The English statute of 9th May, 1828, has prudently protected the insurer from the impositions to which he is naturally exposed, by the practice of covering under one policy extended and cumulated subjects of risk. The statute requires that detached buildings, or goods therein, occasioning a plurality of risks, be valued and insured separately; and all insurances against fire, made upon two or more separate subjects or parcels of risk collectively, in one sum, are declared void. It is a condition of the policy, in most cases, that if there be any other insurance already made against loss by fire on the property, and not notified to the insurers, *the policy is to be deemed void; and if there be any other * 375 insurance on the property afterwards made, the insurers are to have notice of it with reasonable diligence, and the same is to be duly acknowledged in writing, or that omission will also render the policy void. (a) 1

535. A loss by fire, in policies against fire on land, occasioned by the mere fault and negligence of the assured, his servants or agents, without fraud or design, is a loss within the policy. Waters v. M. L. Ins. Company, 11 Peters U. S. 213; S. C. 1 McLean, 275; Shaw v. Roberds, 1 Nev. & Perry, 279; S. C. 6 Adol. & Ell. 75; Henderson v. M. & F. Ins. Company, 10 Rob. (Louis.) 164. In Shaw v. Roberds, the rule was stated to be, if the policy be silent as to alterations with trade or business carried on upon the premises, such alteration does not avoid the policy, though the trade be more hazardous, and no notice of the alteration. Pim v. Reid, 6 Mann. & Gr. 1, S. P. The same rule in marine policies. Supra, 307.

(a) Carpenter v. Providence W. Ins. Company, 16 Peters U. S. 495. Reassurance is a valid contract, in cases of fire, as well as in marine policies. The reassurance operates not upon the risk, but upon the property covered by the original policy, and the requirements of the contract are satisfied when those in the original policy are, and notice thereof be given to the reassurer. This species of insurance requires, as well as the primitive contract, the communication of all material information. New York B. Fire Ins. Company v. New York Fire Ins. Company, 17 Wendell, 359.

A valid policy will not be avoided by a prior or subsequent one, which itself is prima facie void, and hence notice of it need not be given. Otherwise, if the prior or subsequent policy be simply voidable upon proof of the facts. Schenck v. Mercer Co. Mut. F. Ins. Co. 4 Zabr. 447; Bigler v. N. Y. Central Ins. Co. 20 Barb. (N. Y.) 635; S. C. 22 N. Y. 402. But see Carpenter v. Providence Wash. Ins. Co. 16 Peters U. S. 495, and Gale v. Belknap Co. Ins. Co. 41 N. Hamp. 170. As to what will constitute valid notice of other insurance, see Westlake v. St. Lawrence Mut. Ins. Co. 14 Barb. (N. Y.) 206; Forbes v. Agawam Mut. F. Ins. Co. 9 Cush. 470; Goodall v. New England F. Ins. Co. 5 Foster, 169; Hutchinson v. Western Ins. Co. 21 Mis. 97; Ames v. N. Y. Union Ins. Co. 4 Kernan (14 N. Y.) 253; Benjamin v. Saratoga County M. F. Ins. Co. 17 N. Y. (3 Smith) 415; Mellen v. Hamilton F. Ins. Co. Ib. 609; Hale v. Mechanics' Mut. Ins. Co. 6 Gray, 169. Subsequent policies are breaches of a warranty against other insurance, although the interest covered is greater than in the first, and by two of the three parties to the first. Mussey v. Atlas Mut. Ins. Co. 4 Kernan (14 N. Y.) 79

Fire policies usually contain a prohibition against the assignment of them, without the previous consent of the company.2 But without this clause, they are assignable in equity, like any other chose in action; though, to render the assignment of any value to the assignee, an interest in the subject-matter of the insurance must be assigned also, for the assignment only covers such interest as the assured had at the time of the assignment. (b) This restriction upon assignments of the policy applies only to transfers before a loss happens, and it applies only to voluntary sales, and not to sales on execution. (c) In some cases, the statute creating a fire

(b) Marshall on Insurance, 800. The assignment of a policy without notice to the office, will not, under the English bankrupt system, prevent the interest in the policy from passing by a subsequent assignment in bankruptcy, on the ground that the pol icy, without the notice, remained under the disposing power of the bankrupt as reputed owner. Ex parte Colvill, Montagu, 110. If buildings insured be mortgaged, the policy is ipso facto assigned to the mortgagee. Farmers' Bank v. M. A. Society, 4 Leigh, 69. Policies against fires, being personal contracts, do not pass to a purchaser of the prop erty before loss, without the assent of the insurer, and the policy ceases if the property be sold without that assent, for no person is entitled to claim for a subsequent loss. Etna Fire Ins. Company v. Tyler, 16 Wendell, 385; Wilson v. Hill, 3 Metcalf, 66. See, also, supra, 262, as to marine policies.

(c) Brichta v. Lafayette Ins. Company, 2 Hall (N. Y.) 372. Strong v. Man. Ins. Company, 10 Pick. 40. And if the assured contract to sell at a future day on payment, and before the day arrives the premises are destroyed by fire, this is not an alienation to defeat the policy, for the assured has the legal title and possession, and an insurable interest and equity equal to the purchase-money.5 Trumbull v. Portage M. Ins. Company, 12 Ohio, 305.

2 Post, note 1, 375.

8 See Murdoch v. Chenango Ins. Co. 2 N. Y. 210; Tillon v. Kingston Mut. Ins. Co. 5 N. Y. 405; Grosvenor v. Atlantic Fire Ins. Co. 17 N. Y. 391; Howard v. Atl. Ins. Co. 3 Denio, 301.

4 Rice v. Tower, 1 Gray, 426; Bragg v. New England Mut. F. Ins. Co. 5 Foster,289. 5 Under the New York statutes, (Stat. 1836, p. 44, § 7,) which makes a policy on property void in case of its alienation by sale or otherwise, it has been held that a mortgage of the property was not an alienation. Conover v. Mut. Ins. Co. &c. 3 Denio, 254; S. C. 1 Comst. 290. The same doctrine is held in New Hampshire. Folsom v. Belknap Co. Mut. F. Ins. Co. 10 Foster, 231. And in Maine. Pollard v. Somerset M. F. Ins. Co. 42 Maine, 221. Nor is a contract to sell an alienation within the policy. Masters v. Madison Co. Ins. Co. 11 Barb. (N. Y.) 624. An alienation of one of several estates, separately insured in a policy, avoids the policy only as to the estate alienated. Clark v. N. England Co. 6 Cushing, 342. A mortgage of chattels, without transfer of possession, is not an alienation within the meaning of the policy. Rice v. Tower, 1 Gray, 426.

An assignment without notice to the insurers has been held to render the policy void, even though the assignment was itself void under the insolvent laws. Dadmun Manuf. Co. v. The Worcester Mut. Ins. Co. 11 Metcalf, 429. Where a policy of insurance

insurance company, authorizes assignments of policies to the purchaser of the subject insured, and authorizes the assignee to sue in his own name, provided notice be given of the assignment before a loss happens, so as to allow the company, at their election, to return a ratable proportion of the premium, and be exonerated from the risk."

(3.) Of the adjustment of the loss.

Settlements of losses by fire are made on the principle of a particular average, and the estimated loss is paid without abandonment of what has been saved. (d) Damages and reasonable charges on

(d) As loss by fire is not generally a total loss, the valuation in the policy, says Mr. Bell, (Com. vol. i. 627,) is rather fixing a maximum beyond which the underwriters are not to be liable, than a conclusive ascertainment of the value. In France, valued policies against fire are rejected; and in Wallace v. Insurance Company, 4 Louis. 289, the policy, and even the legality of valued policies on fire, seem to be questioned. With us, policies against fire are taken to be open ones, unless otherwise expressed. They are not invariably open policies.7 Laurent v. Chatham Fire Ins. Company, 1 Hall (N. Y.) 41; Alchorne v. Saville, 6 J. B. Moore, 202, n.

prohibited transfer without consent of the insurers, and after loss it was assigned, it was held a transfer of the debt, arising by reason of the loss, and therefore valid, notwithstanding the prohibition. Mellen v. Hamilton F. Ins. Co. 17 N. Y. (3 Smith) 609; Goit v. Nat. Pro. Ins. Co. 25 Barb. (N. Y.) 189. In Tillou v. Kingston Mut. Ins. Co. 1 Seld. 405, it was decided that a sale by one of several owners or partners to the others was such an alienation as would avoid the policy, so far as they alone were interested. The same doctrine was held in Finley v. Lycoming County Mut. Ins. Co. 30 Penn. State, 311. In Tennessee it was held, that the share of the assigning owner or partner could not be recovered, but that the assignee might recover to the extent of his original share. Hobbs v. Memphis Ins. Co. 1 Sneed (Tenn.) 444. But see Wilson v. Genesee Mut. Ins. Co. 16 Barb. (N. Y.) 511; Dey v. Poughkeepsie Mut. Ins. Co. 23 Id. 623; Adams v. Rockingham Mut. F. Ins. Co. 29 Maine, 292; Dreher v. Ætna Ins. Co. 18 Mis. 128. Application for consent to the assignment of the policy is notice of the acquisition, contemplated or actual, of an interest on the part of the applicant in the property insured. (Denio J., dissenting.) Hooper v. Hudson River F. Ins. Co. 17 N. Y. (3 Smith) 424.

6 The insurer against fire may reinsure against his own risk. N. Y. Bowery Ins. Co. v. N. Y. Fire Ins. Co. 17 Wendell, 359. And the reinsurer is liable for the full amount which the first insurer is bound to pay. Mut. Saft. Ins. Co. v. Howe, 2 N. Y. 235. But the original assured cannot obtain the benefit of the reinsurance even where his insurer is insolvent. Carrington v. Commercial F. & M. Ins. Co. 1 Bosw. 152; Heckenrath v. Am. Mu. Ins. Co. 3 Barb. Ch. 63. The agent of a company cannot reinsure another company of which he is secretary and director. His position disables him from effectually representing both companies. N. Y. Cont. Ins. Co. v. Nat. Prot. Ins. Co. 20 Barb. (N. Y.) 468; and 14 N. Y. 85.

7 Cushman v. Northwestern Ins. Co. 34 Maine, 487.

8 The rule applicable to marine losses, of deducting from expenses of new for old,

removing, at a fire, articles insured, are covered by the policy. So there may be a general average for a sacrifice made by the insured for the common good, in a case of necessity. It is analogous to the law of contribution by co-securities. (e) If a tenant erects a

building on a lot held under a lease, with liberty to renew * 376 or remove the building* at the end of the lease, and the building be destroyed by fire a few days before the end of the lease, though the building as it stood was worth more than the sum insured, and if removed, would have been worth much less, yet the courts look only to the actual value of the building as it stood when lost, and they do not enter into the consideration of these incidental and collateral circumstances, in fixing the true standard of indemnity. (a)1

It is usually stipulated in the policy, that in case of any prior or subsequent insurance on the same property, and of which due notice has been given, and a loss occurs, the assured is not to recover beyond such ratable proportion of the damages as the amount insured by the policy shall bear to the whole amount insured, without reference to the dates of the different policies. The loss is to be certified upon oath, and the certificate of a magistrate, notary, or clergyman, is made necessary to be procured in favor of the truth and fairness of the statement of the loss; and the strict and literal compliance with the terms of these conditions is held indispensable to a right of recovery. (6) 2 If it be part of the con

(e) Welles v. Boston Ins. Company, 6 Pick. 182.

(a) Laurent v. Chatham Fire Ins. Company, 1 Hall (N. Y.) 41.

(b) Worsley v. Wood, 6 Term Rep. 710; Roumage v. Mechanics' Fire Ins. Com

in cases of partial loss, does not apply to fire policies. And in case of a total loss of the subject insured, there is no other rule than an indemnity to the insured for his actual loss, to be found by the jury. Brinley v. National Ins. Co. 11 Metcalf, 195.

1 The insurers are only responsible for direct and immediate damage, and their liability does not extend to damage occasioned by removing goods, though it be done under a reasonable apprehension that they would be reached by the fire. Hillier v. Allegheny Mutual Ins. Co. 3 Barr, 470. See, however, Case v. Hartford F. Ins. Co.

13 Ill. 676.

An insurance on an unfinished house does not cover materials not then in the house. Ellmaker v. Franklin Fire Ins. Co. 5 Barr, 183. As to the rights and obligations of the parties to the policy under a clause giving the insurers the option of rebuilding and repairing in case of loss, see Trull v. Roxbury Mut. F. Ins. Co. 3 Cush. 263; N. H. Mut. F. Ins. Co. v. Rand, 4 Foster, 428; Franklin F. Ins. Co. v. Hamill, 5 Md. 170; Haskins v. Hamilton Mut. Ins. Co. 5 Gray, 432.

2 Mason v. Harvey, 30 Eng. L. & Eq. 541; Welcome v. People's Eq. M. F' Ins. Co.

tract that the insurer is to be liable only to the extent of the sum insured, and after payment for a partial loss a total loss ensues, the insurer is liable only for the difference between the sum already paid and the sum insured. (c) The contract is confined to the parties, and, as a general rule, no equity attaches upon the proceeds of policies in favor of any third persons, who, in the character of grantee, mortgagee, or creditor, may sustain loss by the fire, without some contract or trust to that effect. If the subject of the insurance be burnt during the continuance of the policy, the benefit of the policy goes to the personal representatives of the insured, unless by some act of the party entitled to the proceeds they become clothed with the character of real estate. (d) *

pany, 1 Green (N. J.) 110; Columb. Ins. Company v. Lawrence, 2 Peters U. S. 25; Savage C. J., in Dawes v. N. R. Ins. Company, 7 Cowen, 462; Leadbetter v. Insurance Company, 13 Maine, 265. This last is a very strong case. If there be any fraud or false swearing by the assured, in the exhibition of his proofs of loss, he forfeits his claim to a recovery. Regnier v. Louisiana State Marine and Fire Ins. Company, 12 Louis. 344; Howard v. City Fire Ins. Co. N. Y. Superior Court, May, 1843. The courts are strict in holding the assured to the utmost candor and good faith in rendering to the insurer the amount of his loss; and a false and fraudulent exaggeration of the amount of the property lost, avoids the policy, and destroys the right to re

cover.

(c) Curry v. Commonwealth Ins. Company, 10 Pick. 535. The law of marine insurance respecting salvage does not apply to fire policies. Liscom v. Boston M. F. Ins. Company, 9 Metcalf, 205.

(d) Mildmay v. Folgham, 3 Vesey, 472; Lord King, in Lynch v. Dalzel, 4 Bro. P. C. 432, edit. Tomlins; Norris v. Harrison, 2 Madd. Ch. 268; Ellis on the Laws of Fire and Life Insurance, 81; Columb. Ins. Company v. Lawrence, 10 Peters U. S.

2 Gray, 480; Protection Ins. Co. v. Pherson, 5 Porter (Ind.) 417; Noonan v. Hartford F. Ins. Co. 21 Mis. 81. But the terms of the policy respecting notice are to have a reasonable interpretation. N. Y. Central Ins. Co. v. Nat. Prot. Ins. Co. 20 Barb. (N. Y.) 468; Bumstead v. Dividend Mut. Ins. Co. 2 Kernan, 81. The insurers may waive, expressly or impliedly, their right to a strict fulfilment of the conditions of the policy respecting notice of a loss, or may so act as to furnish a valid excuse to the assured for non-compliance with them. Tayloe v. Merchants' F. Ins. Co. 9 How. U. S. 390; Westlake v. St. Lawrence Mut. Ins. Co. 14 Barb. (N. Y.) 206; Clark v. New England Mut. F. Ins. Co. 6 Cush. 342; Francis v. Ins. Co. 1 Dutch. (N. J.) 78; Bartlett v. Union Mut. Ins. Co. 46 Maine, 500.

3 If property, insured at less than its value, be partly destroyed, the insured is entitled to be paid his whole loss, if it do not exceed the amount insured. Underhill v. Agawam F. Ins. Co. 6 Cush. 441.

* In England insurance of the fidelity of employees, and other similar risks, are common. The rules governing these contracts resemble those relating to life assurSee Towle v. National Guardian Assur. Co. 3 Giff. 42; Anderson v. Fitzgerald, 4 H. of Lords Cas. 484; Benham v. United Guar. & L. Ass. Soc. 7 Wels. H. & Gord. 744.

ance.