the ship, but referring to a former letter from the master on Sect. 565. the same subject, which was not exhibited; the Court held that the mention of the former letter, in the second, ought to have put the underwriters upon an inquiry as to the nature of the first communication, and that they were not entitled to complain of the suppression of the first letter as a concealment (g). sentation reference Chaurand v. 566. The words of a representation, equally with those of When reprethe policy itself, must, if technical or of peculiar mercantile must be conimport, be construed with reference to the usage of trade. strued with Thus, where it was represented that a ship was to sail "in the to usage. month of October," evidence was admitted to show that this, Angerstein. by the usage of trade, meant that she was to sail "between the 20th of October and the 1st or 2nd of November;" and as she actually did sail on the 11th of October, this was held a failure to comply with the representation that avoided the contract (h). tion refers generally to the time of making the contract. 567. It is an established rule with regard to representa- Representations, that they must be taken to refer to the time when the contract was made; and the time when a slip is initialed is now, in accordance with the practice in underwriting, deemed to be the time when the contract is concluded. Every representation is construed to mean that the facts represented are then true, and that no other material facts are then known to the assured. What has been stated before this time is liable to be qualified or controlled by what passes at such time. doctrine. Formerly the practice to consider the contract binding as Former soon as the slip was initialed was not recognized by the Dawson Courts, and the material time, in questions of misrepresenta- v. Atty. tion or concealment, was the time when the policy was subscribed. Thus, where a broker stated to the underwriter, when the slip was subscribed, that the ship was an American, but afterwards, when the policy came to be signed, said (9) Freeland v. Glover (1806), 7 East, 457. (h) Chaurand v. Angerstein (1791), Peake, N. P. 43. Edwards v. Footner. Sect. 567. nothing of the sort, but only "that it was an insurance on goods by the 'Hermon,"" without a word as to the national character of the ship, Lord Ellenborough and the Court of King's Bench held that the assured was not bound by the former representation, that the ship was American (i). A representation, however, made at the time of signing the slip was afterwards held by Lord Ellenborough to be binding in the absence of evidence of its being subsequently altered or withdrawn, either expressly or by implication. Hence, where the broker, at the signing of the slip, stated that the ship would sail under convoy and with a certain armament, this was held binding, there being no evidence of any further conversation on the subject having passed between the parties, either when the policy was signed or in the intervening period (k). Christie v. Now the initialing of the slip concludes the contract. Where, at the time of signing the policy, the broker spoke of the ship as an American, but said he was directed not to warrant anything, this was held to amount to a representation that she was an American, and to make it necessary for her to have all those documents on board that an American ship ought to have (1). 568. The initialing of the slip was always among merchants regarded as the making of the contract, and since the statute 30 Vict. c. 23, the Courts have recognized this course of business (m); and accordingly it is held, that after the initialing of the slip any fresh fact coming to the knowledge of the assured need not be communicated to the underwriters, however material it may be (n). (i) Dawson v. Atty (1806), 7 East, 367. This, says Mr. Maclachlan, is a remarkable decision, as there was nothing to qualify or cancel the first statement. Lord Ellenborough, however, continued of the same mind when Edwards v. Footner was before him, and this case was referred to and approved of by him. (k) Edwards v. Footner (1808), 1 Camp. 530. (1) Christie v. Secretan (1799), 8 T. R. 192. (m) Ante, s. 34. (n) Cory v. Patton (1872), L. R. 7 Q. B. 304; (1874) L. R. 9 Q. B. 577; Lishman v. Northern Maritime Ins. Co. (1873), L. R. 8 C. P. 216; in the Exch. Ch. (1875), L. R. 10 C. P. 179. So also any misrepresentation made after the agreement Sect. 568. for the insurance, as by the signing of a slip, will not avoid the policy, for it did not influence the underwriter in accepting the risk (0). Pacific Fire, A broker agreed with an insurance company for an open Ionides v. policy for £5,000 on hides by ship or ships, to be declared, &c. Ins. Co. and the slip was signed. Hides to the value of £2,455 were shipped on an old French ship called the "Socrate." There was a new Norwegian ship called the "Socrates," and the broker, believing this to be the ship on which the hides were shipped, made a statement to that effect and wrote out a second slip for a policy for £2,455 on hides per the "Socrates," to be issued in respect of the agreed insurance, and in the policy the hides were described as shipped on the "Socrates." It was held that a representation that a ship is new when she is old will vitiate a policy on goods on board of her; for the age of the vessel must be material in considering the premium. The Court, however, decided that in the present case the misnomer was of no consequence, as the company had bound themselves to insure hides on board any ship selected by the assured, and the representation was subsequent to the agreement for the insurance (p). It therefore had not influenced the underwriter in making the contract. tract con 569. The assured, it has already been said, is at liberty Representabefore the contract is concluded to withdraw or qualify any withdrawn tion may be previous representation, by which he does not wish to be before conbound. It has been held that when the underwriter has, cluded. after initialing the slip, become aware that material facts have not been disclosed to him, and has afterwards executed a policy without protest, he is not estopped from setting up the defence of concealment (q). The reason is, that an underwriter who has initialed a slip is in honour bound, according (0) Ionides v. Pacific Fire & Marine Ins. Co. (1871), L. R. 6 Q. B. 674; in the Exch. Ch. (1872), L. R. 7 Q. B. 517. (p) Ionides v. Pacific Fire & Marine Ins. Co., supra. (2) Morrison v. Universal Marine Ins. Co. (Exch. Ch.) (1873), L. R. 8 Ex. 197. Sect. 569. to the practice of underwriters, to execute a stamped policy, if only to enable the assured to sue him. It seems to follow that when a misrepresentation has been corrected after the correction of slip has been initialed, the mere fact that the underwriter Effect of issue of policy after misrepresentation. What diligence necessary in correcting misrepresentation. Misrepresentation to the first underwriter extends to all. has executed a policy is not in itself enough to prevent him from claiming to avoid the contract on the ground of the misrepresentation. It must depend on the circumstances of the particular case whether the underwriter has in fact elected to treat the contract as a binding one, or whether he is estopped from saying that he has not so elected (r). 570. A representation should be forthwith corrected in case there be reason to suppose that it cannot be sustained as made. Thus, where the agent of the assured, after hearing of the loss of the ship, allowed the post to go with his previous letter uncontradicted, inducing others to suppose that she was safe when the post left, such omission was held to amount to a misrepresentation, on the part of the agent, which avoided the policy (s). It has been held in the United States, but before the days of the electric telegraph, that although the assured or his agents are bound to act with promptitude and despatch in countermanding an order for insurance founded on false intelligence, they are not bound to resort to extraordinary means of communication for this purpose; they need not send an express unless that be the usual mode (t). 571. Where there are several underwriters to the same slip or policy, a representation of a material fact to the underwriter whose name stands first extends to all the rest, so that each, when it proves false, may avail himself of the defence. The ground of this rule is the reasonable presumption that the (r) See ante, ss. 523 et seq. (s) Fitzherbert v. Mather (1785), 1 T. R. 12. The editors have already expressed the view that this case is one of concealment rather than of misrepresentation. Ante, 8. 553, note (i). (t) See Greene v. Merchant Ins. Co. (1830), 10 Pickering, Mass. R. 402; M'Lanahan v. Universal Ins. Co. (1828), 1 Peters, S. C. R. 186; 1 Phillips, s. 561. See, however, Proudfoot v. Montefiore (1867), L. R. 2 Q. B. 511. others subscribed from the confidence reposed by them in the Sect. 571. skill and judgment of him whose name stood first, and their belief that he had duly ascertained and weighed all the circumstances material to the risk (u). This rule, however, Limitations is subject to many limitations. on this rule. extends to tions per insurance. It must strictly be confined to intelligence relating to the (1) It only proposed insurance, with regard to which it is reasonable to representasuppose that the first underwriter would require information, tinent to and without being informed of which, it may be presumed, an ordinary he would not have accepted the risk. It cannot, therefore, extend to such representations as relate to matters of collateral agreement, which a subsequent underwriter can have no reason to infer, from the terms of the policy, to have been communicated to the first. Thus, in Pawson v. Watson, Lord Mansfield held, that a representation that "the ship mounts twelve guns and twenty men," being in effect an engagement that the ship should sail with that armament, could not affect subsequent underwriters, to whom it had never been communicated, merely upon proof that it had been made to the underwriter whose name stood first in the policy. "A representation to the first underwriter," says his Lordship, "has nothing whatever to do with that which is the agreement or the terms of the policy; no man who underwrites a policy subscribes, by the act of underwriting, to terms of which he knows nothing, but he reads. the agreement and is governed by that: matters of intelligence, such as that a ship is or is not missing, are things in which a man is guided by the name of the first underwriter, who is a good man, which another will therefore give faith and credit to, but not to a collateral agreement which he can know nothing of" (x). Of course, if the representation to the first underwriter be (u) The English cases which establish the rule are Pawson v. Watson (1778), 2 Cowp. 785; Barber v. Fletcher (1779), 1 Dougl. 306; Stackpole v. Simon (1779), 2 Park, Ins. 933; Marsden v. Reid (1803), 3 East, 572; Feise v. Parkinson (1812), 4 |