We have seen, that in marine policies doable insurance is guarded by many rules, and not unfrequently provided for in the policies. There is, however, in contracts of insurance against fire, a much stronger reason why double insurance should be, if not prevented altogether, at least guarded from becoming the means of fraud. All property under insurance may be fraudulently destroyed by the insured; and such cases sometimes occur under marine policies; but the danger of their occurrence under fire policies is far greater. And many of the rules and usages of fire insurance are intended to guard against this danger. The temptation to destroy insured property, arises when it is insured above its value; for then only would this fraud be profitable. It is true that other circumstances might exist, having a tendency to induce the fraud; but they must be very peculiar, and do not need especial consideration.

Insurers can guard against over insurance by themselves, or, in other, words, against making it the interest of the assured that the property should be destroyed, so far as their own policy is concerned, by ascertaining the value of the property they insure; and the common clause in the charter of mutual fire insurance companies, prohibiting them from insuring more than a certain portion of the value, is intended to guard against this danger. It is, however, obvious, that any precaution of this kind would be wholly useless, if the assured were at liberty to go to other companies, and there obtain insurance on the same property; for if each company insure but a quarter part of the value, he might obtain from all of them together many times its whole value.

Fire insurance companies usually guard against this abuse by very stringent rules and prohibitions. They generally require * that any other insurance upon the property must be stated by the insured, and indorsed upon the policy; and it is a frequent provision, that any other insurance of the interest of the assured in the same property, if it be not so stated and indorsed, shall wholly annul and avoid the policy, or prevent any recovery upon it. (ff) 1 It is also provided, that where such other insurances are so stated and indorsed, all the insurances shall be adjusted as one insurance, and each insurer shall pay only a ratable proportion of the whole loss. (g) 2 But it would seem, that where in such a case one insurer pays more than his proportion, he has no claim against the others for contribution, because the clause renders each insurer liable for only a ratable proportion; and therefore it gives him adequate defence if more than this proportion be demanded; and the right of contribution exists only where two or more are bound severally to pay the whole sum, and one pays more than his share by compulsion, and asks contribution from the rest who might have been bound by the same compulsion. (h)

These precisions have passed repeatedly under adjudication. It has been determined that they apply to a subsequent as well as to a prior insurance. (i) Some difficulty has been found in ascertaining what is a sufficient notice or assent to come within these provisions. The difficulty has arisen, in part from the different rules or the different language employed by the companies to effect their object. In some instances, the charter of * the company provides, that any policy made by it shall be avoided by any double insurance of which notice is not given, and to which the consent of the company is not obtained, and expressed by their indorsement on the policy. (j) But this would not apply to a non-notice by an insured of an insurance effected by the seller on the house which the insured had bought, if this policy were not assigned to him. (k) Some policies provide, that in case of any other insurance on the same property, the contract shall be null and void, unless notice is given to the company, and the same is mentioned in or indorsed upon the policy. (l) 1 In others, such subsequent insurance does not vitiate the policy if it is assented to by the prior insurers; and a parol assent would be sufficient, unless the contract provided that it should be in writing. (m) In others, the insurers are required to be notified of a subsequent insurance with all reasonable diligence. (n) But the obtaining subsequent insurance will not have the effect of vitiating the first policy if it be void for any cause, although it be on account of the fault of the insured, as by his misrepresentations. (o) 2 A court of equity would give relief, where notice and consent were entirely sufficient in their character, though not formally accurate, but never otherwise. (p)

(ff) See Dietz v. Mound City Ins. Co. 38 Mo. 85; N. England Fire Ins. Co. v. Schettler, 38 Ill. 166.

(g) See Haley v. Dorchester Ins. Co. 1 Allen, 536. In Richmondville Union Seminary v. Hamilton Ins. Co. 14 Gray, 459, the following words were written on the face of the policy: "Additional to $9,000 insured in other offices, and $8,000 to be insured in other offices." The application stated that there was $9,000 already insured, and $8,000 wanted in other companies. The by-laws provided, that in case of double insurance, the company should be liable to pay only such proportion thereof as the sum insured by them should bear to the whole amount insured thereon. Held, that the liability of the company was to be calculated by the amount of insurance actually procured, and not by the amount stated in the policy.

(h) Lucas v. Jefferson Ins. Co. 6 Cow. 635; Thurston v. Koch, 4 Dall. 348; Craig v, Murgatroyd, 4 Yeates, 161; Millaudon v. Western Ins. Co. 9 La. 27; Peters v. Del. Ins. Co. 5S.&R. 475; Mutual Safety Ins. Co. v. Hone, 9 Comst. 235.

(i) Harris v. Ohio Ins. Co. 5 Ohio, 466 ; Westlake v. St. Lawrence Ins. Co. 14 Barb. 206; Stacey v. Franklin Ins. Co. 2 Watts & S. 543. But it has been held, that if the subsequent insurance is declared void in the policy, if there has been a previous insurance, without the knowledge and consent of the insurers, it cannot be set up as evidence of a subsequent insurance, where the first policy provides that a subsequent insurance, without the consent, in writing, of the underwriters thereof, shall be ipso facto void. Jackson v. Mass. Ins. Co. 23 Pick. 418.