facts which are of themselves always and necessarily material, so there are not many which may not be made so by the circumstances of the case. Hence, too, another rule which has already been intimated; which is, that the assured must make true answer to all questions which the insurer may put to him. These may undoubtedly be so irrelevant or frivolous as to deserve no answer, and such that they cannot be considered material; but in general the insurer may determine for himself what he needs to know in order to estimate the risk aright.1 Upon the question, not of law, but of fact, whether any information not communicated by the insured was actually possessed by him, it may be said that intelligence left at his counting-room in season for him to receive it, has been held to be notice to him. But he may, we think, rebut any such presumption by proof of actual and honest ignorance. The whole object of the rules as to representation, misrepresentation, and concealment is to enable the insurers to judge accurately of the risk they undertake. Hence, the first exception is, that nothing need be communicated to them which they know, however their knowledge may have been acquired.3 And 1 Thus, if in answer to the question, "when is the vessel expected to sail?" the party seeking insurance should give the time when she had left another port for the port in question, this would be a material concealment, if at the time he knew when she was expected to sail from the latter port. Himely v. South Carolina Ins. Co., 3 Const. R. 154. See also, ante, p. 162, n. 3. 2 Byrnes v. Alexander, 1 Brev. 213. 3 Thus, in Carter v. Boehm, 3 Burr. 1905, 1910, Lord Mansfield said: "There are many matters as to which the insured may be innocently silent. He need not mention what the underwriter knows— scientia utrinque par pares contrahentes facit. An underwriter cannot insist that the policy is void, because the insured did not tell him what he actually knew; which way soever he came to the knowledge. The insured need not mention what the underwriter ought to know; what he takes upon himself the knowledge of; or what he waives being informed of. The underwriter needs not be told what lessens the risk agreed and understood to be run by the express terms of the policy. He needs not be told general topics of speculation; as, for instance, the underwriter is bound to know every cause which may occasion natural perils; as the difficulty of the voyage, the kind of seasons, the probability of lightning, hurricanes, earthquakes, etc. He is bound to know every cause which may occasion political perils; from the ruptures of States; from war, and the various operations of it. He is bound to know the probability of safety, from the continuance or return of peace; from the imbecility of the enemy, through the weakness of their councils, or their want of strength." There can be no, concealment when both parties have an equal opportunity of acquir all those matters which are of common and general knowledge, or which it is the peculiar business of insurers to know, will be ing knowledge of the fact. If, therefore, the party wishing insurance puts into the hands of the underwriter the letter of the captain which contains the information, the underwriter cannot set up ignorance of the fact. Vasse v. Ball, 2 Dall. 270, 275. It was held, in one case, that intelligence posted up at Lloyd's was presumed to be known to the London underwriters. Friere v. Woodhouse, Holt, N. P. 572. But in Elton v. Larkins, 8 Bing. 198, 5 Car. & P. 86, it was held, that where the intelligence was contained in the foreign lists at Lloyd's, which lists the underwriters were not accustomed to examine, except under peculiar circumstances, the assured should communicate such intelligence if material. And, "if a party subscribe a policy, relying on the representation of the person who comes to effect it, which representation is not consistent with the list, then the list at Lloyd's is no answer to it, because, though the underwriter may have access to such list, and may be presumed to have access to it, where there is nothing to mislead him, yet there may be something upon which he relied that misled him; and where it is manifest that if he had adverted to the list he never would have taken the premium in question, it appears to me that in such a case the presumption that he had looked at the list is entirely rebutted; and it must be considered, in this case, that though he might have looked at the list, he did not, but relied on the representation made to him." Per Lord Abinger, C. B., Mackintosh v. Marshall, 11 M. & W. 116. Lloyd's list is evidence against the assured if he is shown to have read it, otherwise not. Bain v. Case, 3 Car. & P. 496. The question has arisen whether marine intelligence, published in the newspapers taken at the office of the underwriters, need be stated. In Dickenson v. Commercial Ins. Co., Anthon, N. P. 92, it was held that it must be. But this case turned somewhat on its peculiar circumstances. The plaintiff had applied at one office before he applied to the defendants, and was refused on account of the news in the Gazette. The defendants took the risk at the usual rate, and the court held, that the news should have been communicated. In Green v. Merchants' Ins. Co., 10 Pick. 402, 406, Shaw, C. J., said: "It may be very true that underwriters are not, under all circumstances, to be presumed to be acquainted with all the intelligence contained in the papers taken at their office. But the general presumption is, that the agents of the office will examine, with some care, those items of marine intelligence, which are expressly designed, speedily to diffuse information upon a subject so immediately interesting to them, especially in relation to vessels belonging to their own port. . . . . The court are, therefore, all of opinion that the evidence was rightly admitted, and that it was properly left to the jury as a fact, to decide whether this paper had been received and its contents known at the office; and also, whether the information in the Gazette was the same as that contained in the plaintiff's letter. If so, they were rightly instructed to consider the circumstance that such letter was not produced, immaterial." See also, Alsop v. Commercial Ins. Co., 1 Sumner, 451. In Stoney v. Union Ins. Co., 1 Harper, 235, 3 McCord, 387, nom. Money v. Union Ins. Co., 4 McCord, 511, the offer for insurance contained the following clause: "Every circumstance material for the underwriters to know so as to form a just opinion of the risk is stated in the above offer." The question was raised whether the underwriters were discharged by the neglect of the assured to communicate intelligence which was contained in papers taken by the underwriters. It seems to have been held by the court, on the first two presumed to be known to them. It is extremely difficult to classify the numerous cases on this subject, so as to draw general rules from them, because they are so diverse in their specific facts. But we give, in the notes below, all of them not elsewhere cited, which we think would be found instructive. Therefore, the existence of public wars, or in general, any public political intelligence,2 usages of trade, the local situation or peculiar character or extent of a port mentioned or intended, or the fact of there being no pilots,5 need not be stated. trials of the case, that the above clause amounted to a declaration on the part of the assured that the underwriters need not inquire into any matter relating to the vessel, nor believe any thing heard in relation to it, as the whole truth had been told. But on the last trial the court held, that the assured were not bound to communicate things to the underwriters which they already knew, and that the jury were warranted in finding that they possessed this knowledge. If the intelligence is published in the papers before the company is formed, it should be communicated to the underwriters, because there is no presumption that they knew of it, in such a case. Himely v. South Carolina Ins. Co., 3 Const. R. 154. 1 Coulon v. Bowne, 1 Caines, 288. 2 Thomson v. Buchanan, 4 Brown, P. C. 482. 3 Vallance v. Dewar, 1 Camp. 503; Moxon v. Atkins, 3 Camp. 200; Da Costa v. Edmunds, 4 Camp. 142; Maryland & Phoenix Ins. Co. v. Bathurst, 5 Gill & J. 159 ; Buck v. Chesapeake Ins. Co., 1 Pet. 151; Planché v. Fletcher, 1 Doug. 251; Long v. Bolton, 2 B. & P. 209. In Hurtin v. Phoenix Ins. Co., 1 Wash. C. C. 400, it was held, that if it was usual on a voyage to Gibraltar, to carry a bill of lading to the Mediterranean, generally the assured was not bound to mention the fact to the underwriters. In Vallance v. Dewar, the insurance was "at and from " Newfoundland. After the vessel arrived there she was employed three or four months in bank fishing before she took in her return cargo. The defence was, that the underwriters had not been informed that the vessel was to be so employed, and that the risk was thereby much increased. But it was shown that by the usage of trade on these voyages it was customary to have a separate policy for the vessel while engaged in the fishing business. Lord Ellenborough held that the underwriters were presumed to know this usage. See also, Ougier v. Jennings, 1 Camp. 505, n. Where the mode of trading resorted to is merely of occasional occurrence, the underwriters are not presumed to know it. Tennant v. Henderson, 1 Dow, P. C. 324. In this case the intention to act in concert with another vessel, was held to be a concealment. But it would be otherwise if this was justified by usage. Child v. Sun Mut. Ins. Co., 3 Sandf. 26. See Taunton Copper Co. v. Merchants' Ins. Co., 22 Pick. 108, and ante, p. 56-61. There is no presumption, because vessels usually stop at a certain place only a short time, that being there on a certain day, the vessel insured must have sailed from there on that day, for her sailing would depend on the weather and on her state of repair. Kirby v. Smith, 1 B. & Ald. 672, 675. 4 * Moxon v. Atkins, 3 Camp. 200; Kingston v. Knibbs, 1 Camp. 508, note; Stewart 5 Nelson v. La. Ins. Co., 17 Mart. La. 289. For such facts are presumed to be known. An expressed intention to depart from a usage it is said will authorize the departure, unless the policy expressly forbids it, which it may do directly or indirectly; but this may perhaps be doubted.1 If enough is honestly said by either party to suggest a doubt to the other party and put him on an inquiry which would have set him right, and he remains in ignorance because he neglects to make such inquiry, this ignorance is not to be imputed to the assured as his concealment.2 That intention need not be stated, which, if it be carried into effect, will avoid the insurance or give the insurers a defence; such at least seems to be the rule in respect to an intention to deviate; for if there be no deviation the intention does not discharge the insurers, and if there be one it discharges them, although unintended by the owner. It is, however, obvious that in some cases the mere intention may be such as of itself to enhance the risk; and then, on general principles, it should be disclosed.3 v. Bell, 5 B. & Ald. 238; De Longuemere v. New York Fire Ins. Co., 10 Johns. 120; Bell v. Marine Ins. Co., 8 S. & R. 98. In Stewart v. Bell, the insurance was on goods from London to Jamaica. The goods were discharged into shallops at a port near their destination, and were lost in their conveyance to that place. This was shown to be the usual mode of landing goods at that port, and the underwriters were held liable. See also, Mobile Mar. Dock & Mut. Ins. Co. v. McMillan, 27 Ala. 77. In De Longuemere v. N. Y. Fire Ins. Co., the insurance was from New York to the port of Sisal. There was no harbor at that place, and the vessel lay out several miles from the shore to receive her cargo. The trade with Sisal was recent, and the assured did not communicate the nature of the port to the underwriters. Kent, C. J., said: "The defendants took upon themselves the risk of the vessel while at Sisal with all the inconveniences of such an open and exposed shore, equally as they assured the extraordinary perils, if any, of the navigation of the Mexican sea." 1 See 2 Duer on Ins. p. 668, lect. xiv. § 17; 1 Phillips, Ins. § 602; Middlewood v. Blakes, 7 T. R. 162. 2 See Court v. Martineau, 3 Doug. 161; Fort v. Lee, 3 Taunt. 381; Alsop v. Commercial Ins. Co., 1 Sumner, 451; Carr v. Hilton, 1 Curtis, C. C. 390; Freeland v. Glover, 6 Esp. 14, 3 Smith, 424, 7 East, 457. 3 In N. Y. Firem. Ins. Co. v. Lawrence, 14 Johns. 46, 59, it was agreed by the whole court that an intention to deviate did not avoid the insurance. See also, Henshaw v. Mar. Ins. Co., 2 Caines, 274; Houston v. N. E. Ins. Co., 5 Pick. 89. The other rule laid down by Kent, J., on the authority of Middlewood v. Blakes, that positive instructions given to the master to deviate or change the risk should be disclosed, does not seem to be settled. In Middlewood v. Blakes, 7 T. R. 162, the insurance was from England to Jamaica. The captain was instructed to stop at Cape Nicholas Mole. The vessel was captured It seems, that one requesting insurance need not disclose that he has applied to other insurers and been refused; and if he expresses his opinion as to the terms on which he believes others would insure, this, even if it be false, is said not to discharge the insurers as a material misrepresentation. But a statement, whether direct or implied, that other insurers have insured the property when they have not, or at less than the actual rate, is a misrepresentation. A past damage to goods need not generally be stated, because the insurer indemnifies only for future damage; but it should be otherwise if the past damage affects their present probability of preservation or decay. And a person before her arrival at the latter place, and while on one of the three regular routes to 2 See Sibbald v. Hill, 2 Dow. P. C. 263, cited ante, p. 155, n. 4. * In Boyd v. Dubois, 3 Camp. 133, a lot of hemp insured was destroyed by fire. "The defendant's counsel undertook to prove that the hemp was damaged; and for this reason it was apt to ferment, and take fire." Lord Ellenborough said: “If the hemp was put on board in a state liable to effervesce, and it did effervesce and generate |