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 defertion, from further pursuing her cruife: that the perfon infured had interest 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 unanimoufly reverfed that judgment. The Houfe 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 loss; 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, ftated 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 regulation. 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 the country, where the infurance was made: in three months, in other provinces of our kingdom in four months, on the coast of Holland, Flanders, and England: in a year, in Spain, Italy, Portugal, Barbary, Mufcovy, Norway: and in two years, for the coafts of America, the Brafils, Guinea, and other diftant countries. When thefe terms are elapfed, the demands of the affured fhall not afterwards be admitted. In cafes of detention, 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 commencé from the day of the notifying this detention to the infurers. Á 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 refpect to abandonment, at least that I have been able to find; and I believe, that none fuch exifts. 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: becaufe, 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 confirued: we have treated of the various loffes, to which the underwriter fubjects himself 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 circumftances, cumstances, the insured shall be allowed to abandon to the underwriter. The course of our enquiry now naturally leads us to obferve, in what inftances the infurer is discharged from any refponfibility; either on account of the contract being void, from its commencement, by reafon of fome radical defect; or because 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. IN 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 first place to confider, how far it will be affected by any degree of fraud. In every contract between man and man, opennefs and fincerity are indifpenfably neceffary to give it it's due operation; because, 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 insured, 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 stricteft 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 Pufendorff undue concealment. de jure nat. After what has been faid, it will hardly be ne- Bynkertheek 1. 5. c. 9. f 8. ceffary to mention, that both parties, the infurer quest. 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 insurer, at the time he un- 14. f. 38. derwrites, can be proved to have known that the 1 Black. 594. fhip was fafe arrived, the contract will be equally 3 Bur.1909, void, as if the infured had concealed from him fome accident, which had befallen the ship. 26. 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 : 1ft, The allegation of any circumftances, 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 risk at all, or if he did, might entitle him to demand a larger premium: and, laftly, a misreprefentation. The laft of thefe, a mifreprefentation, feems to fall under the first head, the allegatio faifi; 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 misreprefented, 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 muft know to be falfe. In our reporters, we do not meet with fo Skinner 327. Roberts v. Hall after many cafes under this divifion of the fubject, as under the two following: and indeed, from the nature of the thing, it is impoffible we should; because in fuch a cafe, the only queftion is, did the insured affert this to be the truth. If he did, the enquiry is at an end; because we are now prefuming it to be the affertion of a circumftance within his own knowledge. This being a mere question of fact, is not a fubject for a reporter. But in the other cafes, there is, greater room for investigation; we may properly enquire, for inftance, whether the infured was bound to difclofe this fact? Whether the mifrepresentation was in a material part? and many other fimilar queftions, of which we fhall fee the neceffity hereafter. The few following cafes will evidently fhew, that our idea was right, when we fuppofed, that under the head of the allegatio falfi, the only enquiry would be, whether the perfon infured, knowing the contrary, afferted a particular thing to be true. In a cafe before Lord Chief Justice Holt, in the reign of William and Mary, that learned judge held, that if the goods were infured as the goods of an Hamburgher, who was an ally, and the goods were, in fact, the goods of a Frenchman, who was an enemy; it was a fraud, and that the infurance was not good. In another cafe, a letter being received, stating, Fonnereau. that a fhip failed from Jamaica for London, on the StatGuild. 24th of November, after which an insurance was made, and the agent told the infurer, that the fhip failed the latter end of December; this was alfo held by Lord Chief Juftice Lee to be a fraud, and the defendant had a verdict. Trin. Term 1742. Woolmer v. 1 Upon a fpecial cafe referved for the opinion. of the court, the following circumstances appeared. It was an action on the cafe, brought for the 3 Murr.1419. recovery of a total lofs, on a policy of infurance Black. 427. made |