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excluding a papist from the throne, but surrounding a protestant king with popish advisers. He would tolerate, but not encourage, much less do any thing to establish, religious error; and in his wrath at the general tergiversations which prevailed, spared neither the trimming prelate nor the recreant lawyer. In this spirit he expressed his utter amazement at hearing a prelate state that the coronation oath was not binding on the king in his legislative capacity. If so, no oath was of any use. On Lord Lyndhurst mentioning in the course of his argument, that Roman Catholics sat in parliament under our Protestant government, Lord Eldon interrupted him with the sarcastic question, “ Did the noble and learned lord know that last year ?" and when the Chancellor coolly replied, that he did not, but that he had prosecuted his studies since, his predecessor explained in a tone of banter fully justified by the provocation, “I can very well see that a Protestant Lord Chancellor may be very much under the influence of a powerful prime minister.”

In his last address on the third reading he said, with solemn energy,' I would rather hear that I was not to exist tomorrow morning than awake to the reflection that I had consented to an act which had stamped me as a violater of my sacred oath, as a traitor to my church, and a traitor to the constitution.” Having failed in alarming the king by a pri

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1 In Moore's Life of Byron, tliat noble lord is made to say, " In one of the debates on the Catholic question when we were either equal, or within one, (I forget which) I had been sent for in great haste to a ball, which I quitted, I confess, somewhat reluctantly, to emancipate five millions of people. I came in late, and did not go immediately into the body of the house, but stood just behind the woolsack. Lord Eldon turned round, and catching my eye, immediately said to a peer, who had come to him for a few minutes on the woolsack, as is the custom of his friends, 'D-on them! they'll have it now.

the vole that is just come in will give it them.”” This statement would seem to impute considerable cnergy of expression, as well as feeling, to Lord Eldon on this subject. But the babit of mystifying, in which the poetical lord indulged, renders the truth of his story problematical. The expletives, we are inclined to think, he brought with biin into the house. His virus he showed in sone doggrel written in continuation of the Devil's Walk:

“ And he saw the tears in Eldon's eyes,

Because the Catholics would not rise,
In spite of bis tears and his prophecies.”

vate interview at Windsor to exercise his veto, though he abhorred the measure as much as his faithful councillor, and the startling majority of 109 having sealed its fate in the Lords, he bade the House farewell in a moment of despair, and expressed his sorrowing conviction that the sun of England had set.

Much idle merriment has been wasted on this strong figurative phrase, and puerile triumph evinced, that the seasons here should have experienced no perceptible change. The leading advocates for the measure--who prophesied that the grant of emancipation would be like oil poured on the troubled waters and prevent all further agitation, that it would strengthen the church in Ireland, that it would save that country 50,000 bayonets, that all would be henceforth harmony and peace, (these and similar prophecies were braved by the orators for concession,) and who laughed at the notion of danger to the church from some half-dozen Roman Catholics, the maximum number likely to stray into the House--are surely disqualified from sitting in judgment on Lord Eldon. When we recollect what has been attempted and what accomplished in the space of ten years—ten Protestant bishops cashiered, to apply a military metaphor to a church strictly militant-one-fourth of the revenues of that church confiscated and the remainder threatened—sixty Roman Catholic members voting for the abolition of church-rates-every social institution tampered with ; when we behold a people without confidence, and a government without power, domestic insecurity, colonial insurrection and foreign dishonour, we may be excused for thinking that the light has been dimmed in our political horizon, and, if the sun of England has not set, that it has been in eclipse.

Through the schism made by this fatal gift of unconditional emancipation issued the Reform Bill. The aged peer, though no longer sustained by the people, hastened back to his place in parliament to withstand the popular delusion with as much spirit as when thousands had been shouting encouragement. “His thoughts,” he said, “ were how to serve, not how to please, his countrymen, and so that he acted for them, he did not greatly care whether or not he acted with them.” When

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taunted with returning to the House wbich he had threatened to quit for ever, he made this mild and memorable reply, “I certainly thought that was the last opportunity I should have of addressing your lordships. I felt myself called upon by a sense of duty which I could not resist from the moment when my sovereign called me to a seat in this House, as long as my strength permitted me, to offer myself and my opinions to the suffrages and approbation, or to the dissent and reprobation of my fellow-subjects, and to them I boldly appeal after the delirium of this day shall have passed away.”

[To be concluded in the neat number.]

ART. IV.--MERCANTILE LAW.-NO. XXV.

(Marine Insurance-continued.) A loss having been sustained, and a claim made by the assured, we are next to consider what exceptions may be taken to the claim by the underwriter, either as invalidating it altogether, or as reducing it in character and degree. Exceptions of the first kind may be distinguished into two classes--where the liability has never attached at all—and where, having attached, it has been released or discharged before the accruing of the loss; and of these two classes the former again may be divided into such as affect the contract itself, and such as affect the obligation resulting from the contract by reason of the non-fulfilment of some condition precedent or concurrent, or the abandonment of the adventure insured.

FIRST, exceptions to the contract are either to the form or the substance. Of the formal requisites of a policy, its essential parts, the signature, and the stamp, we have sufficiently spoken in a former chapter. Substantial objections are principally, the want of an insurable interest, illegality, or misrepresentation or concealment of a material fact whereby the assurer is misled. Of these the last mentioned alone remains to be considered.

The basis of the contract of insurance is the estimating of a fair equivalent in present money for an indemnity against a future contingency; and in order justly to appreciate the risk in any particular case, the underwriter ought to be in possession of every known fact by which the chances may be varied. Now the knowledge thus required is of two kinds, Ist, that general information, which is equally applicable to all adventures of the same kind, such as the average duration of a voyage from one given port to another, the nature of rivers and harbours, the prevalence of certain winds and currents, and the dangers which belong to the navigation of particular seas, or at particular junctures, the usage of trade, and the like; and, 2dly, the knowledge of facts peculiarly concerning the individual venture to be assured. The general knowledge it is part of the underwriter's business to be supplied with ; but for information as to any particular fact or facts affecting the risk proposed, he must necessarily trust in great measure to the accuracy and candour of the party proposing. If he miscalculate upon data which are accessible to him, he must bear the consequence, but if he be misled either by an incorrect representation or by a suppression of facts which he has no means of knowing, then he will not be bound by an engagement contracted on such erroneous assumption. Whether he has been in fact misled, is of course a question of evidence to be determined, not by his own assertion, but by circumstances and probabilities; so that when an exception of this kind is taken the inquiry is practically this—whether there has been a misrepresentation or concealment such as might reasonably influence the judgment of a prudent man as to the acceptance of the proposed insurance, or the terms on which it should be accepted.

Fraud vitiates every contract, and in the contract of insurance, above all others, the most scrupulous good faith is exacted. A mis-statement or suppression in a point material to the calculation of risk primâ facie indicates a fraudulent purpose; but whether fraudulent or innocent, if material, it will be equally fatal to the policy. In either case the contract wants the essential quality of a mutual understanding, and the insurer has a right to say, "you have misled me by stating what was untrue, or in not stating the whole truth, so that the risk actually incurred is not the risk against which I undertook to indemnify.” 1

Cowp. 787. Per Lord Mansfield in Carter v. Boehm, 3 Burr. 1907; and in

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Neither is it necessary to the support of the objection, that the loss for which indemnity is claimed should proceed from, or be connected with, the fact misrepresented or concealed. For example, if, during hostilities, a vessel were represented as neutral, being in fact the property of a subject of one of the belligerents, the underwriter would be equally released from his engagement, whether the loss were by shipwreck or capture. Here again the objection goes to the root of the contract itself. Had the truth and the whole truth been before the underwriter, he might either have declined to take the risk at all, or at least have insisted on a higher premium.1

These things premised as common to both, we proceed to consider, 1, what is a mis-representation; and, 2, what a concealment such as to invalidate the policy.

1. A representation, as distinguished from a warranty, is a statement made before or at the time of the contract, but not embodied in the contract as part of its terms: and this distinction is important; for whereas a warranty or condition must be strictly and literally fulfilled, it is sufficient that a representation be substantially true; and again, evidence which might be conclusive as to a breach of warranty would not be so as to the falsehood of a representation.3

To constitute a warranty, the undertaking must appear in the body of the policy itself, or in the margin as part of the instrument, or, if contained in a separate document, must be connected with and made part of the policy by direct refer

A statement therefore in the written instructions, appended to the policy, but neither directly nor by reference introduced into it, is collateral only, or, in other words, is not a warranty, but a representation.*

A representation once made during the negotiation for an

ence.

Ratcliffe v. Shoolbred, 1 Marsh. Ins. 6, 1, c. 11, s. 2. See also Douglas, 306; and Pothier, Traité du Contrat de Assurance, 196.

Skinner, 327, per Holt, C. J. Seaman v. Fonnereau, 2 Strange, 1183. ? Pawson v. Watson, Cowp. 785. Weir v. Aberdeen, 2 B. & A. 320.

3 Von Iugeln v. Dubois, 2 Campb. 151. There the judgment of a competent foreign tribunal on the question of neutrality, which it was admitted would have been conclusive as to a breach of warranty, was considered not to be so in the case of a mere representation.

- See the cases cited 12 Doug. n.; and Pawson v. Watson, Cowp. 785.

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