HODOSON

V.

five. I am disposed to concur in their decisions on each of these several pleas, although, perhaps, on Mar Co. some of them, for reasons not altogether the same with those by which they were influenced; but I 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 to 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 represented age and tonnage, was material in regard to the contract of insurance.

The plaintiff replies that this misrepresentation was immaterial in regard to the seaworthiness of the vessel; her ability 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 the replication draws towards questions very different from that which ought to control our decisions.

It is not on the doctrine of seaworthiness that a misrepresentation is held to vitiate the policy, because the insured is always held to guaranty the sufficiency of his vessel to perform the voyage insured. Nor 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 that which he supposes he is entering into. It is a rule of law introduced to protect underwriters from those innumerable frauds which are practised upon them in a contract which must of necessity be regulated almost wholly by the information derived from the insured.

I do not lay so much stress upon the misrepre>

Vol. V.

V.

HODGSON sentation with regard to the age of the vessel; for MAR. IN Co that appertains much to her seaworthiness; but with regard to her size the misrepresentation was so enormcs as leaves no doubt upon my mind that had the 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 an underwriter may be 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 a 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 suppose 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 would not avoid the policy?

From these considerations it seems to result that the court 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,

V.

of the size of the vessel will avoid a policy, or that HODGSON any misrepresentation, however minute, will have MAR. IN: Co 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.

THE UNITED STATES v. JUDGE PETERS.

cannot annul

thejurisdiction,

States

causes,

erected by the

AT the last term Gideon Olmstead, in behalf of The legisla himself and Artimus White, Aquilla Rumsdale, and ture of a state David Clark, moved the court for a mandamus to the judgments, be directed to the honourable Richard Peters, judge nor determine of the district court of the United States for the of the courts Pennsylvania district, commanding him to order and of the United direct an attachment or other proper process to issue The court of to enforce obedience to the sentence of the said dis- appeals in trict court in a civil cause of admiralty and maritime Prize jurisdiction, in which the said Gideon Olmstead and continental others were libellants, and Elizabeth Serjeant and congress, had Esther Waters were respondents. This motion was vise and cormade upon a suggestion, supported by affi lavit, that reet the sen a copy of the sentence had been served upon the state courts of respondents, which they refused to obey; and that admiralty. application had been made to the judge for an at- claims of tachment, which he had refused to grant; whereupon state may be a mandamus nisi was granted returnable to this term; feeted by the uitimately af when the judge made the following return:

power to re

tences of the

Although the

"

decision of a Cause, yet if the state be not a

*On Saturday, March 5th, 1808, upon the affidavit of Olmstead, a rule necessarily was granted that Judge Peters should show cause by the next Satur defendant, the day, why a mandamus should not issue. On Saturday, March 12th, a courts of the letter was received by one of the counsel for Olmstead, from Judge United States Peters, acknowledging service of the rule; and stating that an act of are bound the legislature of Pennsylvania had commanded the governor of that exercise state to call out an armed force to prevent the execution of any process risdiction. to enforce the performance of the sentence. That such being the state of things he should not direct process to issue unless he should be so ordered by this court; whereupon a mundumus nisi was granted, returnable at the west terms.

ju

THE U. S.

V

PETERS.

"To the honourable the supreme court of the United States,

"The subscriber, judge of the district court of the United States in and for the district of Pennsylvania, in obedience to the mandamus issued by order of the supreme court in the case of Gideon Olmstead and others, libellants, against the surviving executrixes of the late David Rittenhouse, Esq. and to the said district judge directed, begs leave to return,

"That the proceedings of the district court in the aboye cause, which are herewith transmitted, and respectfully submitted, will show the grounds of the judgment by the said court rendered. Every opportunity, through the whole course of these proceedings, was given to the parties to litigate the claim, or discuss questions, either on the merits or jurisdiction, Nor was any step taken, without due and timely notice.

"The answer of the respondents will show their objections to the claim of the libellants. This answer refer to an act of assembly of the state of Pennsylvania, passed the 26th day of February, 1801, which was not produced or brought under the legal notice of the court.

"No application for execution of the decree was made until within twelve or eighteen months past; nor has it been, till more recently, much pressed.

"By the suggestion filed by the respondents, their objections to the execution of the decree will appear. They have made an act of assembly of the state of Pennsylvania a part of their suggestion; and thus, for the first time, during the pendency of the suit, brought this act under the judicial notice of the court. It is entitled "An act relating to the claim of this commonwealth against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Rittenhouse, Esq. deceased, passed

April the second, 1803:" and to this act I pray leave THE U. S. to refer.

"This act, or any of its allegations, has no influence on my opinion. Let this opinion be erroneous or correct, a proceeding, in some of its parts, indecorous, and, in others, unjustifiable, can have no operation in rectifying supposed errors, or convincing my judgment. But from prudential, more than other motives, I deemed it best to avoid embroiling the government of the United States and that of Pennsylvania (if the latter government should choose so to do) on a question which has rested on my single opinion, so far as it is touched by my decree: and, under the influence of this sentiment, I have withheld the process required. If this be not considered a legal cause, it must be deemed a candid acknowledgment that I do not invariably obey a rigorous dictate of duty, or follow an inflexibly strict construction of law.

"I entertained a hope that a legislature succeed. ing that by which the act before mentioned was passed, would, under a more temperate view of the subject, have repealed it; and enabled and directed the executive of the state, or some other authority, to put this case in a legal train of investigation: so that the final judgment and decree of the superior tribunal of the United States might have been, in a proper course, obtained; and thereby any erroneous opinion, or decree, given or made by me, might have been rectified (if any opinion or decree should have been found illegal or erroneous) in a manner more becoming the real dignity of a state, more suitable to the situation of those who execute the duties of a branch of the government of the United States, and more consistent with the good order and peace of the community. This hope was cherished by the proceedings of the legislature of Pennsylvania, in other cases wherein the state claimed interests. This expectation has been disa "ointed. There being no other legal mode of obtaining the decision of

V.

PETERS.