hereby declared, that this corporation shall not be liable to make good any loss by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or by an earthquake or hurricane." It was held that under this clause, where a house is destroyed by a riotous assemblage, the insurer is not liable for the loss; and that it was immaterial whether the rioters assembled originally for a riotous purpose, but afterwards were guilty of a riot. It was contended that the fact that there was a riot should be established by the judgment of a competent court in criminal proceedings, wherein the riotors were tried and convicted; but the court said, there had not been cited, nor were they aware of, any authority in support of that position.1

§ 138. A question arose," respecting the exception of "usurped power," out of the great fire which occurred in the city of New York, on the morning of the 17th of December, 1835, upon which calamitous occasion, a store, No. 75 Pearl Street, was, by order of the mayor of the city, blown up with gunpowder, and the goods therein entirely destroyed. An attempt was made to make it appear, that although the mayor had no authority, yet as he acted colore officii, it was a case happening by means of usurped power, which, in the policy, was expressly excepted. Now it is very evident, that there is an impossibility in maintaining, that a mere excess of jurisdiction, by a lawful magistrate, is the exercise of an "usurped power," within the meaning of that exception; and so the court viewed it. "That is not," says Bronson, J., in behalf of the court, "what the insurers had in mind when they made the exception." "Whether the mayor," said the learned judge, "had the concurrence of two aldermen as the statute provides, or not, there can be no doubt of his com

1 Dupin v. Mutual Ins. Co. 5 Rob. (La.) R. 482.

2 City Fire Ins. Co. v. Corlies, 21 Wend. (N. Y.) R. 367.

mon-law power, as the chief magistrate of the city, to destroy buildings, in a case of necessity, to prevent the spreading of a fire. Indeed, the same thing may be done by any magistrate, or even by a citizen without official authority.” 1

1 Mayor of New York v. Lord, 17 Wend. (N. Y.) R. 285.

CHAPTER VI.

OF WARRANTY AND REPRESENTATION.

§ 139. UNDER the above head it is proposed to pursue the subject more minutely, of the extent and nature of the insurer's risk. The obligatory effect of his or their policy, or its availability, as a contract of indemnity to the assured,1 essentially depends upon an observance, or upon a want of an observance, by the assured, of the express stipulations inserted in the policy; and furthermore, upon the disclosure, or the want of disclosure of facts by the assured, whether oral or written, which have induced the underwriter to assume the risk. Hence have originated the titles in insurance law of WARRANTY, REPRESENTATION, and CONCEALMENT. These and the WANT OF INTEREST, before treated of,2 are the important grounds that are relied on by an underwriter or an insurer, in resisting an action upon a policy brought by the assured. It is proposed in the present chapter to consider the subjects of warranty and representation in connection, and to illustrate the contradistinction between them; reserving the subject of concealment for the next following chapter.

§ 140. An express warranty, then, in the law of insurance, is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfilment of which the validity of the entire contract depends. The stipulation is considered to

1 See ante, Introd. § 1, et seq.

2 See ante, Chap. IV.

31 Arnould on Marine Ins. 577; Delonguemare v. Tradesman Ins. Co. 2 Hall, (N. Y.) R. 589; Beaumont on Fire and Life Ins. 54; Duncan v. Sun

be on the face of the policy, although it may be written in the margin or transversely, or on a subjoined paper, referred to in the policy. No particular form of words is necessary to constitute an express warranty; the word "warranty," or "warranted," for instance, is in no case necessary.2 Thus, in marine insurance, the words "to sail on such a day," or "in port," or "all well," on such a day, or "carrying so many guns and so many men, &c." would amount to an express warranty requiring a literal fulfilment, as much as though there was a more formal clause to the same effect.3

§ 141. Although it is, as a general rule true, that a paper not attached to a policy does not form a part of it, yet it may be that a paper not so attached, will be made a part of it, and amount to a warranty, by the express terms of it.1 "No one," says Bronson, J., "could well deny, that the policy may so speak of another writing as to make it a part of the contract, although not actually embodied in the policy."5 Where, for instance, after a brief description of the property insured, there is a clause stating that reference may be had to the application of the assured as forming a part of the

Fire Ins. Co. 6 Wend. (N. Y.) R. 488; New York Gas Light Co. v. Mechanics Fire Ins. Co. 2 Hall, (N. Y.) R. 100; 1 Marsh. on Ins. 354; Harris v. Columbiana Mutual Ins. Co. 18 Ohio R. 116.

13 Kent, Comm. 7th ed. 450; Fowler v. Etna Fire Ins. Co. 6 Cowen, (N. Y.) R. 673; S. C. 7 Wend. (N. Y.) R. 270. See ante, Introd. § 14, 15; Hogan v. Delaware Ins. Co. 1 Wash. (Cir. Ct.) R. 419; Murdock v. Chenango Mutual Ins. Co. 2 Comst. (N. Y.) R. 210.

2 Arnould on Ins. 579.

3 Ibid.; and Kenyon v. Berthon, 2 Doug. R. 12.

4 See ante, § 14, and on pp. 10, 49; Snyder v. Farmers Ins. & Loan Co. 16 Wend. (N. Y.) R. 92; Wall v. Howard, 14 Barb. (N. Y.) Sup. Co. R.

383.

5 Burritt v. Saratoga County Mutual Ins. Co. 5 Hill, (N. Y.) R. 188; the learned Judge referring to the case of Routtedge v. Burrell, 1 H. Black. R.

254.

policy, the application is thus, by express words, made part and parcel of the contract, and the written application and the policy becomes so moulded into one that they amount to a warranty. In the case of French v. Chenango County Mutual Insurance Company, the property insured was mentioned in the policy, "reference being had to the application of said T. & T. French, for a more particular description, and the conditions annexed, as forming a part of this policy." The conditions, the court were of opinion, undoubtedly made a part of the contract of insurance, as much as if they had been embodied in the policy; but it was otherwise with the application. The latter, as it seemed to the court, was referred to for the mere purpose of describing and identifying the property insured, and not to incorporate its statements into the policy as parts thereof. But the material question in the case would not have been changed if the application could have been regarded as part of the policy.

1 See ante, § 14, and on p. 49.

2 French v. Chenango County Mutual Ins. Co. 7 Hill, (N. Y.) R. 122. It was observed by Jones, C. J., in Delonguemare v. Tradesman Ins. Co. 2 Hall, (N. Y.) R. 589, that, "in all the cases, where a warranty has been held to arise from the description of the subject, or the expressions of the parties, that description, or those expressions, have appeared on the face of the policy. No authority has been shown for extending the rule to descriptions or expressions contained in other documents, to which the policy may refer; and such an extension of the rule would, I think, be unwarrantable, unless the reference to the collateral writing be such as clearly to make it a part of the contract. It was on this latter ground, that in policies against loss by fire, the obligation imposed on the assured by the printed proposals annexed to the policy, to procure the certificate of the minister, or church-wardens and parishioners, of the reality of the loss, and the fairness of the claim, has been held to be a condition precedent to the right of the assured to recover which cannot be dispensed with, though the certificate be wrongfully withheld; for the policy, in such cases, not only refers to the writing which is attached to it, but the express undertaking of the insurer is to pay the loss according to the exact terms of the printed proposals. They are consequently made a part of the policy."