branch of the subject, and they have been implicitly adopted in all succeeding cases. The special facts upon which the contingent chance is to be computed, usually lie in the knowledge of the insured only, and the underwriter trusts to his representation, and proceeds upon the confidence that he does not withhold any facts material to the estimate of the risk. The suppression of any such facts, whether by design, or mistake, or negligence, equally renders the policy void, for the risk run becomes different from the one assumed in the policy. The law requires uberrima fides in the formation of the contract, and yet either party may be innocently silent, as to grounds open to both, for the exercise of their judgment. The underwriter need not be told general topics of speculation and intelligence. He is bound to know every cause which may occasion natural or political perils. Men argue differently from natural phenomena and political appearances, and when the means of information and judging are open to both parties, each acts from his own skill and judgment. The question in those cases always is, whether there was, under all the circumstances, a fair representation or a concealment; if the misrepresentation or concealment was designed, whether it was fraudulent; and if not designed, whether it varied materially the object of the policy, and changed the risk understood to be run. If the misrepresentation was by fraudulent design, it avoids the policy, without staying to inquire into its materiality; and if it was caused by mistake or oversight, it does not affect the policy, unless it was material, and not true in substance; and in that case it will vitiate the Shirley v. Wilkinson, ibid. 293, n. Bridges v. Hunter, 1 Maule & Seiw. 15. 1 Marshall on Insurance, 450. Carpenter v. American Ins. Company, 1 Story's C. C. Rep. 57; and see Duer's Lecture on Representations, 45-47. 72, 73, where the subject is discussed with great clearness and force. policy without assuming the ground of fraud, for it is not the contract the party undertook to make. If the representation of the property insured greatly overrate the value, it will avoid the policy, whether the misrepresentation be through ignorance or design.a *If the information be stated as mere opinion, *284 expectation or belief, it does not affect the policy, provided it was given in good faith; for the underwriter, in such a case, takes the risk upon himself. Any such declaration of expectation or belief, if made with a fraudulent intent, avoids the policy.b ⚫ Catron v. Tenn. Ins. Co. 6 Humphrey R. 176. Marshall, in his Law of Insurance, 479, questions, very strongly, the propriety of the decision in Carter v. Boehm, from which I have chiefly drawn the above principles. But whatever may be the opinion as to the application in that case of the doctrines stated, there is no question as to their solidity independent of the case, and they were confirmed by Lord Ellenborough, in 4 East's Rep. 596, and recently by the Supreme Court of the United States, in M'Lanahan v. The Universal Ins. Company, 1 Peters' Rep. 170. See, also, Flinn v. Tobin, 1 Moody & Malkin, 367. S. P. A positive representation may be proved by evidence, provided the terms of the representation do not plainly contradict, or are not directly repugnant to the terms of the policy, and it becomes, in many cases, when proved, like a usage, a part of contract. It is also understood, that a representation may supersede an implied warranty, or a usage, if it be a representation of facts inconsistent with the usage, or the truth or obligation of the warranty. Duer's Lecture on Repre. sentations, 54. 61. 63, 64. 173, 174. b Lord Mansfield, Cowp. Rep. 788. Barber v. Fletcher, Doug. Rep. 305. Oct. 19180 Hill's N. V. Rep. 330, it is declared, that a representation to the insurer im A ports an affirmation of some past or existing fact material to the risk, and A representation to the first underwriter, in favour of the risk, extends to all subsequent underwriters, and on the ground that they subscribed upon their confidence in his judgment and knowledge of the risk, and are, therefore, entitled to avail themselves of all the conditions upon which he subscribed. This rule has not been favourably received by later judges, and it is strictly confined to representations made to the first underwriter, and not to intermediate ones. Nor does it extend to a subsequent underwriter on a different policy, though on the same vessel, and against the same risks.c Whether the knowledge or information was material for the insurer to know, and necessary to be communicated to him when the contract is made, is a question of fact for a jury, and they are to judge of the materiality of the information, under a consideration of all the circumstances that belong to the case.d This point was fully considered, and with a review of the *285 ground of principle and authority, and questions its accuracy. He insists, that a positive promissory representation that the specified event will happen, or an act be performed, is clearly deducible from the cases, and sustained by an irresistible weight of authority. Duer's 7th Lecture on the Law of Rep. resentations in Marine Insurance, 52, and note 9, pp. 139–156. New-York, 1844. Barber v. Fletcher, supra. Stackpole v. Simon, Park on Insurance, 582, 6th edit. Robertson v. Majoribanks, 2 Starkie's N. P. 503. Duer's Lecture on Representations, 65–69. Brine v. Featherstone, 4 Taunt. Rep. 869. Lord Ellenborough, Forrester v. Pigou, 1 Maule & Selw. 9. Bell v. Carstairs, 2 Campb. Rep. 543. ⚫ Elting v. Scott, 2 Johns. Rep. 157. d It is an unsettled question in the English and American law of insufance, whether the opinions of witnesses of experience and skill, such as insurers, insurance brokers and merchants, are admissible in evidence to guide the decision of the jury as to the materiality of a representation. It appears to me that the weight of authority, and the manifest reason of the thing, are in favour of the admission of such evidence. The authorities are collected by Mr. Duer, in note 19 to his Lecture on Representations, with his approbation of the admission of such evidence, on the sound maxim that cuique in sua arte credendum est. See Holroyd, J., in Berthon v. Longham, English and American authorities, in the case of the New-York Firemen's Insurance Company v. Walden;" and that doctrine has since received the unqualified sanction of the Supreme Court of the United States.b The books abound with cases relative to the much litigated question, as to what are, and what are not, necessary disclosures, and it is not consistent with my purpose to do more than bring into notice the leading principles which govern this very practical branch of the law of insurance. It is the duty of the insured to communicate every species of intelligence which he possesses which may affect the mind of the insurer, either as to the point whether he will insure at all, or as to the rate of premium. The decisions, in some of the old cases, contain strict doctrines on the subject of concealment, which have never been shaken; and the modern cases are equally sound and exact in their requisitions.d But the insured is not bound to communicate loose rumors, 2 Starkie, 229. Littledale v. Dixon, 4 B. & Puller, 151.. Haywood v. Rogers, 4 East, 590. Lord Tenterden, in Richards v. Murdock, 10 B. & Cressw. 527. Tindal, Ch. J., in Chapman v. Walton, 10 Bingham, 57. Story, J., in M'Lanahan v. Universal Ins. Co., 1 Peters' U. S. Rep. 188, for the admission; and Lord Mansfield, in Carter v. Boehm, 3 Burr. 1905. Gibbs, Ch. J., in Durell v. Bederly, 1 Holt's N. P. R. 283. Lord Denman, in Campbell v. Richards, 5 B. & Adolph. 840. Sutherland, J., in Jefferson Ins. Co. v. Cotheal, 7 Wendell, 72, against the admission of such proof. 12 Johns. Rep. 513. Seaman v. Fonereau, Str. 1183. M'Lanahan v. Universal Ins. Company, 1 Peters' Rep. 170. • Dacosta v. Scandrett, 2 P. Wms. 170. Lynch v. Hamilton, 3 Taunt. Rep. 37. ibid. Richards v. Murdock, 1 Lloyd & Welsby, 132. 10 Barnw. & Cress. 527. S. C. In this last case, orders to an agent to wait thirty days after the receipt of the order, before he insures, to give every chance for the arrival of the vessel, were deemed material, and the fact of the delay ought to have been disclosed to the insurer. In the subsequent case of Richards v. Campbell, in 1832, the agent was held responsible for his great ignorance in not knowing the necessity of the disclosure, and in not making it. nor any facts which the underwriter may be presumed to know equally with himself. General news stated in the newspapers and open to all, need not be stated, unless there be something known to the assured, and applying peculiarly to his case, or unless he has particular information not in possession of the public, and then the withholding of it is material. The underwriters are presumed to have the ordinary marine intelligence appearing in the gazettes, or when they are fairly put upon inquiry." The insured is not bound to disclose all by-gone calamities, or produce his portfolio of letters; and he need only disclose the material facts known to him at the date of the last intelligence. The under*286 writer is bound to know the nature and general course of the trade and of the voyage, and he assumes that kind of knowledge at his peril. The general rule is, that all facts material to the risk, and known to the one party and not to the other, must be disclosed when the policy is to be effected; and they must be fully and fairly disclosed.e But if the subject on which disclosures would otherwise be requisite, be covered by a warranty, either express or • Lynch v. Dunsford, 14 East's Rep. 494. Moses v. Delaware Ins. Company, Wharton's Dig. 310. pl. 18. b Greene v. Merchants' Ins. Company, 10 Pick. Rep. 402. Alsop v. Commercial Ins. Company, reported in 2 Phillips on Insurance, 85, 1st edit. • Freeland v. Glover, 6 Esp. N. P. Rep. 14. 7 East's Rep. 457. S. C. Kemble v. Bowne, 1 Caines' Rep. 75. Vallance v. Dewar, 1 Campb. N. P. Rep. 503. Planche v. Fletcher, Doug. Rep. 251. Galbraith v. Gracie, 1 Condy's Marshall, 388. a. note. Delonguemere v. N. Y. Firemen's Ins. Company, 10 Johns. Rep. 120. Kingston v. Knibbs, 1 Campb. N. P. Rep. 508, note. Vallance v. Dewar, ibid. 503. Stewart v. Bell, 5 Barnw. & Ald. 238. Seton v. Low, 1 Johns. Cas. 1. e Ely v. Hallett, 2 Caines' Rep. 57. Kohne v Ins. Company N. America, 6 Binney's Rep. 219. Hoyt v. Gilman, 8 Mass. Rep. 336. |