
    HODGSON v. THE MARINE INSURANCE COMPANY OF ALEXANDRIA.
    A general poevery "person having an intething insured! and containing that the ' p'w' perty is nen tral, covers belligerent a« ■well as neutral property-covenant on. a policy, it is no that"the'0premium has not ¡^"enjoinedb)Ua courtof chan°e'Z misre resehtationi not material 'is no tarwaVaotion on a policy. A donatoShave that effect, ria'StobtheJn'sfc efjfte vayage. It'is not neaeuon^of covenant on a policy, that the declaration should aver tiff 'had ablíndoned to the underwriters,
    ERROR to the circuit court of the district of Columbia, in an action of covenant upon a sealed policy, whereby the Marine Insurance Company of Alexandria, in consideration of seventeen and a half per cent, premium paid by the plaintiff Hodg80n’ i°r u George F. Straas and others,' of Rickmondf covenanted with the plaintiff for the said u QeorSre p, Straas and others, of Richmond, as well . , . * - . . J , ’ c inhis ownname as for and m the name and names of all and every other person and persons to whom the same did, might, or should appertain, m part or m all,” to insure eight thousand dollars on the brig Hope “ a prize vessel,” lost or not lost,’ at and from her last port of lading in St; Domingo to a Port discharge in the Chesapeake. The vessel‘was valued in the policy at ten thousand dol^ars‘ The declaration averred the vessel to be of that value, and that in prosecution of the voyage inSüred she was seized by certain British vessels, and carried into Jamaica, where she' was libelled, conde'mned and sold, whereby she was totally lost. In one count of the. declaration the vessel was'averred to be the property of George ,F. Straas and Jeremiah Leeds, óf Richmond, in the other it w,as averred to be the property of Leeds alone.
    The defendants, after oyer, pleaded eight pleas, Up0n the three first there were issues in. fact. 1
    xhe 4th plea, ip substance, was, that the vessel, at the time ot the capture and sale was the property of the enemies of Great Britain, and as such was captured, libelled, condemned and sold. That Richmond was the capital town of the state of Virginia; k neutral state. That Straas and Leeds were of Richmond, and citizens of Virginia, and were known to be so to the parties to the policy at the time of insurance. That the insurance was made by the contracting parties upon the property of American citizens in which no belligerent- subject or citizen was interested; and that at the time of insurance, capture, condemnation and sale of the vessel, there was open war between France and Great Britain.
    To this plea there was. a demurrer, and the following causes were stated:
    1. Because the plea alleges that the vessel was the property of the enemies, of. Great Britain, but does not show in particular who were the owners thereof.
    2. Because the plea is double in this, 1st. That it tenders an issue upon the fact of its being enemies’ property; 2d. That it was condemned as such; 3d. That the insurance was made upon the property of American citizens.
    3. Because it alleges thait the insurance was made upon the property of American citizens, which is matter of law, and not of fact.
    4. Because, as the policy contained no warranty of neutrality, it is wholly immaterial whether the property was neutral or belligerent.
    5. Because the plea is no answér to the plaintiff’s declaration.
    6. Because it admits Straas and Leeds to be owners of the property insured, and to be American citizens, and it does not state any other person or persons to be the owners thereof.
    
      7. Because the defendants were estopped by the policy from alleging that the irisurañce was made Upon the proptery of American citizens.
    
      The 5th pleá, in, .substance,-.was, that it has always. been, and is the rulé and practice of the defendants, never to make an insurance upon a vessel beyond, her reasonable and just value according to-the representation and description given of her, especially as to her age, tonnage'and equipment, which rule and práctice were well known to the contracting parties at the time of the contract, at which time the'plaintiff-proposed to the defendants that the value of the vessel should be agreed in the policy to be ten thousand dollars; and that at the time of executing the policy, thcf plaintiff, to induce. the defendants to execute it, thereby-insuring to the- value of 8,000 dollars upon the' vessel, represented that she was u about 250 tons burthen” “ and from six to seven years old” That the defendants, >n cqnsequence of that represen-r taPon, and placing full faith and credit therein, exécuted the policy. 1 hat the representation was untrue in this, that the vessel \yas not of two hundred and fifty tons burthen, but less than one hundred and sixty,-five tons burthen., and was not from six to seven years old at the time of the representation, but much c lder, viz. more than eight and a half years old. That the vessel was not of the value of eight thousand dollars, but of the value .of 3,000- dollars only. That the misrepresentation respecting the age and/. tonnage of the vessel' induced the defendants to exe,cute the policy, whereby the value was .agreed, to be ten thousand dollars, and whereby insurance was made to the amount of 8,000 thousand dollars; “ and so the said deed is void as to them; and this they are ready to Verify ”
    
    To this plea also there was a demurrer, and the following causes were .stated: •
    1. Because the plea does not aver the misrepresentation to be material.
    2. Because it is not alleged to have been fraudulently made.
    3. Because the matter of the plea is not sufficient to annul or make void the policy.;
    
      4. Because the misrepresentation alleged is not of a definite fact ;' but that the vessel was qi'about 2.'J tons burthen, §tc-
    ^ 5. .Because the plea is double in this, that. it puts in issue the custom of the defendants, the representation touching the vessel, the age, the tonnage and . the value of the vessel.
    . 6. Because the defendants are estopped by the policy from averring that the vessel was of less value than-10,000 dollars.
    The 6th plea Was like the 5th, except that the averment respecting the rule and practice of the defend-ants ivas omitted, and thát it contained an averment that the difference between the true and the represented age and tonnage of‘the vessel.a was material in regard to the contract of insurance,” in the policy set forth; and so the policy was void as to them.
    To this plea the plaintiff, protesting that the vessel was seaworthy,'and that he'did not knowingly and fraudulently state any misrepresentation, and admitting that the vessel was of less thari 165 tons bur-then, and was eight and a half years old, replied, that the difference between the true and the represented'age and tonnage of the vessel, was hot material in regard to the seaworthiness of the vessel, arid Her ability to perform the voyage insured, ’and did not increase the prbbability of loss by means of any of. the risks insuréd against, but was nltogethey immaterial in regard to those risks.
    The rejoinder of the defendants set forth their rule and practice as stated in-the'5th plea; and averred that the -misrepresentation induced and de.ceived the defendants into the "agreement, as to the value of the vessel, and ás to the sum insured, and that the sum insured was more than double the value of the vessel,' and so the defendants sav-that the differerice between the true and the represented age and tonnage of the vessel was material.
    
      To this rejoinder the plaintiff demurred, and star, ted causes of demurrer nearly like those to the 5th plea.
    The 7th plea was, in substance, ' that the vessel was in part owned by one Alexander Burot, a French' citizen, and an enemy of Great Britain, and that this fact was not disclosed to thé defendants at the time of executing the policy.
    To this plea there was a general demurrer.
    The 8th plea was, in substance, that the plaintiff had not paid the premium, but had obtained a perpetual injunption from the court, of chancery in Virginia, against the defendants, to prevent the recovery thereof.
    To this plea also there was a general demurrer.
    The judgment of the court below was in favour of the defendants on the demurrer to the 6th plea, and in favour of the plaintiff upon all .the other demurrers.
    Swann, for the plaintiff in error.
    It is a sufficient answer to the 4th plea,, that the policy is general; it contains no warranty of neutrality, and therefore covers belligerent as well as, neutral property. 1 N. Y. T. Rep. 230. 238. 243. 2 Emerig. 460. Doug. 16. Marsh. 286.
    The objections to the 5th plea are,
    1. That no misrepresentation touching the subject of a sealed contract is sufficient, ín a court of law, to set it aside.
    The insurance cases against incorporated companies in England show that an equitáble defence may be made in that country under the statutes.. All other cases upon insur. .ices are cases' of simple con tract.,
    
      This question then depends upon the general principles of the common law. By that la\v a misrepresentation touching the subject of a sealed contract was not pleadable against that contract.
    It is true that any fraud in the execution of an. instrument which will authorize the plea of non est factum, may be relied on at law. 1 Burr. 391. So you may show; that the consideration of a . deed is unlawful,'as in the cases of usury, gaming, simony, &c. But this plea show? no fraud, nor unlawful consideration. It relies merely upon a- mistake which goes only to. a part of the subject matter of the contract.
    2. The misrepresentation set forth in' this plea would not be sufficient to vacate the policy, even if it were a simple contract. The misrepresentation must relate to the risk, aiidibe material as it regards the risk. All the cases speak a uniform language upon this subject. Marsh. 334, 335. Park, 197. 204, 205. 1 N. Y. T. Rep. 237, 238. 245.
    If the representation must be material in regard to the risk, the plea is bad in substance; because it does not'show any facts which would increase the risk, nor aver the representation to be material to the risk.
    3. As the misrepresentation relates to the value of the vessel, and not to the risk of the voyage, the defendants are estopped from, alleging that the vessel was worth less than the value agreed upon, in the policy.- '
    4.. In a, Valued policy the underwriter waives all-inquiry into any fact or circumstance that relates . to the value of the thing insured : and the extern;. or amount of value in such a policy. is altogether immaterial. Park, 1. 109.
    The 6th ’plea concludes by saying that the representation was material in regard to the contract of insurance.
    
    This averment is difficult to be understood. It might mean material as it regarded the amount insured, or ’ material as it regarded the risk. . If issue had been taken-upon this averment, the jury ■might have decided that the representation was material as. it regarded the amount insured; and upon that ground' the cause might have been lost. If ■the plaintiff had demurred to it, it-might have been an admission that-it was material to the risk. If the averment had been that it was material as to the amount insured, we should have demurred; if it had been that it was material to the risk, we should have taken issue.
    in this uncertainty it was necessary for the plaintiff to reply specially^ tendering an issue as to the materiality of the representation in regard to the risk of the-voy age. This issue the defendants refused to join, áiyl? have thereby -^explained their averment to be that the representation, was material, not to the risk, but to the amount insured. In this point of view it is bad not only for the reasons alleged against the 5th plea, but because it neither shows nor avers the representation to be material in regard to the risk.
    No falsehood or misrepresentation, not increasing the risk, is material. No misrepresentation touching the ability of the vessel to' perform the voyage cari be material if she is seaworthy. The law does not notice grades of. seaworthiness; and with regard to this point her age and tonnage were perfectly immaterial: and it was equally immaterial ás to the value, because the value was conclusively fixed in the policy.''
    
      E. J. Lee and C. Lee, cofitra,
    contended, 1st. That the expression “ of Richmond” implied a warranty that the property was neutral, and the condemnation was conclusive evidence of a- breach of that warranty. 2dly. That the declaration was badbecause it contained no averment of an offer, to abandon; and, 3dly. Thut the misrepresentation, as stated, amounts to a fraud in law, and that fraud,will vacate every kind of instrument; and that in all cases of insurance any misrepresentation material to the contract is fatal.
    It is because it is a valued policy,.that the misrepresentation'ás to the age and tonnage became material to the contract.. It was a misrepresentation of those facts upon which a judgment was to be formed, of the value of the vessel. The defendants never would have agreed to fix that value, unless they, had believed the representation of the . plaintiff ..as to those facts. The misrepresentation induced the defendants to make a' contract, which they would not otherwise have made. It is unnecessary that the plaintiff should have known that he was; misrepresenting the facts.
    . He • Undertook to represent the fácts, and by ,ao doing must take the risk of their truth, and the consequences, of thqir falsehood.
    The materiality was a. question for the jury. Whenever the question of law is involved with the fact, the court m^y leave the whole to the jury.
    The plea; ,is not double. A misrepresentation mqy be in a variety,of particulars necessary for the formation of a correct judgment as to the value.
    .The defendants are not estopped by ,their de<fd from alleging facts which show the mistake, or misrepresentation upon* which the instrument was. predicated; because if the deed be void the estoppel cannot exist.
    If the gqods of an enemy be insured as the goqds of an ally,’the policy is void. ' i he only question On this point is, whether the vessel was insured as an American vessel.
    
      The payment of the premium is for ever enjoined» and nothing, can be more unjust than to compel the-defendants to pa}7 the loss.
    The following authorities were cited by the counsel of the defendants. 1 Rob. 11. 13. 1 Burr. 397. Shep. Touch. 58, 59. Chitty on Bills, 8, 9. 3 Bro. Park. Cas. 525. Smith's Rep. 289. 2 P. Wms. 154. 157. 220. 287. Marsh. 339, 340. 346. Doug. 260. Marsh. 199. 201. 586. 2 Wils. 347. 1 Fonb. 230. 5 Com. Dig. tit. Pleader, 2 W. 18. 3 T. R. 438. Hayne v. Maltby. 2 W. Bl. 1152 Co. 129. Gilb. Ev. 163. 2 Vent. 107. Bull. 173. 1 Mod. 477. 1 Wooddeson, 207. 3 Burr. 1918. Carter v. Boehm. Park, 182. 1 N. Y. T. Rep. 229. Barnewall v. Church. Doug. 260, 261, 262. McDowell v. Frazier. 1 W. Bl. 593. Carter v. Boehm. Millar, 57. Park 209. Marsh. 208, 209. 350. Stewart v. Dunlop. 2 East, 452. Williamson v. Allison. 4 East, 590., Haywood v. Rodgers. Marsh. 540. Le Cras v. Hughes. 3 Cranch, 281. McFerran v. Taylor & Massie. 1 Ves. 213. 4 Dall. 250. Doug. 96. 2 Wils. 352. Collins v. Blantern. 1 Vent. 121. Doug. 30. 2 Wils. 8. Long v. Jackson. Skin. 327.
    
      Jones, ■ in reply,
    was directed by the court to confine his observations to the 5th and f¡th pleas.
    No fraud of covin is charged in either of those pleas ; the Adoctrines, therefore, fespecthig a sealed instrument being vacated by fraud, do not apply. The case depends upon the principles of the common law applicable to contracts under seal. •
    Tlje 5th and 6th pleas are ' in substance the same; and if the 5th be bad, as the court below, decided, the 6th.must be bad for the same reasons.
    There is no. case in which a sealed instrument has been set aside on the grounds alleged in the' plea. If the facts would not maintain an action of deceit, they will not avoid a- contract under seal. They cannot even be given in evidence. It must be a matter that goes to the -whole contract,-and shows it to be void ab initio. It must be an allegation ■fraud,'or of illegal cónsideration.
    
    The case qf Hayne v. Maltby, 3 T. R. 438. is the only one cited which bears upon the present. But there the, contract was void ab initio, and the case was decided upon the principle of fraud. It*is immaterial what the -facts of the case were, or how slight the evidence of fraud was. It is the principle only which is to be considered.
    In an action at law upon a sealed contract you cannot go into the question of consideration, but to show ' it fraudulent or illegal. 2 Cro. 4. Chandler v. Lopus. 1 Com. Dig 184. 2 East, 446.
   February 24.

Cushing, J.

{Marshall, Ch. f. not sitting in the cause) delivered the opinion of the court,* as follows :

The insurance in this case being general, as well for the parties named ás “ for all and every other person or persons to whom the vessel did or might appertain,” and containing no warranty of neutrality, belligerent: as well as American property was covered by it., Some of .the párties being described as of Richmond, does not necessarily imply that they all resided there ; but if they did, mere.residence would not make them citizens; and even then, an express warranty was necessary, if it had been designed to run only a neutral risk. This is an-answer to the 7Íh as -well -as to the 4th /plea; because there can-lie no undue- concealment as to the parties interested, where the terms of the policy are so broad as to preclude the' necessity, either qf disclosing their names, or of inserting them in the instrument.

Vreserit; Cushing', Washington, Livingston and Johnson, justices.

The eighth plea is also bad. The defendants acknowledge, under seal, to have received a consideration of lif 1-2 per cent, for the insurance they made, which it appears was secured by a note, the amount of which was to be deducted from the sum to be paid for a loss, if any happened. On the face of the instrument, then, a valid consideration, if that' be necessary, is stated, and if the note be never paid it cannot vacate the contract, or be relied on as a defence to an action on it. This Court knows not why a court of equity has been applied to . fbr an injunction. Its proceedings, therefore, can have no influence on the present suit, for notwithstanding its interposition in .the way mentioned in this plea, the defendants cannot be deprived of the right they have' reserved of deducting the amount of premium from whatever' sum they - may have to pay for the loss that has occurred.

Without deciding whether a material misrepresentation, not fraudulent, can be pleaded in avoidance of a! sealed instrument, the court thinks there is no fact disclosed by either the fifth or sixth plea, which could vacate an insurance were it only a simple contract. In no part of the 5th plea is the misrepresentation alleged to be material. It is only to be. inferred that it had some influence (but to what degree does not appear) in prevailing on the defendants to agree to so high a valuation. It will hardly, however, be insisted, that every over-valuation, however inconsiderable, or however innocently produced, will annul a contract of this nature. It would seem more reasonable, to let mistakes of this kind (if they are to haye any operation at all) regulate the extent of recovery, and not deprive the party of his whole indemnity: for if an extravagant valuation be made, an underwriter cannot reasonably ask to be relieved be'yond the excess complained of. The .allegation that the vessel was worth, when insured, oply 3,000 dollars, is also very unimportant, it being nowhere stated that the plaintiff represented her to be worth more,. but only proposed that her' value in the policy should be agreed at ten thousand dollars. Now although she might not in fact have been worth this sum, it.is itnpossible for the court to say that this difference was producéd entirely by the mistake which was made in her age and tonnage. This would be to say that a. difference of a year or two in the age, and of fifty or sixty tons in the burden of a vessel, must, in all cases, have the same effect on her value; a conclur sion which, on investigation, would be found very incbrrect. Nor, if it appeared on trial, that her actual worth were no more than 3,000 dollars, would it necessarily avoid tl>e. contract, or restrict the damages to that sum; for she may, notwithstanding, have-fairiy cost her owners the whole amount of her valuation; who, in,that case, would have honestly represented her as worth 10,000 dollars.

But a more fatal objection to this plea is, that .die misrepresentation relied on is not stated to have been material to the risk of the Voyage; and yet the only cases in which policies have been avoided for innocent misrepresentations' kre those in which the matter [disclosed Or concealed has affected the risk, so ás to render it' different from' the one understood at the time, and On which the premium was ^calculated.

Most of the,remarks on the 5th apply also to the 6th plea i for although it be here alleged that, the misrepresentation was material “in regard to the contract o.f insurance,” it should have been , stated in what particular, that it might appear whether . the risk run were at all affected, by it.

Art objection is made to the declaration, but not much relied on, that no abandonment is averred to have been made; . In covenánt such averment, cannot be necessary^ . If it be proved on the trial, it ' will be sufficient.

The judgment of the circuit court on the 4th, 5th, 7th and 8th pleas must be affirmed with costs; •and its judgmehtin favour of the defendants on the 6th plea reversed; and judgment on that plea be-also rendered for the plaintiff.

Johnson, J. The difficulties in this case arise partly from the pleadings, and partly from the case presented by the pleadings.’

This policy, having been effected by a corpora-, tion under its, corporate seal, has been considered as imposing an obligation' on the insured to bring covenant instead of assumpsit, as is usual on such contracts.

Thus the defendants haye been obliged to plead specially; and the cause comes up on demurrer, which, of course,’ admits the case as made upon the pleadings.

Whether there, is sufficient matter well pleaded . why the plaintiff ought not to recover ? is therefore the question before us.

I am of opinion that there, is. I cannot for a moment suffer the sealing of the policy, or the form of the action, to impose any restriction upon the latitude of defence applicable to The contract of insurance. Such a doctrine would be fatal to every incorporated insurance company. I therefore maintain, that, in the action of covenant’ on a policy of insurance, every defence may ,be taken advantage of, in pleading, that could be introduced, in-evidence, before a jury. It is an .exceedingly inconvenient .form of action fpr trying the merits of. questions arising out of this'.species of contract, and I feel disposed, if possible, to diminish the inevitable difficulties, arid the intricate and voluminous pleadings, which must grow out of this form of action, andi to admit every facility which the -rules of pleading will possibly sanction-. •

Theré are eight pleas filed to the present, action. On the. three first there are issues in fact, and the court below has given judgment o'n- the remaining five. I am disposed to concur in,their decisions on each of. these several .pleas, although, perhaps, on Some of them, for reasons not altogether the same • with those by which they were influenced; but Í shall confine my observations solely to the sixth plea, as that disposes, of the case finally, if decided for the defendants, and has been the principal subject of the . argument before' this court.

,The substance of this plea is-,' that the plaintiff misrepresented the age and tonnage -of the vessel, whereby the defendants were' induced to insure tp a higher amount than they otherwise should; and concludes with averring, that the difference between the true age and tonnage of the vessel,-and the repré- • sented age and tonnage, was material iñ regara to the contract of insurance.

The plaintiff replies .that this misrepresentation was immaterial in regard to the seaworthiness .oí the vessel; her abihty to perform the. voyage, and the other risks insured against. •

To me it appears that'the plea presents the true turning point of the case, and that tbe replication draws towards questions' very, different from that which ought to control 'our decisions.

It is not on the doctrine, of seaworthiness that a misrépresentation is held to vitiate the policy, because the insured ! is always held to guaranty the sufficiency of his vessel to perform the voyage insured* Ñor is it an evident and necessary increase •of the risk; but it is presenting such false lights to the insurer, as induce him ¿to enter into a contract materially different from thaf which he supposes he is entering into. It is a rule of law introduced te protect underwriters from those innumerable frauds which are practised upon them in a contract which must of necessity be regula ted almost wholly by the-information derived from the insured.

I do not lav so much stress ' upon the misrepre- ‘ sentation with regard, to the age of the vessel; for that appertains much to her seaworthiness; but with regárd to her -size the misrepresentation was so enorme b as leaves no doubt upon , my mind that had tht case been .submitted to -a jury, the court would have been bound to charge them in favour of the. defendants. It had in its nature an immediate tendency to entrap the defendants into one of the most common and most successful snares, laid for the unwary underwriter, To make it the interest of the insured rather to sink than .to save.-his vessel. It can' very well be conceived ..that ap underwriter, maybe induced, to insure a certain sum upon a certain-vessel for a very moderate premium, when no premium would induce him to insure double . that amount upon the same bottom. I am aware of-a very considerable difficulty arising out of this case, viz. how we.are to estimate the degree of misrepresentation with regard to tonnage which shall vitiate . a policy ? but it. is a difficulty arising out of the mode in which, we are drawn into á decision on the case, rather .than, out of the case itself.

If this question had been brought before a jury, the difficulty would have vanished; but. shall the party - lose the benefit of this 'defence because the pleadings have assumed such a shape as to force the court into a decision upon the point without a jury ? I am of opinion that he ought not, if it can be avoided; an extreme case may.be supposed in which the misrepresentation may • be very inconsiderable, as of a single ton for instance; but, on the other hand, we may suppose1 an extreme case of a misrepresentation to the highest possible number of tons burden, • say 1,000 tons; will it be said that,-in the latter case, the misrepresentation wo’uld not avoid the policy i

From these considerations if seems to result that the epurt is driven to the necessity, of deciding this -case, upon its intrinsic merits, and reserving its opinion upon successive cases as they shall occur. This necessity is forced upon us by the alternative' either-to decide that no misrepresentation, however gross, of the size of the vessel will avoid a policy, of that any misrepresentation, however' minute, will have that effect. It is to be hoped, in the mean time, that, some statutory provision may be made, which will relieve the court from a similar embarrassment.

Judgment reversed. •  