The word warranty need not be used if the language is such as to import unequivocally the same meaning. And an indorsement made upon the policy before it is executed, may take effect as a part of it. (d) story, or a watch kept, or an examination made at night, must be substantially complied with. Houghton v. Manufacturers Ins. Co. 8 Met 114; Jones Manufacturing Co. v. Manufacturers Ins. Co. 8 Cush. 82; Hovey v. American Ins. Co. 2 Duer, 554; Glendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19; Sheldon v. Hartford Fire Ins. Co. 22 id. 235. Where, by the terms of a policy, a misrepresentation or concealment as to the distance of the building insured from other buildings, avoids it, such representation or concealment will have that effect. Burritt v. Saratoga County Ins. Co. 5 Hill, 188; Jennings v. Chenango County Ins. Co. 2 Denio, 75; Kennedy v. St. Lawrence County Ins. Co. 10 Barb. 285; Wilson v. Herkimer County Ins. Co. 2 Seld. 53; Wall v. East River Ins. Co. 3 id. 370. But if the insurer, with a knowledge of the inaccuracy of the statement, makes and receives assessments of premiums from the insured, he will be estopped from setting it up in defence in a case of loss. Frost v. Saratoga Ins. Co. 5 Denio, 154. But it is held, that a misstatement as to the distance of other buildings, which is not material, will not avoid the insurance, where the policy does not specially give it the effect of a warranty. Gates v. Madison County Ins. Co. 2 Comst 43, 1 Seld. 469, overruling the decision of the Supreme Court, 8 Barb. 73. See Wall v. East River Ins. Co. 8 Seld. 374. The erection by the party insured, without notice to the insurers, of a new building nearly adjoining the building insured, does not invalidate the policy; there being no provision on the subject, and no actual injury having resulted from such erection, although, when the insurance was effected, the building was in contemplation, and preparations for its erection had commenced. Gates v. Madison County Ins. Co. 1 Seld. 469. So where the assured, upon an application by a diagram or otherwise, represent the ground contiguous to the premises as "vacant," this does not amount to a warranty that it shall remain vacant during the risk, or prevent the insured himself from building thereon. Stebbins v. Globe Ins. Co. 2 Hall, 632. Where the company insured the plaintiff $2,000 on his machine-shop, "a watchman kept on the premises," it was held, that the stipulation, "a watchman kept on the premises," inserted in the body of the policy just after the description of the property, is in the nature of a warranty, and must be substantially complied with. It does not require a watchman to be kept there constantly, but only at such times as men of ordinary care and skill in like business keep a watchman on their premises. And in an action on such policy, evidence of the usage, in this respect, of similar establishments is admissible. Crocker v. Peoples Ins. Co. 8 Cush. 79.

(c) City of Worcester v. Worcester Ins. Co. 9 Gray, 27.

(d) Roberts v. Chenango Co. Ins. Co. 3 Hill, 501.

Every statement, however, which is introduced into the policy is not a warranty. It may be merely a license or permission of the insurers that the premises may be occupied in a certain way, or that some fact may occur without prejudice to the insurance. (e)

A representation, in the law of insurance, differs from a warranty, in that it is not a part of the contract. If made after the signing of the policy or the completion of the contract, it cannot, of course, affect it. If made before the contract, and with a view to effecting insurance, it is no part * of the contract; but if it be fraudulent, it makes the contract void. And if it be knowingly false it has this effect. (f) It must, however, be material; (g) 1 and a statement in an application for insurance is to be considered a representation rather than a warranty, unless it is clearly made a warranty by the terms of the policy or by some direct reference therein. (h) 2

A representation may be more certainly and precisely proved if in writing; but it will have its whole force and effect if only oral. (t)

In some instances, by the terms of the policies, any misrepresentations or concealments avoid the policy. And it is held, that the parties have a right to make such a bargain, and that it is

(e) Catlin v. Springfield Ins. Co. 1 Sumner, 434.

(f) Lewis v. Eagle Ins. Co. 10 Gray, 608.

(g) See Clark v. Manuf. Ins. Co. 2 Woodb. & M. 472; Nicoll v. American Ins. Co. 3 id. 529. The statements in the application on a separate sheet, have the effect only of representations, and do not avoid the policy unless void in a material point, or unless the policy makes them specially a part of itself, and gives them the effect of warranties. Jefferson Ins. Co. v. Cotheal, 7 Wend. 73; Snyder v. Farmers Ins. Co. 13 Wend. 92, 16 id. 481;

Delonguemare v. Tradesmen's Ins. Co. 2 Hall, 611; Stebbins v. Globe Ins. Co. id. 632; Burritt v. Saratoga County Ins. Co. 5 Hill, 190; Murdock v. Chenango County Ins. Co. 2 Comst. 210; Sexton v. Montgomery County Ins. Co. 9 Barb. 200; Kennedy v. St. Lawrence County Ins. Co. 10 id. 285; Williams v. New Eng. Ins. Co. 31 Maine, 224; Insurance Co. v. Southard, 8 B. Mon. 634; Egan v. Mutual Ins. Co. 6 Denio, 326.

(h) Daniels v. Hudson River Ins. Co. 12 Cush. 416.

(i) 2 Duer on Ins. 644; 1 Arnould on Ins. 489.

1 A representation concerning a matter material to the risk, as incumbrances, contained in an application, if untrue in fact, avoids the policy, whether intentionally made or not. Byers v. Farmers' Ins. Co. 35 Ohio St. 606. Thus an honest misrepresentation of the existing amount of insurance on a building will avoid a policy made in reliance on the truth or the statement, Armour v. Transatlantic Fire Ins. Co. 90 N. Y. 450; or that a mortgage amounted to about "$3,000," when in fact it was for $4,425, Glade v. Germania Ins. Co. 56 la. 400. That a mechanic's lien, for which an application has been filed, is an incumbrance, see Redmon v. Phoenix Ins. Co. 51 Wis. 292.