his whole loss from one set of underwriters, they will be entitled to their action against the other insurers, on the same interest and risk, for a ratable proportion of the loss." The doctrine of contribution applies very equitably to such a case. It was so declared by the Circuit Court of the United States at Philadelphia, in Thurston v. Koch; and though, in most countries of Europe, the first policy in the order of time is to be exhausted before the second operates, yet the rule requiring the insurers in each policy to bear a ratable share of the loss, was declared, in that case, to be founded in equity, and in sound principles of commercial policy. The French rule is, that if there exist several contracts of insurance on the same interest and risk, and the first policy covers the whole value of the subject, it bears the whole loss, and the subsequent insurers are discharged on returning all but half per cent. premium. But if it does not cover the entire value, the subsequent policies, in case of loss, are bound only to make up the part uncovered. The ancient rule in England was according to the French ordinance, and it has been deemed more simple and convenient. Merchants frequently prefer it, and it is perfectly consonant to a strict construction of the contract with the first underwriter.

Policies have sometimes a clause introduced into them to prevent the rule of contribution, and to make the insurers responsible according to the order of date of their respective policies. Where two policies were dated upon the same day, it was held, that prior in date was intended to be equivalent to prior in time, and that the policy first in time, in point of fact, was to bear the loss."

a Newby v. Reed, 1 Blacks. Rep. 416. b 4 Dallas' Rep. 348. App. p. 32.

c Code de Commerce, art. 359.

d Malyne's Lex Mercatoria, 112. The African Company v. Bull,

1 Show. Rep. 132. Gilbert's Rep. 232.

e Brown v. Hartford Ins. Company, 3 Day's Rep. 58. The same VOL. III.

36

As a general rule of construction, and independent of usage, the first policy under such a clause as that to which I have referred, would have to bear the whole loss, whether partial or total, to the extent of the policy. But the usage of the companies in New-York is understood to be, that partial losses are to be apportioned between the policies without regard to dates, provided the cargo on board was large enough to have attached both policies to it. This is the French rule. In France, if there be goods on board to the amount of both policies, and a partial loss ensues, the insurers contribute ratably in proportion to their subscriptions.

(5.) Of representation and warranty.

All the writers who have treated of the contract of insurance, agree, that it is eminently a contract of good faith, which is peculiarly enjoined upon the insured, as he possesses an entire knowledge of all those circumstances which combine to form the contract, and is bound to communicate the facts and objects which are to determine the will of the insurer. It is, accordingly, an established principle, that a misrepresentation to the underwriter, or concealment of a fact material to the risk, will avoid the policy. It will avoid it though the loss arose from a cause unconnected with the misrepresentation, or even though the misrepresentation or concealment happened through mistake, neglect, or accident, without any fraudulent intention. Lord Mansfield laid down,

point was afterwards so ruled in Potter v. Marine Ins. Company, 2 Mason's Rep. 475.

a Columbian Ins. Company v. Lynch, 11 Johns. Rep. 233. Rogers v. Davis, Park on Ins. 374.

b Ord. de la Mar. des Ass. art. 25. 2 Valin, 73, 74. Code de Commerce, n. 360. Pothier, h. t. n. 77.

c Carter v. Boehm, 3 Burr. Rep. 1905. Pawson v. Watson, Coup. Rep. 785. Fitzherbert v. Mather, 1 Term Rep. 12. Ratcliffe v. Shoolbreed, Park on Insurance, 249, 6th edit. Mac Dowall v. Fraser, Doug. Rep. 260. Shirley v. Wilkinson, Doug, Rep. 293. n. Bridges v. Hunter, 1 Maule & Selw. 15.

with great strength and clearness, the general principle which governed this branch of the subject, and they have been implicitly adopted in all succeeding cases. The special facts upon which the contingent chance was 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 by mistake, or oversight, it does not affect the policy, unless it was material, and not true in substance."

a Marshall, in his Law of Insurance, p. 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

If the information be stated as mere opinion, or expectation, and, perhaps, as mere belief, it does not amount to a representation, or affect the policy, provided it was given in good faith, for the underwriter, in such a case, takes the risk upon himself."

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.4

The knowledge or information material for the insurer to know, and necessary to be communicated to him, when the contract is made, is a question, not of science, or one which rests upon the opinion of mercantile men, but 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

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 Lord Mansfield, Cowp. Rep. 738.

Rep. 305.

Barker v. Fletcher, Doug.

Hubbard v. Glover, 3 Campb. Rep. 312. Bowden v.

Vaughan, 10 East's Rep. 415. Rice v. New-England Marine Ins.

Company, 4 Pick. Rep. 439.
Gill. & Johnson, 136.

Allegre v. Maryland Ins. Company, 2

b Barber v. Fletcher, ub. sup. Stackpole v. Simon, Park on Ins. 582, 6th edit.

c Brine v. Featherstone, 4 Taunt. Rep. 869. Lord Ellenborough, Forrester v. Pigou, 1 Maule & Selw. 9. Bell v. Carstairs, 3 Campb. Rep. 543.

d Elting v. Scott, 2 Johns. Rep. 157.

that belong to the case." and with a review of the English and American authorities, in the case of the New York Firemen Insurance Company v. Walden, and that doctrine has since received the unqualified sanction of the Supreme Court of the United States." The books abound with cases relative to the very litigated question as to what are, and what are not, necessary disclosures. The largest and most accurate digest of the English and American decisions on this subject, is to be seen in Mr. Phillips' Treatise on the Law of Insurance, ch. 7; and it will not be 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.

This point was fully considered,

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. But the insured is not bound to communicate loose rumours, nor any facts which the underwriter may be presumed to know equally with himself.

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 underwriter is bound to know the nature

a Durell v. Bederley, 1 Holt's N. P. Rep. 283.

12 Johns. Rep. 513.

e M Lanaban v. The Universal Ins. Company, 1 Peters' Rep. 170. d Dacosta v. Scandrett, 2 P. Wms. 170. 1183.

e Lynch v. Hamilton, 3 Taunt. Rep. 37. cited ibid. Richards v. Murdock, 1 Lloyd

Seaman v. Fonereau, Str.

Beckwaite v. Walgrove, & Welsby, 132.

f Freeland v. Glover, Esp. N. P. 14. 7 East's Rep. 457. S. C. Kemble v. Bowne, 1 Caines' Rep. 75. Vallance v. Dewar, 1 Campb. N. P. Rep. 503.