Feise v Parkinson
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1812 |
| Date | 18 November 1812 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 482
Common Pleas Division
PRISE V. PARKINSON i TAUNT. era FEISE V. PARKINSON. November 18, 1812. If a policy be avoided by a misrepresentation made without fraud, the assured is entitled to a return of the premium.New trial not to be granted on the mere affidavit of one party contradicting the witnesses on the other side. This was an action upon a policy, at and from Hamburgh, or any port or ports in the Elbe, to London, or any other port or ports of the United Kingdom. Upon the trial of this cause at Guildhall, at the sittings after the last Michaelmas term before Mansfield C. J., the Plaintiff proved the subscription, loss, and interest; and the Defendant rested his case upon a misrepresentation made to the first underwriter at the time of effecting the policy, to whom, as it was sworn by the broker, the Plaintiff bad stated that the ship had both an English licence and a French imperial licence, whereas the fact was, that the ship had an English licence, and a French pass from Cuxhaven, which enabled her to come down the Elbe from Hamburgh, and put to sea without molestation at Cuxhaven, but by no means operated as a licence to her to trade with England ; and it was sworn that the circumstance of having a French imperial licence, made a considerable difference in the amount of the premium of insuring such a voyage at the time when this policy was effected. The jury found a verdict for the Defendant. Shepherd Serjt. in Hilary term last moved for a rule nisi to set aside the verdict and have a new trial, upon an affidavit of the Plaintiff that the broker who gave testimony to his representation of the ship having a French imperial licence, was totally mistaken in that [641] point, and that the Plaintiff's representation upon that head was, that the ship had a French pass, RS the proof spewed that she bad. He also swore that at the time of effecting this policy, French imperial licences had not been beard of at Lloyd's. Secondly, Shepherd contended, that if the Plaintiff were not entitled to a new trial, he was entitled to a verdict for a return of premium ; for that if there bad been any misrepresentation, it was clearly not fraudulent, but originated in mistake ; and if a person without fraud represents circumstances which prove to be not true, this is, like the case of a warranty not complied with, a ground for recovering back the premium, inasmuch as the risk has never been incurred. If this...
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