but mis-stated. In the case first mentioned, the defendant in an action on a policy of insurance from Archangel to Leghorn attempted to shew, that the agreement before the subscription of the policy was, that the adventure should begin only from the Downs, but the Court would not admit the evidence. The same rule of course applies to charter parties. In a case where a ship was chartered to wait for convoy at Portsmouth, Lord Kenyon would not suffer a parol agreement to be set up on the other side to substitute Corunna for Portsmouth. Leslie v. De la Torre, cited 12 East, 583. The contract of insurance is to be construed by its own terms expressed in the policy, and it cannot be varied by parol proof. The N. Y. Gas Light Co. v. The Mechanics F. Ins. Co. 2 Hall, 108. See also Thompson v. Ketcham, 8 J. R. 189. The terms of the contract as expressed in the policy are to be taken as evidence of the contract; and hence all conversations or memorandums which are not annexed or inserted in the policy; all proposals made or conversations had before the subscription, inconsistent therewith, are to be considered as waived. Higginson v. Dall, 13 Mass. 99. The declarations of the parties, it seems, made at the time of the execution of the policy are inadmissible, ib. Whitney v. Haven, 13 ib. 172. But a condition or undertaking implied may be superseded by a verbal statement. Parks v. General Int. Assu. Co. 5 Pick. 34; Van Ness v. City of Washington, 4 Pet. R. 232. Parol evidence is admissible to show who was intended to be insured by the words for whom it may concern, or on account of the owners; for this is only reducing to certainity that which is left uncertain by the policy. Catlett v. Pacific Ins. Co. 1 Wend. 561; 4 ib. S. C. Murray v. The Columbia Ins. Co. “J. R. 311; Marsh. on Insu. 682, 710, 760; Lawrence v. Sebor, 2 Caines, 203. The words" owners of the brig Sampson are words of description of the persons interested. And where the insurance is on property generally, it may be shown by parol that the plaintiff's intended that the policy should cover separate or joint property, or both. Foster v The United Ins. Co. 11 Pick. 85. وو Representations which are material to the risk may be shown to avoid the policy. 13 Mass. 100. The application for insurance is not admissible for the purpose of showing the intention of the parties, the policy itself bring the best evidence of the agreement of the parties Dow v. Whetten, 8 Wend. 160. Where in the margin of a policy on a ship at sea, it was written that she had been spoken with on the 27th Aug. parol evidence that a mem. was left with the insurers, with which it was intended the policy should conform, stating that it had been spoken with on the 20th, and that the 27th was inserted by mistake, was held to be inadmissible. Ewer v. Washington Ins. Co., 16 Pick. 502. The opinion of a person conversant with the business of insurance, on the question whether a premium would have been insured by the communication of particular facts, has been thought admissible as judgment in a matter of trade. Berthon v. Loughman, 2 Stark R. 258. But the reception of this evidence, though sanctioned by the decision of the Court of King's Bench, in the case of Rickards v. Murdock, and in some degree by the court of Common Pleas, in the case of Chapman v. Walton, 10 Bing. 57, is opposed to the opinion of Lord Mansfield, expressed in the case of Carton v. Boehm, ib., and of C. J. Gibbs, in the case Durrell v. Bedelry, Holt's R. 283. It was also discountenanced by Lord Kenyon. The conflicting decisions were cited, but the Court of King's Bench decided in the late case of Campbell v. Rickards, 5 B. & Adol. 840, that such evidence was inadmissible. "Witnessess," said Lord Denham," conversant in a particular trade, may be allowed to speak to a prevailing practice in that trade; scientific persons may give their opinion on matters of science; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties acted in one way rather than another. We think the jury are to decide on the materiality of facts, and the duty of disclosing them." The case of Chapman v. Walton, supra, does not appear to have been cited, though it appears to have been decided in the previous term, it was probably not reported. It was an action against a policy broken for negligence in not effecting a policy in the proper form, it appeared, that a valid policy had been originally effected, but alterations in the voyage were afterwards made and communicated to the plaintiff, which letter he transmitted to the defendant, as instructions, that corresponding alterations might be made in the policy; some alterations were, in consequence, procured by the defendant, but not sufficient to make the policy cover the altered voyage; it was held, that the opinion of brokers was admissible as to what was the duty of the defendant under the circumstances. "That," said Tindal, C. J., in delivering the judgment of the Court, "is a question of fact, the decision of which appears to us to rest upon this further inquiry, viz. whether other persons exercising the same profession or calling, and being men of experience and skill therein, would, or would not, (upon reading the letter,) have come to the same conclusion as the defendant." It is to be observed that this decision professes to proceed in some degree on the two cases which were overruled in Campbell v. Rickards, decided in the Kings Bench in the following term, viz. Barthon v. Loughman & Rickards v. Murdock. See Phil. ev. 5 Am. ed. p. 899 et seq. Policies cannot be contradicted, or varied, by any antecedent written agreement of the parties, or by parol evidence of what passed at the time of effecting the policy. Lewis v. Thatcher, 15 Mass. 431; Wilson v. Hanson, 3 Fairf. R. 58. Where there is a written contract, that must be abided by. The written date however is not conclusive evidence of the time of the transaction. This, when controverted and material, may be proved by extraneous evidence. Lee v. Mass. Fire & M. Ins. Co., 6 Mass. 219. Although policies of insurance are not technically specialties, not being under seal, they have nevertheless ever been deemed instruments of a solemn nature, and subject to most of the rules of evidence, which govern in the case of specialties. The policy itself is considered to be the contract between the parties; and whatever proposals are made, or conversations had between the parties prior to the subscription, they are to be considered as waived if not inserted in the policy or contained in a memorandum annexed to it. Per Parker, C. J., in Higginson v. Dall, 13 Mass. 96. Representations however of the state of the vessel, and giving a description of the voyage, may be proved by oral or written testimony, when the object is to falsify those representations; for many things material to the risk are stated in the application for insurance, which are not usually made a part of the policy; and it is a part of the law of insurance, that such representations may be so proved. ib. Warranties however must always be inserted in the policy, as also any agreements as to the policy being vacated on the happening of any event agreed on by the parties. ib. 7. Renewal of Policy. When the time for which the insurance was effected has expired and there is a provision in the policy that it may be renewed within a stipulated time: yet, it is necessary in order to render the continuance of the policy effectual, that the premium should be paid and accepted by the underwriters. The effect of such a contract, is only to give the assured an option to continue the insurance by paying the premium, at the time if the office should agree to accept it. Salvin v. Jones, 6 East, 571. A policy under seal contained a clause for its renewal without any charge for the policy by the payment of the premium:-Held, that an indorsement merely on the back of the policy was not such a renewal as would authorize the insured to sue an action of covenant for the breach of the contract :-It seems, however, that a different action would be sustained. Luciani v. American F. Ins. Co., 2 Wharton, 167. The payment of the premium in such case, has precisely the effect of an order to insure, and no more. By Gibson, C. J. in ib. 11 CHAPTER VI. WARRANTY, AND THE NATURE OF WARRANTIES. THE doctrine of warranties has been a more frequent subject of discussion in cases of marine policies, but so far as it is applicable to the subject, the doctrine of warranties is equally applicable to fire insurance. A warranty is a stipulation or agreement on the part of the insured, in the nature of a condition precedent, and as applicable to fire policies is usually of an affirmative nature, as that the property insured is of the nature described in the policy. (Ellis, p. 27, 28.) A breach of warranty will avoid the contract. The meaning of a warranty to preclude all questions whether it has been substantially complied with or not. If it be affirmative, it must be literally true; if promissory, it must be strictly performed. The breach of warranty, therefore, consists either in the falsehood of an affirmative, or the non-performance of an executory stipulation. In either case the policy is void, and whether the thing warranted be material or not, whether the breach of it proceed from fraud, negligence, misinformation, mistake of an agent, (unless the agent of the insurers,) or any other cause, the consequence is the same. With respect to the compliance with warranties, there is no latitude nor equity. The only question is, whether the thing warranted has taken place or not, or be true or not. If not, the insurer is not answerable for any loss, even though it did not happen in consequence of the breach of the warranty. Ellis, p. 28; See Ld. Mansfield's observations, Hibbert v. Pigou, 2 Park., 498; Marsh. on Ins. 375. Ld. Eldon's observations, Newcastle F. Ins. Co. v. Macmoran, 3 Dow. P. C. 255. An express warranty being in the nature of a condition precedent, it must appear on the face of the policy; therefore instructions in writing for effecting the policy, unless inserted in the instrument itself, do not amount to a warranty, Pawson v. Barnevelt, Dougl. 12, n., but only to a representation, upon which the doctrine differs, as will hereafter be seen. When a slip of paper describing the state of a ship, the particulars of the voyage, &c. was wafered to a policy at the time of subscribing, Ld. Mansfield held that this was not a warranty, or to be considered a part of the policy, but only a representation; Bize v. Fletcher, Dougl. 12, n., and where evidence was offered to prove that a written memorandum inclosed in the policy was always among merchants considered as a part of the policy, Ld. Mansfield held, that whether this was or was not a part of the policy was a question of law and therefore that such evidence could not be received, and that a written pa per, by being folded up in the policy, did not become a warranty. Pawson v. Barnevelt, Dougl. 12; 1 Marsh. 356. But it is sufficient that the warranty appear on the face of the policy, although not written in the body of it. If it be written in the margin, either in the usual way, (Bean v. Stupart, Dougl. 11,) or transversely, (Per Ld. Mansfield in Kenyon v. Berthon, Dougl. 12, n.,) it being part of the written contract when signed, it will be a good warranty. Although the language of the Judges in many cases has been that a warranty in a policy must be literally complied with, it has been held that a warranty to sail on a particular day was complied with, although the wind blew so that a sail could not be raised, and the master knew it was impossible to get the vessel to sea on that day, by his merely warping the vessel a little further down the river for the bona fide purpose of starting on the voyage insured, and putting the vessel in a better situation to proceed on her voyage to the port of her destination as soon as the wind would permit her to go to sea. Cochrane v. Fisher, 2 Cr. & M. 581; 5 Tyrwhitt's R. 496, S. C. on error. The latter court held, that a literal compliance with the warranty to sail on that day, was not necessary, if the vessel was, bona fide and in fact, started upon her voyage by warping her down the river upon the day specified in the warranty. It is a first principle of the law of insurance that when a thing is warranted to be of a particular nature or description it must be de facto that which was insured. However, it would be a sufficient answer, that the mistake or misrepresentation was to be attributed solely to the insurers themselves or their agent. 3 Dow. 255. Where the misdescription is not material as not affecting the rate of insurance—an agricultural building was described in a policy as a barn, though it was not strictly so:-Held, that the policy was not vacated. M. & M. 90. In Fowler v. The Etna Ins. Co., 6 Cowen, 673, the policy was on the stock in trade of the plaintiff, described as being contained in a two story framed house filled in with brick. It appeared in evidence, that the house was a wooden building with hollow walls, and not filled in with brick. Held, that the description was a warranty, and being a condition precedent, must be fulfilled by the assured, to entitle him to sustain an action on the policy, and negligence, mistake, or misrepresentation, would not excuse his failure in the strict performance of the condition, or entitle the plaintiff to recover. This case then, goes to establish the principle, that a misdescription in the body of the policy will vitiate the contract, whether it be fraudulent or not. A case in the House of Lords, (3 Dow. 255,) also held a warranty, being a condition precedent, whether it was material to the risk or not, was of no importance. And Lord Ch. Eldon distinguished between representations and warranties, stated it, as a first principle of the law of insurance, that a representation is open to inquiry into its materiality, and that if it should not be material, its inaccuracy, or a deviation from the tenor of it, may be excused; but that when there is a warranty, it is a part of the contract that the matter is such, as it is represented to be; and the materiality or immateriality, is, therefore, a matter of |