
    Charles Atherton versus Thomas Brown.
    Property was insured “ on board the Spanish brig JYew Constitution; ” the vessel was captured, and, with her cargo, was condemned as American property.
    It was holden that the description in the policy amounted to a warranty that the vessel was Spanish; and that it was not competent for the assured to show that the underwriters were informed, at the time of their subscription, that she was, in truth, an American vessel, and was to be ostensibly Spanish, for the purpose of avoiding capture by the enemy.
    Assumpsit on. a policy of insurance, whereby the defendant insured 200 dollars for the plaintiff, on “ property on board tht Spanish brig New Constitution, from the Havana to her port of discharge in the United, States.”
    
    in a case stated for the consideration of the Court, it was agreed that the plaintiff was interested to the amount insured by the policy in property on board the American brig Stranger, of Portland, which was at the Havana when news of the war between the United * States and Great Britain was received here; that, for the purpose of eluding capture by the enemy, the agent of the owners of the vessel and cargo, through the intervention of a Spanish house, procured papers for said vessel and cargo from the custom-house at the Havana, making the vessel ostensibly Spasiish, although still the property, in fact, of her original owners in the United States; and altered her name to the New Cosistitution, and put on board her a Spanish captain and crew. On her passage for the United States, she was captured and condemned, with the cargo on board.
    It was admitted by the defendant that the plaintiff’s agent, who procured the insurance, a credible witness, whose testimony could not be disproved, would testify, if admissible, that, at the time of effecting tbe insurance, he informed the defendant that the vessel on board of which the property was to be shipped was the brig Stranger aforesaid, and that her real American character was not to be changed; but that she was to be rendered ostensibly Spanish, for the sole purpose of avoiding capture by the enemy.
    Judgment by default or nonsuit was to be rendered in the action, as the opinion of the Court should be on the foregoing statement.
    
      Whitman, for the defendant,
    contended that the policy contained a warranty that the vessel was Spanish. Such was the obvious meaning of the words used. Such a warranty is to be fully and rigidly complied with. The fact is confessedly otherwise here. If this was made known to the defendant at the time of effecting the insurance, it is not competent for the plaintiff to prove that fact by. paroi evidence. If the fact had been communicated in writing, it would still be incompetent to show it. It ought to have been inserted in the policy, if the assured intended to avail himself of it. 
    
    
      Todd, for the plaintiff.
    The words relied on by the defendant, as constituting a warranty, were nothing more than a description of the vessel. It is observable, too, that the insurance here being only upon a part * of the hiding, and not upon the vessel, this description becomes still less material. In the case of Manly vs. The United Marine and Fire Insurance Company, 
       the vessel not being at the place mentioned at the commencement of the risk, was held to be an immaterial circumstance.
    The paroi evidence was only to rebut the imputation of fraud, and not to explain, construe, or contradict the written contract. Its admission, therefore, would not oppose any of the established rules of evidence. 
    
    
      
       12 Mass. Rep. 96, Higginson. vs. Dall.
      
    
    
      
      
        9 Mass. Rep. 87.
    
    
      
       2 Brown’s Civ. and Aim. Law, 300, 302.—2 Rob. Adm. Rep. 106. — 1 Rob. Adir Rep. 287.
    
   Per Curiam.

The question is, whether the words in the policy, viz., the Spanish hrig New Constitution, amount to a warranty that the vessel was Spanish; or whether they may be considered as merely descriptive of the vessel, or as the name of the vessel. We are of opinion that the description of the vessel, as contained in this policy, includes her national character, and that it amounts to a warranty that she was, in fact, a Spanish vessel.

Parol evidence of what was within the knowledge of the under writers was not admissible,

It being agreed that the vessel was not Spanish, but American, the warranty was not complied with; and the defendant is not liable in this action.

Plaintiff nonsuit. 
      
      
        [Ewer vs. The Washington Ins. Co,—Ed.]
     
      
      
        Vide ante, p. 106, Higgins vs. Livermore S P
     