REPRESENTATION. 



but it behov(?s all agfnts and brokers concerned in the be engaged, &c. ought to bo fully diiclofed ; and tlie kecp- 



cffeain-"- of policies, to keep correft entries of ihefe in- iiig back of any part of this fadt will be fatal vo the contract, 



ftruftiotis, and indeed of all reprefentations made to the In fuch cafe, the conceahneiit fo vitiates the policy that 



wnder-writers : for the whole queftion between the infured it will afford the inlured no remedy, even for a loff arifing 



and the und6r-vvriters often turns upon thefe inftruftions. from a caufc unconnefted with tiic faft or circumdanc- 



Befides, they are anfwerable to the infured for the confc- concealed ; for a concealment is to be confidered, not with 

 quences of any reprefentation made by them witliout au 



thority, as well as for thofe of omitting to make fuch re- 

 prefentations as they have been inftrufted to make. 



By an cxtenfion of equitable rehef in cafes of fraud, it 

 feems to be now fettled that if a falfe reprefentation be 

 made to the firft under-writer on the policy, in a material 

 point, this {hall be confidered as a mifreprefentation made 

 to every under-writer, fo as to infeft the whole policy, 

 otherwife it might be a contrivance to deceive many ; for 

 ■when a refpeftable under-writer (lands firft on the policy, 



reference to the event but to its efiect, at the time of mak- 

 ing the contraft. A well-founded fufpicion of concealment 

 will amount in the courts to proof of fraud. As it is in 

 foine cafes necelfary to (lalL- to the under-writers the nature 

 of the fervice in which the ihip is to be employed ; if this 

 be attended with any extraordinary danger, the concealment 

 of it will avoid the policy. A material concealment is fatal, 

 though the faft concealed was not difclofed, becaufe the 

 broker thought it immaterial. Doubtful rumours refpect- 

 ing the fafety of a fhip which it is intended to infure 



the reft fubfcribc the policy without aflcing a queftion ; and " loft or not loft," ought to be faithfully difclofed to every 



if the firft under-writer be impofed upon, the reft are en 

 trapped by the fame fraud. 



But the infurcr muft avail himfelf of this fort of objec- 

 tion in the firft inftance; for after a vcrdidl has been ob- 

 tained, the court will not fet it afide upon an affidavit of 

 the firft under-writer, that a material miiVeprefentation had 

 been made to him. The defendant, in fuch cafe, knows 

 what has been rcprefented to himfelf, and might have 

 known what had been reprcfentcd to the firft under-writer ; 

 and he (liall not lie by till after a trial, in order to make the 

 objeftion, if the vcrdift ftiould be againft him. 



If the infured ftate his computation as faB, inftead of 



under-writer ; and the withholduig of fuch information will 

 avoid the contract. The obligation of a ftricl obfervance 

 of good faith is equally binding on both parties in all con- 

 tradts ; and in that of infurance, the under-writer, as well 

 as the infured, is bound to difclofe all circumftances within 

 his knowledge aftetting the rlfk. It, therefore, it (houM 

 appear, that at the time when he underwrote the policy, he 

 knew that the fliip was arrived fafe, the contraft will be void 

 as to him, and an adtion will lie againft him to recover back 

 the premium. 



There are, however, many matters, which are open to 

 both parties, and upon which they may both exercile their 



the information on which he founds his com.putation, and judgments, with regard to which they may be innocently 



it prove untrue, it is a mifreprefentation ; and if material, 

 it will avoid the policy. 



A mifreprefentation in a material point equally vitiates 

 the contradl, whether it be the mifreprefentation of the 

 infured himfelf or of his agent, and whether it proceed 

 from fraud, miftake or negligence; for the infurer is 

 thereby led into an error, and computes the ri(k upon talfe 

 grounds. 



As a reprefentation is only matter of collateral informa- 

 tion, it is fufficient if it be true in fuhjlance ; and its not 



I'llent. The infured need not difclofe what the under-writer 

 knows, or what he ought to know. The under-writer needs 

 not be told what leffens the rifle agreed upon, and is under, 

 ftood to be comprifed within the terms of the polic)^. He 

 is bound to know every caufe which may occafion natural 

 perils, as the difficulty of the voyage, the variation of feafons, 

 the probability of lightning, hurricanes, &c. He is alfo 

 bound to knew every caufe which may occafion political 

 perils, from the rupture of ftates, from war, and its various 

 operations ; and he is bound to know the probability of 



being inferted in the policy in the form of a warranty, is fafety from the continuance and return of peace, from the 

 looked upon as a proof that the infurcr does not require it imbecility of the enemy, the weaknefs of their counfels, or 

 to be ftriaiy and literally true. Although the voyage be their want of ftrength. There are other circumftances 

 reprefented as being lefs than the voyage defcribed in the which the under-writer ought to know ; and, particularly, 

 policy, yet, if there be no fraud, and the voyage aftually it is not neceftary to communicate to him, that the iliip is 

 ^ , . .1 foreign built, though this enabled her to fail without con- 



performed be within the policy, it will be protected by the 

 policy. Even if a reprefentation as to the courfe of the 

 voyage be literally untrue, yet if it be made in conformity 

 to an ettablilhed ufage of trade, and no perfon be deceived 

 by it, and the voyage meant to be performed be within the 

 policy, it will not avoid the contratt. 



Every reprefentation refpefting the ftate of the fhip, and 

 the time of her failing, is material ; and therefore if it be 

 ftated that a fhip was ready to fail on a certain day, when, 

 in faft, (he had failed the d'ay before, this is both a mifrepre- 

 fentation and a concealment, and will avoid the poHcy. 



Concealment, or " fuppreffio veri," is nearly allied to 

 mifreprefentation, or " allegatio falfi," and confifts in the 

 fraudulent fuppreffion of any faft or circumftance material 

 to the rilk ; and this, bke every other fraud, avoids the con- 

 tTuQ. ab inilio, upon principles of natural juftice. But it is 

 not merely on the ground of fraud that a concealment avoids 

 the contraift ; for even a concealment which is only the effedl 

 of accident, negligence, inadvertence, or miftake, will be 

 equally fatal to the contrafl, as if it were intentional and 

 fraudulent. Whatever refpefts the ftate of the ftiip, the 

 time of her failing, the nature o£ the employ in which ftie is to 



voy, and without a licence to do fo, being within the ex- 

 ception in the ftat. 38 Geo. III. c. 76. ^ 6 ; it being the 

 bufinefs of the under-writer to obtain this information for 

 himfelf. In cafes of concealment, the queftion muft always 

 be, whether there was, under all the circumftances, at the 

 time when the policy was underwritten, a full and fair ftate- 

 ment, or a concealment : fraudulent, if defigned ; or, though 

 not defigned, varying materially the object of the policy, 

 and changing the rifk underftood to be run ; and in both 

 cafes avoiding the contract. It is not neceffary that there 

 fhould be any previous reprefentation as to the itate of the 

 fhip, that being covered by the implied warranty that fhe is 

 fea-worthy. For a variety of other particular fafts and 

 documents, relating to the fubjefls of reprefentation and 

 concealment, we refer to Marfhall's Treatife on the Law of 

 Infurance, vol. i. b. i. ch. 9 and 10. See Warranty. 



REPRESENTATIVE, one that perfonatea, or fup- 

 plies the place of another ; and is invelted with his right 

 and authority. 



The \y.ord reprefentative is equivalent to procurator or 

 proxy. 



The 



