We have seen, p. 59, that the policies in the U. States, are framed after the model of those in England; they generally acknowledge the receipt of the premium, although we have no statute like the British requiring such a clause to be inserted, and drawing after it the consequences that the acknowledgment in the policy stands in the place of the payment of the money, and is conclusive evidence of that fact. Flint v. The Ohio Ins. Co., 8 Ham. R. 501. It has been shown, p. 89 et seq. what misrepresentations will vitiate; it may be observed, that a fraudulent misrepresentation made for the purpose of procuring the policy, may be shown by the defendants. But mere statements as to the manner in which the insured expected to load his vessel, is inadmissible. The insured is not confined to a particular cargo or to a particular voyage unless it is so stipulated in the policy.

The case of Stebbins v. The Globe Ins. Co., cited p. 78 and 96, decides that alterations of the premises insured, subsequent to the policy, by the erection of buildings contiguous to the insured, is immaterial, unless the insurers can show that they have been injured by such erection. But it seems the decision in that case would be inapplicable in cases where the terms of the policies are different. For instance, if the policy is made in pursuance of the Company's act of incorporation, which provides, "that if any alteration should be made in any house or building, by the proprietor thereof, after insurance has been made thereon, with said company, whereby it may be exposed to greater risk or hazard, from fire, than it was at the time it was insured, in every such case, the insurance made upon such house or building, shall be void, unless an additional premium and deposit, after such alteration, be settled with, and paid to the directors; but no such alterations or repairs, in buildings, not increasing such risk or hazard, shall in any wise affect the insurance previously made thereon." In such a case, an alteration by the tenant of the plaintiff in such a manner as to increase the risk or hazard, would doubtless avoid the policy, especially if made with the knowledge or permission of the plaintiff. The underwriter has an undoubted right to be informed of every circumstance tending to enhance the risk, against which insurance is sought, and which, if disclosed, might induce the insurer to decline or demand a higher premium. Walden v. Lou. Ins. Co., 12 Lou. R. 134. Thus, where the plaintiff was induced by the rumor of an attempt to set fire to an adjacent rope walk, to insure his house against fire, and withheld this circumstance from the underwriters, it was held that he could not recover. ib.

Where there is nothing in the policy which renders the insurers liable for the acts of the captain or officers of steamboats, their liability for their conduct must depend on the law. Herman, Briggs & Co. v. Western M. & F. Ins. Co., 13 Lou. R. 516.

The business of towing vessels is entirely separate and distinct from all things connected with or incidental to the navigation of the river by steamboats, or the transportation of freight and passengers. ib.

The testimony of the officers of steamboats, that it is usual to take vessels in tow in their voyage up and down the river, cannot have the effect against

the insurers, when there is no evidence as to the usage of insurance in such cases, or whether such a privilege is or is not stipulated in the policies. ib.

A loss occasioned by the negligence of the officers of a steamboat, is not chargable to the underwriters, unless the policy contains an agreement to insure against barratry. Flint v. The Ohio Ins. Co., 8 Ham. R. 501; see ante p. 39 et seq., and p. 146. But see the observations of Story, J. ante p. 37 to p. 40. Lord Denman, C. J., (7 Ad. & El. 40.) says-" I own I feel a doubt, whether, if it were distinctly averred, that the ship had by gross negligence been brought, during the voyage, to a condition in which she would not be insurable, that might not be a defence. It is certainly a new, and perhaps a dangerous one; but I think that, if it were clearly made out, the assured could not say that the loss was by perils insured against.

If the policy be on a house which is rented to a tenant, and it be destroyed by fire, Mr. Bell considers it to be a difficult and unsettled question, whether the policy would cover the rent lost as being part of the owner's loss, when the policy was silent as to rent eo nomine. See 1 Bell Com. on the Laws of Scotland, 627. The better opinion clearly is, that such a loss could not be recovered; the value of the building only can be recovered by the insured. See 3 K. C. 372.

On policies against fire generally, losses by the negligence of tenants are within the risks taken. And it is still more clear, that losses by the negligence of tenants, or by the criminal wantonness, or misconduct of mere trespassers, or intruders, or felons are within the common policies against fire. By Story, J. in Catlin v. Springfield F. Ins. Co., 1 Sumner, 434; see ante p. 40. Where the claim for indemnity against loss by fire, is resisted by a charge of an attempt by the claimant to defraud the underwriters in setting fire to his own store, and claiming losses on goods which never happened; such fraudulent intent must be shown; but it may appear by presumptive as well as direct evidence; and when once established, no recovery can be had. Regnier v. Lou. State M. & F. Ins. Co. 12 Lou. R. 336.

So, where the statement of losses sworn to by the claimant is disproved by witnesses, he is precluded on that ground from a recovery against the underwriters. ib.

Presumptive and circumstantial evidence in a case may be insufficient to convict in a criminal prosecution for arson, and yet strong enough to prevent a recovery on a policy of insurance, when the claimant is charged with attempting to defraud the underwriters. ib.

Under the averments that the goods to the amount mentioned in the policy of insurance, were not lost, and that the insurer suspected and had reason to suspect, that the pretended loss was altogether fraudulent, evidence will be received to prove that the plaintiff had not the goods when the loss occurred. Brugnot v. Lou. State M. & F. Ins. Co., 12 Lou. R. 326.

A late case in the District Court in Pennsylvania decides, that a levy by the sheriff upon goods covered by insurance, will not vitiate the policy; for the underwriters must be presumed to have contemplated such an event as an incident of the property insured, Should, however, the conduct of the sheriff'

be so plainly unusual and irregular, as to increase the risk beyond the ordinary effect of a levy, the underwriter it seems can make it a matter of defence.

A case of considerable practical importance has been recently decided before Mr. Justice Jones of the Superior Court of the City of New York. The action was brought to recover for a loss to a cargo of grain. It was shown to be the custom of the trade to separate the sound bags from the unsound; and in offering the damaged bags for sale, it was usual to leave one end of each bag open for inspection. The learned Judge held, that the assured was bound to separate the sound from the unsound; for the latter only could be sold on account of the underwriter. He also held, that the underwriters were only liable for damage arising from the immediate perils of the sea. It was for the Jury to say how much of the damage arose from that cause, and if it amounted to an average, then plaintiffs were entitled to recover to that extent, and no

more.

Where the policy mentions that the company "shall within 30 days after certain proofs made, furnish the insured with a like quantity of any or all of the said goods, and of the same quality, or make good the damage or loss by paying therefor;" Held, that the rule of damage was such a sum as would make good the loss sustained. Prospective profits are not to be taken into the account; but only a sum sufficient to enable the insured to replace his stock of goods.

Loss by fire is generally not total, the valuation in the policy is not conclusive as to the real value; it is rather fixing the maximum. In France valued policies against fire are rejected. And in Wallace v. Insurance Co. 4 Miller's Lou. R. 289, the legality of a valued policy against fire seems to be questioned. The policy is clearly open, unless otherwise expressed. 1 Hall, 41; 1 Green's R. 100.

Where a policy against fire covers $15,000 of the property insured; and a second policy is taken out of another office on the same property as a valued one, which is endorsed on the first policy, it cannot have the effect of putting the first office in duviori cusu, or to convert its policy from an open to a valued Millandon v. Western M. & F. Ins. Co., 9 Lou. R. 27.

one.

2. If a subsequent policy contain no provision in respect to prior insurances, the amount of insured's interest in it will be the same as for the first policy; for the insurer may insure again and again the same property, but can recover but one indemnity, and this he may recover of the first or subsequent underwriters. Those who pay the loss, may demand a proportionable contribution from the other underwriters, who are in this respect sureties for each other. ib.

3. Insurance on merchandize, furniture or buildings against fire, is governed by the same rules as to valuation, as a ship or cargo. If the policy is open in its form, the value of the interest must be proved. ib.

The inception of the risk on freight has been adverted to on p. 147. The insured under an insurance upon freight may recover the profits expected to be made by carrying their own goods in their own ship, upon the voyage insured.

Where the assured had purchased a cargo with the intention of freighting the vessel upon the voyage named in the policy, which was procured before the repairs of the vessel were completed, and deposited in a ware house seven miles from the dock where the ship lay, ready to be put on board;— Held, that the interest of the assured in the subject matter had attached, so as to entitle him to compensation for the loss of freight.

Where the vessel was placed in a dry dock, for the purpose of repair, and whilst in the act of being taken out, according to the mode and usage of the place, she was so much injured as to make it necessary to have her broken up :-Held, that such loss came within the words in the policy, "all other perils, losses, and misfortunes that had or should come, to the hurt, detriment, or damage of the subject matter of the insurance." Devaux v. J. Anson, Common Pleas, 1839. All that seems necessary with respect to the cargo being, that it must have become the property of the party insured, by a contract made with a view to its being sent on board, and actually in a state of readiness, (reference being had to the nature and description of the voyage insured,) to be put on board, when the ship arrives at the place of deposit.

All the authorities upon the subject go to show that the intention of the party effecting the insurance, at the time of doing so, ought to lead and govern the future use of it; and that no one can by any subsequent act, entitle himself to the benefit of it without showing that his interest was intended to be embraced by it when it was made. And when the policy is under seal covenant can only be maintained in the name of a party to, or the covenantee, named in the deed, or his legal representative. De Bolle v. Penn. Ins. Co., 4 Whar. R. 68.

Where a policy was executed by an incorporate insurance company, under their seal, for one year; and the policy contained a clause that persons desirous of continuing their insurance, might do so by a timely payment of the premium, without being subject to any charge for the policy; and the insurance was continued from year to year by indorsements on the policy, which were not under seal :-Held, that these indorsements did not continue the instrument as a specialty; and therefore that the action of covenant would not lie to recover for a loss incurred after the expiration of the first term. 2 Whar. R. 167.

In the late case of Lounsbury v. Protection Ins. Co., 8 Conn. R. 459, the following judgment was given. (For Forin of the Declaration, see App. of Forms.)

Daggett, J. 1. "It is contended by the counsel for the defendants, that the declaration is insufficient. It states, generally, that the defendants, being an incorporated company, for a certain premium, by their policy, made insurance on the buildings, &c. of the plaintiff, viz. a building occupied by the plaintiff as a manufactory of hat bodies, and on the privilege for all the process of said business. There were many conditions annexed to the policy, which the declaration recites, with an unnecessary particularity, and then alleges a loss by fire, and that the plaintiff made proof of loss according to the requirements of the policy. One of those conditions, as they are called, is, that the

insurers will not be liable for any loss or damage, which may happen or take place, by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power.' Another is, that if the building shall be used, during the year for which it is insured, for any occupation deemed in the policy hazardous or extra-hazardous, such as soap-boiler's or tallow-chandler's business, &c. unless otherwise in the policy specially provided for, then so long as it may be thus occupied, the policy shall cease and have no effect. Now, it is said, that the declaration is insufficient, because those exceptions are not negatived. I feel no difficulty on this point. All these conditions, if such they may be called, are inserted in the policy by way of proviso, and not at all as conditions precedent. They are introduced for the benefit of the defendants; and they must be taken advantage of, if at all, by pleading. This general rule of law cannot be controverted. Com. Dig. tit. Pleader. C. 81. Hotham v. The East India Company, 1 Term Rep. 638. 645, 6. 1 Chitt. Plead 228, 9.

"There is another condition, also, which, upon the same principle, ought to have been noticed in the declaration, and the exception negatived. It is expressly provided, that if there appear any fraud or false swearing, the insured shall forfeit all claim under the policy. It is believed, that an averment, that the plaintiff had practised no fraud nor swore falsely, would sound rather oddly in the ears of a good special pleader.

6

"2. The other exception to the declaration is, that there is no averment, that the justice of the peace, Benjamin Isaacs, Esq., before whom the plaintiff made oath to the amount of the loss of property, was not concerned in the loss, nor related to the party; and therefore, for aught that appears, he was incompetent to take this affidavit. In reply to this objection, it may be observed, as was said to a precisely similar objection in Booth v. Booth, 7 Conn. Rep. 366. Who ever supposed before, that such an allegation was necessary? It is never necessary, in pleading, to negative the exception, which may exist against a judge or justice.' The declaration, then, is good, even upon demurrer; and therefore, it becomes unnecessary to consider another ground taken by the plaintiff, to wit, that if it were defective, it is cured by verdict. "3. There is an exception on the motion for a new trial, that the declaration on oath of the loss of property, did not comport with the allegation in the declaration, nor with the 10th condition annexed to the policy; and therefore, was inadmissible. By this 10th condition, in case of loss, the insured is bound to declare on oath, 'whether any, and what other insurance has been made on the same property.' The certificate of the declaration of the loss, made by the plaintiff, so far as regards this point, is in these words: 'That said property, or any part thereof, was not, nor has been insured, since the policy of insurance was taken out from the Protection Insurance Company.' The allegation in the declaration is, that this declaration was: 'That no other insurance had been made on the property destroyed as aforesaid.' The objection is, that by the declaration, a prior insurance might have been made. Now, I read so as to exclude that idea, without doing any violence to the language. It is as plain as though it had been expressly said, the property was