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they thought the voyage intended was to Cadiz, they must find for the plaintiff. If, on the contrary, they should think there was no defign of going to Cadiz, they must find for the defendant, It alfo appeared in evidence, that the premium to infure a voyage from Maryland to Falmouth, and from thence to Cadiz, would have greatly exceeded what was paid in this cafe. Upon the motion for a new trial being argued, the counsel for the plaintiff cited the two cafes above ftated from Strange's Reports.

Lord Mansfield.-The policy, on the face of it, is from Maryland to Cadiz, and therefore purports to be a direct voyage to Cadiz. All contracts of infurance must be founded in truth, and the policies framed accordingly. When the infured intends a deviation from the direct voyage, it is always provided for, and the indemnification adapted to it. There never was a man fo foolish as to intend a deviation from the voyage described, when the infurance is made, because that would be paying without an indemnification. Deviations from the voyage infured arife from after-thoughts, after-intereft, after-temptation; and the party, who actually deviates from the voyage defcribed, means to give up his policy. But a deviation merely intended, but never carried into effect, is as no deviation. In all the cafes of that fort, the terminus a quo, and ad quem, were certain and the fame. Here, was the voyage ever intended for Cadiz ? There is not fuffi, cient evidence of the defign to go to Boston, for the court to go upon. But fome of the papers fay to Falmouth and a market: fome to Falmouth only. None mention Cadiz, nor was there any perfon in the fhip, who ever heard of any intention to go to that port. A market is not fynonimous to Cadiz; that expreffion might have meant Naples, Leghorn, or England. No man upon the inftructions, would have thought of getting the policy filled up to Cadiz. In fhort, that was ne

Green v.

Young.

840.

2 Salk.

444.

ver the voyage intended, and confequently is not what the underwriters meant to infure.

Mr. Justice Buller.-I am of the fame opinion, I believe the law to be according to the authorities mentioned on the part of the plaintiff; but it does not apply here. This is a question of fact. There cannot be a deviation from that, which never exifted. The weight of the evidence is, that the voyage was never defigned for Cadiz.

Mr. Juftice Willes and Mr. Juftice Afbburft concurring in the opinion delivered by Lord Mansfield and Mr. Juftice Buller, the rule for a new trial was discharged.

From the propofition just established, namely, that a mere intention to deviate will not vacate the policy, it follows as an immediate confequence, that whatever damage is fuftained before actual deviation, will fall upon the underwriters.

Thus it was held by Lord Chief Justice Ho't, who faid, that if a policy of infurance be made to 2 Ld. Raym. begin from the departure of the fhip from England until, &c. and after the departure a damage happens, &c. and then the ship deviates; though the policy is difcharged from the time of the deviation, yet for the damages fuftained before the deviation, the infurers fhall make fatisfaction to the infured.

S. C.

Doug. 758.

Vid Pot. c. 19.

Subject to the rules already advanced, deviation or not is a queftion of fact, to be decided according to the circumftances of the cafe.

In cafes of deviation, the premium is not to be returned; because the risk being commenced, the underwriter is entitled to retain it: but of this more will be said in a fubfequent chapter.

CHAP

CHAPTER THE EIGHTEENTH.

Of Non-Compliance with Warranties.

I effect, which the non-obfervance of implied

the two preceding chapters we have seen the

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Term Rep. for Trin. 26 Geo.

P. 345.

conditions has upon the contract of infurance: we shall now proceed to confider the nature of warranties; their various kinds; and how far they must be complied with on the part of the insured, in order to render the contract binding between the parties. A warranty in a policy of infurance is a condition or a contingency, that a certain thing fhall be done, or happen, and unless that is performed, there is no valid contract. It is perfectly immaterial for what view the warranty is introduced; or whether the party had any view at all: but being once inferted, it becomes a binding condition on the infured; and unless he can fhew that he has literally fulfilled it, or that it was performed, the contract is the fame, as if it had never existed. We have already feen that the breach of an im- Chap. 16,17. plied condition is fufficient to avoid the policy; a fortiori therefore, the effect must be the fame, where the condition is exprefs, and not liable to mifrepresentation or error, because it makes a part of the written contract. To fay that the underwriter fhould anfwer for a lofs, notwithstanding the other party has failed in his engagements, would be to make a different rule in this fpecies of contract, from that which fubfifts in every other; although this of all other contracts depends most upon the strictest attention to the pureft rules of equity and good faith. Indeed the obligation to a ftrict performance of all promifes and conditions in every fpecies of contract, may be deduced, as has been truly obferved by

an

Paley's Mor. an elegant moral writer, from the neceffity of fuch a conduct to the well-being, or the exiftence of human fociety.

Phil.

We have faid that a warranty must be strictly and literally performed; and therefore whether the thing, warranted to be done, be or be not effential to the fecurity of the fhip; or whether the lofs do or do not happen, on account of the breach of the warranty, ftill the infured has no remedy: because he himself has not performed his part of the contract, and if he did not mean to perform, he ought not to have bound himself by fuch a condition. And though the condition. broken be not perhaps a material one, yet the justice of the law is evident from this confideration that it is abfolutely neceffary to have one rule of decifion; and that it is much better to fay, that warranties fhall in all cafes be ftrictly complied with, than to leave it in the breaft of a judge or jury to fay, that in one cafe it fhall, and Term. Rep. in another it fhall not. The very meaning of a

for Trin. 26 Geo. 3. P. 346.

warranty is to preclude all enquiries into the materiality, or the fubftantial performance of it: and although fometimes partial inconveniencies may arife from fuch a rule; yet upon the whole, it will certainly produce publick falutary effects. The infured is bound not to draw the underwriter into error, by falfe declarations refpecting thofe d'Afurance, things, about which the contract is made. Debet præftare rem ita effe ut affirmavit.

Pothier Tr. du Contrat

P. 197.

Cowp. 607.

This being the cafe, it follows as a neceffary confequence, that it is very immaterial to what caufe the non-compliance is to be attributed; for if the fact be, that the warranty was not complied with, though perhaps for the best reafons, the policy has no effect. The contingency has not happened; and therefore the party interested has a right to fay, that there is no contract between them. Upon this account it is, that if a fhip be warranted to fail on or before the 1ft of August, and he be prevented by any accident

from

from failing till the 2d of Auguft, as by the fudden want of any neceffary repair, or by the appearance of an enemy at the mouth of the port, the captain would do right not to fail; but there would be an end of the policy.

In this ftrict and literal compliance with the terms of a warranty confifts the difference between a warranty and a reprefentation.

Of this diftinction fomething was faid in a pre- Vide ante ceding chapter: it is fufficient now to obferve, c. 10. that a warranty, as part of the agreement, and a condition on which it was made, must be ftriftly complied with; whereas a reprefentation need Pawfon v. only be performed in fubfiance. In a warranty, Watfon. the perfon making it takes the rifk of its truth or Cowp. 787. falfhood upon himfeif: in a reprefentation, if the infured affert that to be true, which he either knows to be falfe, or about which he knows nothing, the policy is void on account of fraud. But a reprefentation, made without fraud, if not falfe in a material point, or if it be fubftantially, though not literally fulfilled, does not vitiate the policy.

But as reprefentations were very often made in writing, by way of inftructions for effecting a policy, it became neceffary to fpecify what written declarations fhould be deemed warranties, and what reprefentations. It was, therefore, by feveral decifions of the courts, held to be law, that in order to make written inftructions valid and binding as a warranty, they must appear on the face of the inftrument itfelf, by which the contract of infurance is effected.

This was declared by Lord Mansfield in a very Pawfon v. particular manner in anfwer to a question put to Watfon. him by Mr. Davenport at the defire of the under Cowper 790. writers, after he had delivered the opinion of the court upon a question on a reprefentation.

Even though a written paper be wrapt up in the policy, when it is brought to the underwriters to subscribe, and fhewn to them at that time: or

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