and Jeremiah Leeds, of Richmond, in the other it was averred to be the property of Leeds alone. The defendants, after oyer, pleaded eight pleas. Upon the three first there were issues in fact. The 4th plea, in substance, was, that the vessel, at the time of the capture and sale was the property of the enemies of Great Britain, and as such was captured, libeled, condemned and sold. That Richmond was the capital town of the state of Virginia, a neutral state. That Straas and Leeds were of Richmond, and citi101*] zens of Virginia, and were *known to be so to the parties to the policy at the time of insurance. That the insurance was made by the contracting parties upon the property of American citizens in which no belligerent subject or citizen was interested; and that at the time of insurance, capture, condemnation and sale of the vessel, there was open war between France and Great Britain. To this plea there was a demurrer, and the following causes were stated: 1. Because the plea alleges that the vessel was the property of the enemies of Great Britain, but does not show in particular who were the owners thereof. 2. Because the plea is double in this, 1st. That it tenders an issue upon the fact of its being enemies' property; 2d. That it was condemned as such; 3d. That the insurance was made upon the property of American citizens. 3. Because it alleges that the insurance was made upon the property of American citizens, which is matter of law, and not of fact. 4. Because, as the policy contained no warranty of neutrality, it is wholly immaterial whether the property was neutral or belligerent. 5. Because the plea is no answer to the plaintiff's declaration. 6. Because it admits Straas and Leeds to be owners of the property insured, and to be American citizens, and it does not state any other person or persons to be the owners thereof. 7. Because the defendants were estopped by the policy from alleging that the insurance was made upon the property of American citizens. 102*] *The 5th plea, in substance, was, that it has always been, and is the rule and practice of the defendants, never to make an insurance upon a vessel beyond her reasonable and just value according to the representation and description given of her, especially as to her age, tonnage and equipment, which rule and practice were well known to the contracting parties at the time of the contract, at which time the plaintiff proposed to the defendants that the value of the vessel should be agreed in the policy to be ten thousand dollars; and that at the time of executing the policy, the plaintiff, to induce the defendants to execute it, thereby insuring to the value of 8,000 dollars upon the vessel, represented that she was "about 250 tons burthen," "and from six to seven years old." That the defendants, in consequence of that representation, and placing full faith and credit therein, executed the policy. That the representation was untrue in this, that the vessel was not of two hundred and fifty tons burthen, but less than one hundred and sixtyfive tons burthen, and was not from six to seven 3 L. ed. U. S., Book 3. years old at the time of the representation, but much older, viz., more than eight and a half years old. That the vessel was not of the value of eight thousand dollars, but of the value of 3,000 dollars only. That the misrepresentation respecting the age and tonnage of the vessel induced the defendants to execute the policy, whereby the value was agreed to be ten thousand dollars, and whereby insurance was made to the amount of 8,000 dollars; "and so the said deed is void as to them; and this they are ready to verify." To this plea also there was a demurrer, and the following causes were stated: 1. Because the plea does not aver the misrepresentation to be material. 2. Because it is not alleged to have been fraudulently made. 3. Because the matter of the plea is not sufficient to annul or make void the policy. *4. Because the misrepresentation al- [*103 leged is not of a definite fact; but that the vessel was of about 250 tons burthen, etc. 5. Because the plea is double in this, that it puts in issue the custom of the defendants, the representation touching the vessel, the age, the tonnage and the value of the vessel. 6. Because the defendants are estopped by the policy from averring that the vessel was of less value than 10,000 dollars. The 6th plea was like the 5th, except that the averment respecting the rule and practice of the defendants was omitted, and that it contained an averment that the difference between the true and the represented age and tonnage of the vessel "was material in regard to the contract of insurance," in the policy set forth; and so the policy was void as to them. To this plea the plaintiff, protesting that the vessel was seaworthy, and that he did not knowingly and fraudulently state any misrepresentation, and admitting that the vessel was of less than 165 tons burthen, and was eight and a half years old, replied, that the difference between the true and the represented age and tonnage of the vessel, was not material in regard to the seaworthiness of the vessel, and her ability to perform the voyage insured, and did not increase the probability of loss by means of any of the risks insured against, but was altogether immaterial in regard to those risks. The rejoinder of the defendants set forth their rule and practice as stated in the 5th plea; and averred that the misrepresentation induced and deceived the defendants into the agreement as to the value of the vessel, and as to the sum insured, and that the sum insured was more than double the value of the vessel, and so the defendants say that the difference between the true and the represented age and tonnage of the vessel was material. *To this rejoinder the plaintiff de- [*104 murred, and stated causes of demurrer nearly like those to the 5th plea. The 7th plea was, in substance, that the vessel was in part owned by one Alexander Burot, a French citizen, and an enemy of Great Britain, and that this fact was not disclosed to the defendants at the time of executing the policy. To this plea there was a general demurrer. The 8th plea was, in substance, that the 49 plaintiff had not paid the premium, but had obtained a perpetual injunction from the Court of Chancery in Virginia, against the defendants, to prevent the recovery thereof. To this plea also there was a generel de murrer. The judgment of the court below was in favor of the defendants on the demurrer to the 6th plea, and in favor of the plaintiff upon all the other demurrers. Swann, for the plaintiff in error. It is a sufficient answer to the 4th plea, that the policy is general; it contains no warranty of neutrality, and therefore covers belligerent as well as neutral property. 1 N. Y. T. Rep. 230, 238, 243; 2 Emerig. 460; Doug. 16 Marsh. 286. The objections to the 5th plea are, 1. That no misrepresentation touching the subject of a sealed contract is sufficient, in a court of law, to set it aside. The insurance cases against incorporated companies in England show that an equitable defense may be made in that country under the statutes. All other cases upon insurances are cases of simple contract. 105*] *This question then depends upon the general principles of the common law. By that law a misrepresentation touching the subject of a sealed contract was not pleadable against that contract. It is true that any fraud in the execution of an instrument which will authorize the plea of non est factum, may be relied on at law. 1 Burr. 391. So you may show that the consideration of a deed is unlawful, as in the cases of usury, gaming, simony, etc. But this plea shows no fraud, nor unlawful consideration. It relies merely upon a mistake which goes only to a part of the subject matter of the contract. 2. The misrepresentation set forth in this plea would not be sufficient to vacate the policy, even if it were a simple contract. The misrepresentation must relate to the risk, and be material as it regards the risk. All the cases speak a uniform language upon this subject. Marsh. 334, 335; Park, 197, 204, 205; 1 N. Y. T. Rep. 237, 238, 245. If the representation must be material in regard to the risk, the plea is bad in substance; because it does not show any facts which would increase the risk, nor aver the representation to be material to the risk. 3. As the misrepresentation relates to the value of the vessel, and not to the risk of the voyage, the defendants are estopped from alleg ing that the vessel was worth less than the value agreed upon in the policy. 4. In a valued policy the underwriter waives all inquiry into any fact or circumstance that relates to the value of the thing insured: and the extent or amount of value in such a policy is altogether immaterial. Park, 1, 109. The 6th plea concludes by saying that the 106*] representation *was material in regard to the contract of insurance. This averment is difficult to be understood. It might mean material as it regarded the amount insured, or material as it regarded the risk. If issue had been taken upon this averment, the jury might have decided that the representation was material as it regarded the amount insured; and upon that ground the cause might have been lost. If the plaintiff had demurred to it, it might have been an admission that it was material to the risk. If the averment had been that it was material as to the amount insured, we should have demurred; if it had been that it was material to the risk, we should have taken issue. In this uncertainty it was necessary for the plaintiff to reply specially, tendering an issue as to the materiality of the representation in regard to the risk of the voyage. This issue the defendants refused to join, and have thereby explained their averment to be that the representation was material, not to the risk, but to the amount insured. In this point of view it is bad not only for the reasons alleged against the 5th plea, but because it neither shows nor avers the representation to be material in regard to the risk. No falsehood or misrepresentation, not increasing the risk, is material. No misrepresen· tation touching the ability of the vessel to perform the voyage can be material if she is seaworthy. The law does not notice grades of seaworthiness; and with regard to this point her age and tonnage were perfectly immaterial; and it was equally immaterial as to the value, because the value was conclusively fixed in the policy. E. J. Lee and C. Lee, contra, contended, 1st. That the expression "of Richmond" implied a warranty that the property was neutral, and the condemnation was conclusive evidence of a breach of that warranty. 2d. That [*107 the declaration was bad because it contained no averment of an offer to abandon; and 3d. That the misrepresentation, as stated, amounts to fraud in law, and that fraud will vacate every kind of instrument; and that in all cases of insurance any misrepresentation material to the contract is fatal. It is because it is a valued policy, that the misrepresentation as to the age and tonnage became material to the contract. It was a misrepresentation of those facts upon which judgment was to be formed of the value of the vessel. The defendants never would have agreed to fix that value, unless they had believed the representation of the plaintiff as to those facts. The misrepresentation induced the defendants to make a contract which they would not otherwise have made. It is unnecessary that the plaintiff should have known that he was misrepresenting the facts. He undertook to represent the facts, and by so doing must take the risk of their truth, and the consequences of their falsehood. The materiality was a question for the jury. Whenever the question of law is involved with the fact, the court may leave the whole to the jury. The plea is not double. A misrepresentation the formation of a correct judgment as to the may be in a variety of particulars necessary for value. The defendants are not estopped by their deed from alleging facts which show the mis take, or misrepresentation upon which the instrument was predicated; because if the deed be void the estoppel cannot exist. If the goods of an enemy be insured as the goods of an ally, the policy is void. The only question on this point is, whether the vessel | American property was covered by it. Some of was insured as an American vessel. the parties being described as of Richmond, 108*] *The payment of the premium is for- does not necessarily imply that they all resided ever enjoined, and nothing can be more unjust there; but if they did, mere residence would than to compel the defendants to pay the loss. not make them citizens; and even then, an exThe following authorities were cited by the press warranty was necessary, if it had been counsel of the defendants. 1 Rob. 11, 13; 1 designed to run only a neutral risk. This is Burr. 397; Shep. Touch. 58, 59; Chitty on an answer to the 7th as well as to the 4th Bills, 8, 9; 3 Bro. Parl. Cas. 525; Smith's Rep. plea; because there can be no undue conceal289; 2 P. Wms. 154, 157, 220, 287; Marsh. | ment as to the parties interested, where the 339, 340, 348; Doug. 260; Marsh. 199, 201, terms of the policy are so broad as to preclude 586; 2 Wils. 347; 1 Fonb. 230; 5 Com. Dig. the necessity, either of disclosing their names, tit, Pleader, 2 W. 18; 3 T. R. 438, Hayne v. or of inserting them in the instrument. Maltby; 2 W. Bl. 1152; 5 Co. 129; Gilb. Ev. *The 8th plea is also bad. The de- [*110 163; 2 Vent. 107; Bull. 173; 1 Mod. 477; 1 fendants acknowledge under seal, to have reWooddeson, 207; 3 Burr. 1918; Carter v.ceived a consideration of 17 1-2 per cent. for Boehm, Park. 182; 1 N. Y. T. Rep. 229; Barne- the insurance they made, which it appears was wall v. Church, Doug. 260, 261, 262; McDowell secured by a note, the amount of which was v. Frazier, 1 W. Bl. 593; Carter v. Boehm, to be deducted from the sum to be paid for Millar, 57; Park, 209; Marsh. 208, 209, 350, a loss, if any happened. On the face of the inStewart v. Dunlop; 2 East, 452, Williamson v. strument, then, a valid consideration, if that be Allison; 4 East, 590; Haywood v. Rogers; necessary, is stated, and if the note be never Marsh. 540, Le Cras v. Hughes; 3 Cranch, 281, paid it cannot vacate the contract, or be relied McFerran v. Taylor & Massie; 1 Ves. 213; 4 on as a defense to an action on it. This court Dall. 250; Doug. 96; 2 Wils. 352, Collins v. knows not why a court of equity has been apBlantern; 1 Vent. 121; Doug. 30; 2 Wils. 8, plied to for an injunction. Its proceedings, Long v. Jackson; Skin. 327. therefore, can have no influence on the present suit, for notwithstanding its interposition in the way mentioned in this plea, the defendants cannot be deprived of the right they have reserved of deducting the amount of premium from whatever sum they may have to pay for the loss that has occurred. Jones, in reply, was directed by the court to confine his observations to the 5th and 6th pleas. No fraud or covin is charged in either of those pleas; the doctrines, therefore, respecting a sealed instrument being vacated by fraud, do not apply. The case depends upon the principles of the common law applicable to contracts under seal. The 5th and 6th pleas are in substance the same; and if the 5th be bad, as the court below decided, the 6th must be bad for the same rea Bons. There is no case in which a sealed instrument has been set aside on the grounds alleged in the plea. If the facts would not maintain an action of deceit, they will not avoid a contract under seal. They cannot even be given 109*] in evidence. It must be a matter that goes to the whole contract, and shows it to be void ab initio. It must be an allegation of fraud, or of illegal consideration. The case of Hayne v. Maltby, 3 T. R. 438, is the only one cited which bears upon the present. But there the contract was void ab initio, and the case was decided upon the prineiple of fraud. It is immaterial what the facts of the case were, or how slight the evidence of fraud was. It is the principle only which is to be considered. In an action at law upon a sealed contract you cannot go into the question of consideration, but to show it fraudulent or illegal. 2 Cro. 4, Chandler v. Lopus; 1 Com. Dig. 184; 2 East, 446. February 24. Cushing, J. (Marshall, Ch. J., not sitting in the cause), delivered the opinion of the court1 as follows: The insurance in this case being general, as well for the parties named as "for all and every other person or persons to whom the vessel did or might appertain," and containing no warranty of neutrality, belligerent as well as 1.—Present, Cushing, Washington, Livingston and Johnson, justices. Without deciding whether a material misrepresentation, not fraudulent, can be pleaded in avoidance of a sealed instrument, the court thinks there is no fact disclosed by either the fifth or sixth plea which could vacate an insurance were it only a simple contract. In no part of the 5th plea is the misrepresentation alleged to be material. It is only to be inferred that it had some influence, but to what degree does not appear, in prevailing on the defendants to agree to so high a valuation. It will hardly, however, be insisted, that every over-valuation, however inconsiderable, or however innocently produced, will annul a contract of this nature. It would seem more reasonable to let mistakes of this kind, if they are to have any operation at all, regulate the extent of recovery, and not deprive the party of his whole indemnity: for if an extravagant valuation be made, an underwriter cannot reasonably ask to be relieved beyond the excess complained of. The allegation that the vessel was worth, when insured, only 3,000 dollars, is also very unimportant, it being nowhere stated that the plaintiff represented her to be worth more, but only proposed that her value in the policy should be agreed *at ten thousand dollars. Now, al [*111 though she might not in fact have been worth this sum, it is impossible for the court to say that this difference was produced entirely by the mistake which was made in her age and tonnage. This would be to say that a difference of a year or two in the age, and of fifty or sixty tons in the burden of a vessel, must, in all cases, have the same effect on her value; a conclusion which, on investigation, would be found very incorrect. Nor, if it appeared on trial that her actual worth were no more the contract, or restrict the damages to that than 3,000 dollars, would it necessarily avoid sum; for she may, notwithstanding, have fairly cost her owners the whole amount of her valuation; who, in that case, would have honestly represented her as worth 10,000 dollars. But a more fatal objection to this plea is, that the misrepresentation relied on is not stated to have been material to the risk of the voyage; and yet the only cases in which policies have been avoided for innocent misrepresentations are those in which the matter disclosed or concealed has affected the risk so as to render it different from the one understood at the time, and on which the premium was calculated. Most of the remarks on the 5th apply also to the 6th plea for although it be here alleged that the misrepresentation was material "in regard to the contract of insurance," it should have been stated in what particular, that it might appear whether the risk run were at all affected by it. An objection is made to the declaration, but not much relied on, that no abandonment is averred to have been made. In covenant such averment cannot be necessary. If it be proved on the trial, it will be sufficient. The judgment of the Circuit Court on the 4th, 5th, 7th and 8th pleas must be affirmed with costs; and its judgment in favor of the 112] defendants on the 6th plea reversed; and judgment on that plea be also rendered for the plaintiff. Johnson, J. The difficulties in this case arise partly from the pleadings, and partly from the case presented by the pleadings. This policy, having been effected by a corporation under its corporate seal, has been considered as imposing an obligation on the insured to bring covenant instead of assumpsit, as is usual on such contracts. Thus the defendants have been obliged to plead specially; and the cause comes up on demurrer, which, of course, admits the case as made up on the pleadings. Whether there is sufficient matter well pleaded why the plaintiff ought not to recover? is therefore the question before us. I am of opinion that there is. I cannot for a moment suffer the sealing of the policy, or the form of the action, to impose any restriction upon the latitude of defense applicable to the contract of insurance. Such a doctrine would be fatal to every incorporated insurance company. I therefore maintain, that, in the action of covenant on a policy of insurance, every defense may be taken advantage of, in pleading, that could be introduced, in evidence, before a jury. It is an exceedingly inconvenient form of action for trying the merits of questions arising out of this species of contract, and I feel disposed, if possible, to diminish the inevitable difficulties, and the intricate and voluminous pleadings, which must grow out of this form of action, and to admit every facility which the rules of pleading will possibly sanction. There are eight pleas filed to the present action. On the three first there are issues in fact, and the court below has given judgment on the 113*] remaining *five. I am disposed to concur in their decisions on each of these several pleas, although, perhaps, on some of them, for reasons not altogether the same with those by which they were influenced; but I shall confine my observations solely to the sixth plea, as that disposes of the case finally, if decided for the defendants, and has been the principal subject of the argument before this court. The substance of this plea is, that the plaintiff misrepresented the age and tonnage of the vessel, whereby the defendants were induced to insure to a higher amount than they otherwise should; and concludes with averring, that the difference between the true age and tonnage of the vessel, and the represented age and tonnage, was material in regard to the contract of insur ance The plaintiff replies that this misrepresentation was immaterial in regard to the seaworthiness of the vessel, her ability to perform the voyage, and the other risks insured against. To me it appears that the plea presents the true turning points of the case, and that the replication draws towards questions very different from that which ought to control our decision It is not on the doctrine of seaworthiness that a misrepresentation is held to vitiate the policy, because the insured is always held to guarantee the sufficiency of his vessel to perform the voyage insured. Nor is it an evident and necessary increase of the risk; but it is presenting such false lights to the insurer as induce him to enter into a contract materially different from that which he supposes he is entering into. It is a rule of law introduced to protect underwriters from those innumerable frauds which are practiced upon them in an contract which most of necessity oe regulated almost wholly by the information derived from the insured. I do not lay so much stress upon the misrepresentation *with regard to the age of [*114 the vessel; for that appertains much to her seaworthiness; but with regard to her size the misrepresentation was so enormous as leaves no doubt upon my mind that had the case been submitted to a jury, the court would have been bound to charge them in favor of the defendants. It had in its nature an immediate tendency to entrap the defendants into one of the most common and most successful snares laid for the unwary underwriter. To make it the interest of the insured rather to sink than to save his vessel. It can very well be conceived that an underwriter may be induced to insure a certain sum upon a certain vessel for a very moderate premium, when no premium would induce him to insure double that amount upon the same bottom. I am aware of a very considerable difficulty arising out of this case, viz., how we are to estimate the degree of misrepresentation with regard to tonnage which shall vitiate a policy; but it is a difficulty arising out of the mode in which we are drawn into a decision on the case, rather than out of the case itself. If this question had been brought before a jury, the difficulty would have vanished; but shall the party lose the benefit of this defense because the pleadings have assumed such a shape as to force the court into a decision upon the point without a jury? I am of opinion that he ought not, if it can be avoided; an extreme case may be supposed in which the misrepresentation may be very inconsiderable, as of a single ton for instance; but, on the other hand, we may suppose an extreme case of a misrepresentation to the highest possible against the surviving executrixes of the late number of tons burden, say 1,000 tons; will it David Rittenhouse, Esq., and to the said disbe said that, in the latter case, the misrepre-trict judge directed, begs leave to return, sentation would not avoid the policy? From these considerations it seems to result that the court is driven to the necessity of deciding this case upon its intrinsic merits, and reserving its opinion upon successive cases as they shall occur. This necessity is forced upon us by the alternative either to decide that no 115] misrepresentation, however gross, *of the size of the vessel will avoid a policy, or that any misrepresentation, however minute, will have that effect. It is to be hoped, in the meantime, that some statutory provision may be made which will relieve the court from a similar embarrassment. Judgment reversed. THE UNITED STATES v. JUDGE PETERS. of the United States. The legislature of a state cannot annul the judg ments, nor determine the jurisdiction, of the courts The Court of Appeals in prize causes, erected by the Continental Congress, had power to revise and correct the sentences of the state courts of admiralty. Although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction. IT the last term Gideon Olmstead, in behalf Ath himself and artimus White, Aquilla Rumsdale, and David Clark, moved the court for a mandamus1 to be directed to the honorable Richard Peters, Judge of the District Court of the United States for the Pennsylvania District, commanding him to order and direct an attachment or other proper process to issue to enforce obedience to the sentence of the said District Court in a civil cause of admiralty and maritime jurisdiction, in which the said Gideon Olmstead and others were libellants, and Elizabeth Serjeant and Esther Waters were respondents. This motion was made upon a suggestion, supported by affidavit, that a copy of the sentence had been served upon the respondents, which they refused to obey; and that application had been made to the judge for an attachment, which he had refused to grant; whereupon a mandamus nisi was granted returnable to this term; when the judge made the following return: 116] "To the Honorable the Supreme Court of the United States, "The subscriber, judge of the District Court, of the United States, in and for the District of Pennsylvania, in obedience to the mandamus issued by order of the Supreme Court in the case of Gideon Olmstead and others, libellants, "That the proceedings of the District Court in the above cause, which are herewith transmitted, and respectfully submitted, will show the grounds of the judgment by the said court rendered. Every opportunity, through the whole course of these proceedings, was given to the parties to litigate the claim, or discuss questions, either on the merits or jurisdiction. Nor was any step taken without due and timely notice. "The answer of the respondents will show their objections to the claim of the libellants. This answer refers to an act of assembly of the state of Pennsylvania, passed the 26th day of February, 1801, which was not produced or brought under the legal notice of the court. "No application for execution of the decree was made until within twelve or eighteen months past; nor has it been, till more recently, much pressed. "By the suggestion filed by the respondents, their objections to the execution of the decree will appear. They have made an act of assembly of the state of Pennsylvania a part of their suggestion; and thus, for the first time, during the pendency of the suit, brought this act under the judicial notice of the court. It is entitled "An act relating to the claim of this commonwealth against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Rittenhouse, Esq., deceased, passed April the second, 1803;" and to this act [*117 I pray leave to refer. "This act, or any of its allegations, has no influence on my opinion. Let this opinion be erroneous or correct, a proceeding, in some of its parts, indecorous, and, in others, unjustifiable, can have no operation in rectifying supposed errors, or convincing my judgment. But from prudential, more than other motives, I deemed it best to avoid embroiling the government of the United States and that of Pennsylvania (if the latter government should choose so to do) on a question which has rested on my single opinion, so far as it is touched by my decree; and, under the influence of this sentiment, I have withheld the process required. If this be not considered a legal cause, it must be deemed a candid acknowledgment that I do not invariably obey a rigorous dictate of duty, or follow an inflexibly strict construction of law. "I entertained a hope that a legislature succeeding that by which the act before mentioned was passed, would, under a more temperate view of the subject, have repealed it; and enable and directed the executive of the state, or some other authority, to put this case in a legal train of investigation: so that the final judg ment and decree of the superior tribunal of the 1. On Saturday, March 5th, 1808, upon the affidavit of Olmstead, a rule was granted that Judge United States might have been, in a proper Peters should show cause by the next Saturday, why course, obtained; and thereby any erroneous a mandamus should not issue. On Saturday, opinion, or decree, given or made by me, might March 12th, a letter was received by one of the have been rectified (if any opinion or decree counsel for Olmstead, from Judge Peters, acknowledging service of the rule; and stating that an act should have been found illegal or erroneous) of the legislature of Pennsylvania had command in a manner more becoming the real dignity of ed the governor of that state to call out an armed a state, more suitable to the situation of those force to prevent the execution of any process to enforce the performance of the sentence. That who execute the duties of a branch of the govsuch being the state of things he should not direct ernment of the United States, and more conprocess to issue unless he should be so ordered by sistent with the good order and peace of the this court; whereupon a mandamus nisi was grant-community. This hope was cherished by the ed, returnable at the next term. |