concealment, how proved. underwriter, and certainly the surest way of ascertaining this Materiality of is by the inquiry, what would have been the influence of the and fact of nonsame facts upon the mind of underwriters generally, and this disclosurecan only be known by the testimony of underwriters themselves and of those practically acquainted with their principles and modes of transacting business." (z) Boehm is not rity against re- of marine in surance. It is also highly deserving of remark, as Mr. Duer has Carter v. with much acuteness pointed out, that the great case of Carter v. Boehm, upon which, in point of authority, the opponents of the admissibility of this kind of evidence have mainly relied, was the case of an insurance of a peculiar and wholly unusual character; it was not on any marine risk at all, but against the capture by enemies of a fort in the East Indies in such a case as this it is obvious that the previous experience of the broker furnished him with no light or data to guide his judgment on the question proposed, so that the reason urged by Lord Mansfield against admitting his opinion in evidence, viz. " that it was mere opinion without the least foundation from any previous precedent or usage ;"-though a valid reason for rejecting the evidence in the case then before him, would not at all apply to the question of concealment in an ordinary marine risk; as to which an insurance broker or underwriter would undoubtedly have both previous precedent and usage as the foundation of any judgment he might form as to the probable opinion of others of his own profession upon the materiality of the fact concealed. § 213. Another important question is, upon which party does it lie to prove the non-communication of a material fact. Since the New Rules of Pleading, the defence of misrepresentation and concealment must be specially pleaded: in Upon which party does it lie non-communimaterial fact. to prove the cation of a Case of Elkin a case on a policy on ship" at and from Seville to London," effected on the 21st of February, a plea, framed in conformity Wels. 655. with this rule, alleged in substance, -1. That a bill of exchange for the ship's disbursements had been drawn by the captain at Seville on the 11th of January: 2. That it was (z) Duer on Representations, 191. Materiality of material that that circumstance should be communicated to the underwriters: 3. That it was known to the assured before effecting the policy: 4. That it was not communicated to the underwriters. The replication to this plea was de injuria. The evidence adduced at the trial clearly showed that the bill was drawn as and when alleged, and that the assured was aware of the fact before effecting the policy: the jury found a general verdict for the defendant; but in reply to a question from the judge, said they thought the drawing of the bill was a material fact for the defendant to have known (a), but that there was no evidence before them on which they could decide whether that fact was, or was not communicated to him. Upon this the learned judge directed a verdict for the plaintiff, with leave to move to enter it for the defendant on the issue raised by this plea. The court, on motion to this effect, were quite clear that on this evidence a verdict for the plaintiff could not be supported; but as they found it difficult to understand what the jury intended by their verdict, or what was the point put to them by the learned judge, they determined on the whole to grant a new trial. With regard to the question as to the burden of proof, the majority of the court were of opinion, that upon the allegations contained in the plea, the defendant was bound to give some evidence of the non-communication, at the time he effected the policy, of the fact which the jury had found to be a material one for him to know. With regard to the nature of the evidence, they were of opinion that very slender evidence of the non-communication of a material fact is all that can be required from a defendant in such cases. Thus, in the case before them,-as it appeared that the broker was himself ignorant of the drawing of the bill (the fact alleged to have been concealed); as, moreover, it was almost impossible to believe that the defendant would have insured the ship at all had he known, as he would from the date of the bill, that she must be regarded as a missing (a) Because, as such bill is never drawn till the ship is just ready to sail the date of the bill showed the time of the ship's sailing. concealment, how proved. Effect of the case of Elkin v. Jansen. ship when he was asked to insure her; -the court considered Materiality of that this was sufficient presumptive proof that the drawing and fact of nonof the bill had not been communicated, and that the burden disclosureof proof lay upon the plaintiff to establish that it had. (b) The result of this case appears to be, that, whenever it is proved to the satisfaction of the jury, that the assured, before the policy effected, was in possession of facts, which, if communicated, would, in all reasonable probability, have induced the underwriters either to decline the risk altogether, or to ask a higher premium than that at which the policy was actually effected, the fair presumption will be that the fact never was communicated to them; no direct negative evidence need be given in addition to establish that it was not; but the burden of proof will lie on the plaintiff to rebut, if he can, the presumption of non-communication, by giving affirmative evidence that the fact was communicated. (c) If, on the other hand, the fact known to the assured before effecting the insurance is not material to this extent, the burden of proof will be the other way; for in such cases there is no presumption arising from the nature of the fact itself, that, if communicated, the policy could never have been made on the terms upon which it was actually effected. In the United States it appears to have been decided generally in the Supreme Court of Massachussets, that the assured is not only bound to prove the materiality of the fact concealed, but also the negative that it was not disclosed. (d) In New York, on the other hand, the established practice casts the onus probandi on the plaintiff. (e) Mr. Duer considers (f), and I confess it appears to me, that the good sense of the matter is not to require any thing further from the underwriter in order to support the allegation of non-communication, than to show, 1. that the facts were known to the plaintiff before the subscription of the policy; Law as to this point in the United States. Suggested rule founded on sen. concealment, and fact of nondisclosurehow proved. Materiality of and, 2. that these facts were of such a nature that, if communicated, it is unreasonable to suppose that the underwriter would have taken the risk on the terms, which it appears, by the policy that he actually took it at. This surely ought to be considered sufficiently strong presumptive proof in the first instance of non-communication; sufficiently strong, that is, to put the plaintiff, in order to rebut it, on direct proof of communication. If this be so, it will follow, considering the meaning which the cases show to belong to the word material, that no direct proof ought to be required of non-communication of a material fact known to the assured before the execution of the policy. CHAP. III. OF EXPRESS WARRANTIES. IN treating of Express Warranties, we will consider the subject under the following heads: Sect. I. Of Express Warranties generally-their Form, Con- Sect. II. Warranties of Ship's Safety at a particular Time Sect. V. Warranty of Neutrality. Sect. VI. Effect of Foreign Judgments in proving a Forfeiture of Neutrality. SECT. I. Of Express Warranties generally — their Form, Construction, and Mode of Fulfilment. (a) ranties gene § 213. An express warranty is a stipulation inserted in writing Of express waron the face of the policy, on the literal truth or fulfilment of rally-their which the validity of the entire contract depends. These written stipulations either allege the existence of some fact, or state of things, at the time, or previous to the time, of making the policy, as, that the thing insured is neutral property, that the ship is of such a force, that she sailed on such a day, or was all well at such a time; or they undertake for the happening of future events, or the performing of future acts, as, that the ship shall sail on or before a given day; that she shall depart with convoy ; that she shall be manned with such a complement of men, &c. (b) (a) The student is recommended to ciples of the doctrine of express warconfine his attention to this first sec- ranties. tion, which embodies the general prin (b) Marsh. on Ins. 353. form, construction, and mode of fulfilment. Definition of an express warranty. P P |