because they originated from wager policies, which are now prohibited by law. But as the cafe of Pole v. Fitzgerald was one of those, in which the majority of the judges, and the House of Lords held, that though the ship might be deemed loft, for a time; yet as she was afterwards recovered, the event of a total lofs had not finally happened, according to the construction of the wager; and as it has frequently occurred in the courfe of our enquiries, it may be proper to give a fhort account of it in this place.

Parl. Cafes

It was an action on a policy of infurance on Fitzgerald v. the fhip Goodfellow, privateer, at and from Ja- Pole. maica, to any ports and places where and whatfo- 5 Brown's ever, at fea or fhore, a cruifing from place to 131. place, for and during the term and space of four calendar months; the fhip was valued at 1000l. without further account, and free from average. The defendant in 1744, had subscribed 100%. and the plaintiff declared for a total lofs of the voyage by a mutiny of the men.

The cause came on to be tried at Guildhall before the Lord Chief Juftice Lee, when a fpecial verdict was found, ftating, That the defendant had fubfcribed the policy, stated in the declaration: that the Goodfellow was an English privateer, duly commiffioned; was fafe at Jamaica on the 14th of June 1744, and failed from thence the fame day: that on the 10th of July 1744, fhe took a French prize of the value of 4200/. fterling that afterwards the faid fhip was failing on her cruise, for a port or place called the River of Dogs, to fetch water; and while fhe was fo failing towards the River of Dogs, and within the four months mentioned in the policy, the crew mutinied against the captain and his officers; and by force carried the faid fhip against the will of the captain and officers, who could not refift, to Jamaica: and before her arrival there, caufelefsly, against the consent of the faid captain, feized the boat, fire-arms and cutlaffes, carried off the fame,

and deferted the privateer, by which the voyage and cruise were totally prevented and loft for the remainder of the four months: that the hip arrived at Jamaica, and was there in good fafety at and after the end of the four months; but was prevented by the mutiny and desertion, from further pursuing her cruife: that the perfon infured had intereft in the fhip to the amount of the fum infured.

This cafe was argued in the King's Bench, and judgment was given for the plaintiff. Upon a writ of error, the Court of Exchequer Chamber unanimously reverfed that judgment. The House of Lords afterwards confirmed the judgment of reverfal, being of opinion, with the majority of the judges, that the infurer being, by the terms of the policy, free from all average, the plaintiff could not be entitled to recover, but in cafe of a total lofs; and the fhip being found, by the fpecial verdict, to be in good fafety, at her proper port, at and after the end of the four months, for which the infurance was made, there could be no lofs. The counfel for the plaintiff cited many cafes, in which the plaintiffs had judgment for a total lofs, although the fhips remained in being; moft of which have already been referred to in 2 Burr.1200. the chapter upon capture. But thofe cafes were abfolutely denied by the other fide; or, if admitted at all, it was infifted, that they made for the defendant. This circumftance, among many others, stated in the introduction of this work, ferves to evince the great fuperiority which the modern practice of our courts, in matters of infurance, has over the ancient.

Vide ante

c. 4. p. 81.

See the Introduction fub fine.

Ord. of Lew.

14. tit. Infurance. art. 48.

In many of the maritime countries on the continent of Europe, the time, within which the abandonment must be made, is fixed by pofitive regu lation. Thus in France, it is ordained, that all ceffions or abandonments, as well as all demands in virtue of the policy, fhall be made as follows: In fix weeks, for loffes happening on the coafts of

I

the

the country, where the infurance was made: in
three months, in other provinces of our king-
dom in four months, on the coaft of Holland,
Flanders, and England: in a year, in Spain, Italy,
Portugal, Barbary, Mufcory, Norway and in two
years, for the coafts of America, the Brafils,
Gumea, and other diftant countries. When these
terms are elapfed, the demands of the affured
fhall not afterwards be admitted. In cafes of de-
tention, the fame ordinance provides, that the
abandonment fhall not be made before fix months, Art. 49.
if it happen in Europe or Barbary. If in a more
diftant country, in a year; both to commente
from the day of the notifying this detention to the

infurers. A fimilar regulation to that laft men- 2 Mag. 416, tioned is to be found in the ordinances of Bilboa.

In the law of England, we have no limitation of time, with respect to abandonment, at least that I have been able to find; and I believe, that none such exists. Indeed, from what has been faid in the preceding part of this chapter, it would appear, that the infured has a right to call upon the underwriter for a total lofs, and of course, to abandon, as foon as he hears of fuch a calamity having happened, his claim to an indemnity not being at all fufpended by the chance of a future recovery of part of the property loft: because, by the abandonment, that chance devolves upon the underwriter; by which means, the intention of the contracting parties is fully answered, and complete juftice is done.

We have thus taken a view, in this and the eight preceding chapters, of the nature of that inftrument by which the contract of infurance is effected; and of the different modes, by which

it

may be conftrued: we have treated of the various loffes, to which the underwriter fubjects himfelf by that contract; we have fhewn, when the loffes are to be confidered as partial, when as total; and in what cafes, and under what circumstances,

cumftances, the infured fhall be allowed to abandon to the underwriter. The courfe of our enquiry now naturally leads us to obferve, in what inftances the infurer is difcharged from any refponfibility; either on account of the contract being void, from its commencement, by reafon of fome radical defect; or becaufe the infured has failed to perform fome of thofe conditions, neceffary to be fulfilled on his part, before he can call upon the infurer for an indemnity.

CHAPTER THE TENTH.

Of Fraud in Policies.

'N treating of thofe caufes, which make policies void from the beginning, or in other words, which abfolutely annul the contract, it will be proper in the firft place to confider, how far it will be affected by any degree of fraud. In every contract between man and man, openness and fincerity are indifpenfably neceffary to give it it's due operation; becaufe, fraud and cunning once introduced, fufpicion foon follows, and all confidence and good faith are at an end. No contract can be good, unless it be equal; that is, neither fide must have an advantage by any means, of which the other is not aware. This being admitted of contracts in general, it holds with double force in thofe of infurance; because the underwriter computes his rifk entirely from the account given by the perfon infured, and therefore it is abfolutely neceffary to the juftice and validity of the contract, that this account be exact and complete. Accordingly, the learned judges

2 Black.

judges of our courts of law, feeling that the very Com. 460. effence of infurance confifts in a rigid attention Grot. de jure to the pureft good faith, and the ftricteft inte- belli, lib. 2. grity, have conftantly held, that it is vacated c. 12. f. 23. and annulled by any the leaft fhadow of fraud or Puffendorff de jure nat. undue concealment.

26.

1. 5. c. 9. 1 3. After what has been faid, it will hardly be ne- Bynkerhoek ceffary to mention, that both parties, the infurer queft. jur. and infured, are equally bound to difclofe cir- priv. 1. 4. c. cumstances, that are within their knowledge; Ord. de Lew. and therefore if the infurer, at the time he un- 14. f. 38. derwrites, can be proved to have known that the Black. 594. fhip was fafe arrived, the contract will be equally 3 Burr.1909. void, as if the infured had concealed from him. fome accident, which had befallen the hip.

In perufing the numerous cafes and decifions, which, I am forry to fay, are to be found in our books under this head, it occurred to me, that they were liable to a threefold divifion: ift, The allegation of any circumstances, as facts, to the underwriter, which the perfon infured knows to be falfe: 2dly, The fuppreffion of any circumftances, which the infured knows to exift; and which, if known to the underwriter, might prevent him from undertaking the rifk at all, or if he did, might entitle him to demand a larger premium and, laftly, a mifreprefentation. The laft of thefe, a misreprefentation, feems to fall under the first head, the allegatio falfi; and fo in fome measure it does; becaufe wherever a perfon knowingly and wilfully mifreprefents any thing, he afferts a falfhood. But it was thought Dougl. 247. neceffary to make a divifion for itself; because if a material fact be mifreprefented, though by miftake, the contract is void, as much as if there had been actual fraud: for the underwriter has computed his rifk upon information, which was falfe. Of each of thefe in order.

Nothing can be fo clear a proof of fraud, as the affertion of the truth of fome circumftance, which the perfon afferting it must know to be falfe. In our reporters, we do not meet with fo