrality, when the state or nation to which the vessel is warranted to belong, is in fact, neutral. The decision is therefore, directly opposed to that of the Supreme Court of New-York in Vandenheuvel v. The United Ins. Co. (Sup. p. 115,) and the Same v. Church, (Sup. p. 116,) nor does it seem easy to be reconciled with that of the Common Pleas in England, in Steel v. Lacy, (3 Taunt. 285, Sup. p. 119.)

Driscol v. Passmore, (1 Bos. & Pull. 200.) This is a very important case, as showing the circumstances by which the non-compliance with a promissory representation may be excused, and illustrating and confirming the doctrine stated in the text. (Lec. Sup. p. 84-89.) The insurance was on the freight of a vessel at and from Saffi, on the coast of Africa, to Lisbon. The policy was effected upon a representation that the vessel had arrived at Madeira, and would proceed from that island to Saffi, and thence on the voyage insured; and this representation it was allowed was material, as showing the period when the risks would probably commence. The representation was so far true

ers.

that the vessel had in fact arrived at Madeira, but her crew being alarmed by reports that there were enemies' cruisers off the coast of Saffi, refused to proceed to that port, so that the captain was under the necessity of returning to Lisbon, his home port, for instructions from his ownFrom Lisbon the vessel proceeded to, and arrived at Saffi, there took on board the return cargo, from which the freight insured was to arise, and was lost on her return voyage to Lisbon. It was insisted by the counsel for the underwriters, that the policy had never attached, inasmuch as the vessel had not sailed directly from Madeira to Saffi, so that the voyage on which the vessel was lost, although a voyage from Saffi to Lisbon, did not correspond with the voyage as represented. This defence was however overruled by the court, not on the ground that the representation was not material and binding, but that the voyage was covered by the policy, and that the deviation from the terms of the representation was justified by necessity. Mr. J. Heath remarking, "This is like all other cases of devia"tion justified by particular circumstances." Lord C. J. Eyre, in the course of his opinion, after stating that the representation was really true when made, made these pregnant observations, that when an "insurance is made "on a representation which is true at the time, it is diffi"cult to state a case where subsequent events not happening through misconduct, and not totally disappointing the voyage, will discharge the insurer." The misconduct here meant, is evidently that of the assured and his agents, and the doctrine implied, corresponds with that advanced in the text, (Sup. p. 86,) that a promissory representation is limited to the acts of the assured and his agents. The words of his lordship are also a plain admission that had the captain, in the case before him, returned to Lisbon without any justifiable cause, the falsity of the representa

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tion proceeding from his misconduct, would have discharged the insurer.

This case is cited by Mr. Hughes, (Hughes, 348,) as one in which the representation related only to the "expectation" or "belief" of the assured, and therefore, there being no fraud, was considered to be immaterial. But neither in the facts of the case nor in the language of the court, is there any thing to justify this construction. The representation was positive, and was made in behalf of the owners of the vessel, who had the power to direct the course of the voyage, and the court, far from considering the non-compliance with its terms as immaterial, took pains to explain the necessity by which alone it was justified. That this was the true and sole ground of the decision is also rendered evident by the decision of the same court in the subsequent case of Driscol v. Bovil, (1 Bos. & Pull. 313,) where the voyage from Madeira to Saffi was a part of the voyage insured, and described as such in the policy, and the same circumstances that had before been held to excuse the non-compliance with the representation, were held to justify the departure from the express words of the policy. The ground, therefore, of the decision in the first case, could not have been that the representation, from its nature, was unnecessary to be complied with, for to the second, this reason was wholly inapplicable, and in this, Rooke, J., expressly says, that the two cases are not distinguishable.

The cases of Von Tungeln v. Dubois, and Driscol v. Passmore, are to be added to the number of those in which the validity of a prospective representation, as promissory, has been established or admitted; and Nonnen v. Kettlewell is to be classed with those in which the representation of an existing or past fact operates as an agreement, and as such, is as truly a part of the entire contract, as if it were in