It is sometimes difficult to discriminate between express warranties and representations; but it is important to do so. as the

(w) Pettegrew v. Pringle, 8 B. & Ad. 614; Lang v. Anderdon, 3 B. & C. 499; Graham v. Barras, 3 Nev. & M. 125, 6 B. & Ad. 1011; Risdale v. Newnham, 4 Camp. Ill, 3 M. & S. 466; Thompson v. Gillespy, 5 Ellis & B. 209; Hudson v. Bilton, 6 id. 665; Sharp v. Gibbs, 1 H. & N. 801.

(x) See Hore v. Whitmore, Cowp. 784; Bond v. Nutt, id. 601.

(y) Wright v. Shiffner, 11 East, 515; Cruikshank v. Janson, 2 Taunt. 301; Ridsdale v. Newnham, 3 M. & S. 466; Lang v. Anderdon, 3 B. ft C. 496.

(z) Moir v. Royal Exch. Ass. Co. 3 M.

& S. 461, 6 Taunt 241; Van Baggen v. Baines, 9 Exch. 628.

(a) Roelandts v. Harrison, 9 Exch. 444.

(b) Sharp v. Gibbs, 1 H. & N. 801.

(c) For the English authorities on this subject, see 2 Parsons, Mar. Law, 122.

(d) See Callaghan v. Atlantic Ins. Co. 1 Edw. Ch. 64; Kenyon v. Berthon, 1 Doug. 12, note; Colby v. Hunter, Moody ft M. 81; Blackhurst v. Cockell, 8 T. R. 360; Bulkier v. Derby Fishing Co. 1 Conn. 571; Bidwell v. Northwestern Ins. Co. 19 N. Y. 179.

rights and obligations created by representations differ in many respects from those which arise from express warranties. It is a general rule that every direct statement contained in a policy, and by that is meant whatever forms a part of the policy, is to be regarded as a warranty. (e) We may define a representation, in language used by the Supreme Court of the United States. It should be "an affirmation or denial of some fact, or an allegation which would plainly lead the mind to the same conclusion." (f) It may be made orally, or in writing, or by presenting a written or printed paper. And if it be false, and tends to obtain for the party uttering it the forming of the contract, or some advantage in the contract, it is a misrepresentation. And by the law of insurance, a misrepresentation, whether intentional or not, and whether fraudulent or not, discharges the insurers. (g)1

The representation may be drawn by inference from the words of the policy, as those words constitute a warranty only when they express a direct statement. Thus, if the policy says the * ship sailed between the 13th and 21st of September, this is a warranty. But if the language express that the vessel was expected to sail between the 13th and 21st of September, this is only a representation that the insured did not know that she had sailed before the 13th. (h)

It has been intimated, that the ground upon which misrepresentations discharge insurers is fraud, either actual or constructive. It is quite certain, however, that they have this effect whether made fraudulently or not. (i) Nor need it refer to a matter concerning which some representation is necessary. (j) It must, however, be material; that is, it must have the tendency, above spoken of, to induce the making of the contract, or to render its terms more favorable to the insured; (k) and if it were in reply to a distinct question of the insurers, this fact would go very far, and would be nearly, although perhaps not quite, conclusive, (l) in proof of its materiality.

(e) Bean v. Stupart, 1 Doug. 11; Kenyon v. Berthon, 1 Doug. 12, note; Jennings v. Chenango Co. Ins. Co. 2 Denio, 75; Glendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19; Routledge v. Burrell, 1 H. Bl. 254; Williams v. New England Ins. Co. 81 Maine, 219. And see Garcelon v. Hampden Ins. Co. 50 Me. 580; and Ripley v. AEtna Ins. Co. 30 N. Y. 136.

(f) Livingston v. Maryland Ins. Co. 7 Cranch, 506.

(g) Lewis v. Eagle Ins. Co. 10 Gray, 508; Anderson v. Thornton, 8 Exch. 425.

(h) Stewart v. Morison, Millar, Ins. 59. See also Hodgson v. Richardson, 1

W. Bl. 463,3 Burr. 1477; Reid v. Harvey, 4 Dow, 97 ; Seton v. Low, 1 Johns. Cas. 1; Palmer v. Warren Ins. Co. 1 Story, 360.

(i) Mr. Arnold, in his work on Ins. 495, contends that a misrepresentation avoids the contract on the ground of constructive or legal fraud. See also Pawson v. Watson, Cowp. 785; Cornfoot v. Fowke, 6 M. & W. 379; Elkin v. Janson, 13 M. & W. 658. But see 2 Duer, Ins. 647; 1 Phillips, Ins. § 537. However this may be, it seems well settled, that a false representation is sufficient to avoid the policy. Lewis v. Eagle Ins. Co. 10 Gray, 608; Anderson v. Thornton, 8 Exch. 425.

1 An innocent misrepresentation by an assured to an underwriter, that a ship is new, when in fact 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. Ionides v. Pacific Ins. Co. L. R. 6 Q. B. 674.

It may rest upon a previous fact, as if an insured obtains insurance from some party merely to decoy subsequent insurers into their bargain; this would operate as a misrepresentation and discharge the subsequent insurers. (m)

Concealment of facts which ought to have been stated, operates in the same way, and is subject to the same rule as misrepresentation; and therefore neither inadvertence, or mistake, or forgetful ness, (n) prevents its operation, if it be material. (o) There may, however, be this distinction. An innocent misrepresentation * or concealment discharges insurers, only when they were influenced by it; but if it were made intentionally and fraudulently, it would discharge them, although it had no effect upon the bargain. (p) If the ignorance is wilful or owing to the negligence of the insured, it is no excuse. (q) If the statement be, that a thing is believed to be so, or not so, and the belief exists, that satisfies the representation. (r) It has been said, that one who asserts that a certain thing is so, when he knows nothing about it, and the thing be not so, is affected by the assertion as if he had known it to be false. (s) This rule, if it be one, must have some qualification.

If the representation is true at the time it is made, that is gener(j) Sawyer v. Coasters Ids. Co. 6 Gray, 221; Lewis v. Eagle Ins. Co. 10 Gray, 506.