*85 By the Oowrt
FlaNdbau, J.— After tbe jury bad retired and been in consultation for some time, they annoxxnced to the officer that they had agreed upon their verdict, which they sealed up, and were thereupon permitted to sepai’ate. This was a deception practised by the jury upon the officer, with a view of obtaining their l’elease for the night. They had not agreed upon a verdict. at all, but, on the contrary, two of the jurors protested against the verdict, or, as it was stated by them in Court, “ voted for the verdict under protest.” 'Whether this was a mere mental protest, unknown to their fellows of the panel, or was openly asserted, does not cleai’ly appeal’, nor does it make much difference, except so far as it would go to implicate the whole jury in the fraud, or only the two protestants. It is clear that at the time the jury separated, no verdict had been agreed upon, ten of the jurors being for the Defendant, and two entertaining different views. When the jury appeared in court next morning, this condition of their deliberations, at the time of their separation, was confessed by them, one of the protestants adhering to his views, and refusing to join in the verdict, and the other yielding and assenting to the same. Now what produced the change in this juror ? He had not been in consultation with his fellows since the separation, for.they had not met as a jury. He must have either made up his verdict from his own reflections, in the absence of his fellows, or from improper influences brought to bear upon him, neither of which is the decision contemplated by the law. A jury is a body of twelve men assembled for consultation, argument and mutual assistance in arriving at the truth, and no single member of it has the right to make up his verdict apart from, and unaided by the others. It is very difficult to distinguish this case from that of Oliver vs. The Trustees of Springfield, 5 Cow., 283. There the jury procured their separation by a similar artifice practiced upon the officer, and some of them were in hearing, during their separation, of conversation about the suit in which they were engaged. Here a radical change had been produced in the mind of one of the jurors during the separation, which is, to say the least, strong ground for suspicion of abuse. We cannot give our consent to verdicts procured by *86sucb means. There is a want of that dignity, decorum and propriety which should characterize the administration of justice about such proceedings, that if tolerated would soon withdraw from our judicial tribunals that popular reverence which is the strong arm of the law in a republic. The judge was right in his decision upon the irregularity of the verdict.
This leads us to an examination of the question of whether the facts stated in the written application were absolutely warranted to be true as stated, or were only warranted to be true so far as they materially affected the risk.
In the policy occurs this provision:
“ And that this policy is made and accepted in reference to the conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise especially provided for.”
Among the conditions annexed to the policy is the following :
“ Seo. 14. When a policy is made and issued upon a survey and description of certain property, such survey and description shall be taken and deemed to be a part and portion of such policy and warranty on the part of the assured.”
When the insurance was effected the solicitor of the company went with the insured upon the premises and propounded to him the questions contained in the written application and wrote down his answers, after which the assured signed his name to the application. This took place in the forenoon. At noon of the same day the assured went to the office of the company where the agent of the company showed the application to the insured and read it to him; upon this the policy was executed. There can be very little doubt that the survey and description, in fact the whole contents of the application was the act of the assured ; and not that "of the company or its agents, and that he cannot be permitted to deny it. Did it amount to a warranty, or merely a representation of the facts stated ?
“ An express warranty, * vn the law of inswmnee, is a stipulation inserted in writing on the face, of the policy, on *87the literal truth or fulfilment of which the validity of the entire contract depends. The stipulation is considered to 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.” Angel on Insurance, sec. 140, note 1.
A representation as distinguished from a warranty in the law of insurance is “a verbal or written statement made by the assured to the underwriter, before the subscription oí the policy, as to the existence of some fact or state of facts tending to induce the underwriter more readily to assume the risk, by diminishing the estimate he would otherwise have formed of it.” Angel on Ins., Sec. 147.
In the law of insurance a warranty is always part of the contract, a condition precedent upon the fulfilment of which its validity depends'. A representation, on the other hand, is not part of the contract, but is collateral to it. The essential difference between a warranty and a representation is, that in the former it must be literally fulfilled, or there is no contract, the parties having stipulated that the subject of. the warranty is material and closed all inquiry concerning it; while in the latter, if the representation prove to be untrue, still if it is not material to the risk, the contract is not avoided. Angel on Ins., secs. 142, 147; Burritt vs. The Saratoga Co. Mu. Fire Ins. Co., 5 Hill., p. 188.
The parties, by appropriate words in a policy, may adopt and make part of the contract any other writing not embodied in the policy, (Burritt vs. Saratoga Mu. Fire Ins. Co., 5 Hill., p. 190, per Bronson, J.) and thus change what would otherwise have been considered representations into a warranty. The language used in this policy is incapable of misconstruction. It says, “ when a policy is made and issued upon a survey and description of certain property, such survey and description shall be taken and deemed to be a part and portion of such policy and warranty on the part of the assured.”
The application in this case containing the survey and description of the property, also contained this stipulation: “And the said applicant hereby covenants and agrees to and with said company that the foregoing is a full, just and true exposition of all the facts and circumstances in regard to the *88condition, situation and value of tbe property to be insured so far as tbe same are known to tbe applicant, and material to tbe risk.” Tbe warranty therefore of tbe statements contained in tbe application is not an absolute warranty that they are as stated, but only that they are true so far as tbe same are known to tbe applicant and material to tbe risk, which qualifies tbe warranty, and gives it tbe same effect as a representation of tbe facts would have. Tbe Defendant does not treat tbe statements as a warranty in bis answer, but as concealments and misrepresentations, and tbe Court in bis charge to the jury confined tbe Defendant very properly to tbe issue be bad made. Tbe materiality of tbe variances in value and description, were questions for tbe jury and properly left to them, and upon tbe question of such materiality rests tbe right of tbe Plaintiff to recover, devolving upon tbe Defendant tbe necessity of proving that they were material to tbe risk. "We see no error in the charge of tbe Court to tbe jury, except bis treating tbe question of whether tbe survey and description were tbe act of tbe Plaintiff or Defendant as an open one for tbe jury. "We think these matters having all been reduced to writing and signed by tbe Plaintiff, be was not at liberty to dispute them as bis own.
There must be a new trial for tbe foregoing reasons.