upon. There are many matters as to which the assured may be innocently silent,-he need not mention what the underwriter knows." Again, he says, "The reason of the rule against concealment is, to prevent fraud and encourage good faith." Carter vs. Boehm, 3 Burroughs, 1905.

In illustrating the obligation under which a creditor lies when taking guaranty from a surety, Judge Story says, (Eq. Jurisp., sec. 215,) "Cases of insurance afford a ready illustration of the same doctrine. In such cases, the underwriter necessarily reposes a trust and confidence in the assured, as to all facts and circumstances affecting the risk, which are peculiarly within his knowledge, and which are not of a public and general nature, or which the insured knows or is bound to know." Marshall says, "every act which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, is material."

In commenting on the case of New York Bowery Ins. Co. vs. New York Ins. Co., the editors of American Leading Cases say, (vol. 2, p. 458), "It is obvious, that if the bad character of the party insured can be held material to the risk, as involving the presumption that he may be led, from motives of interest, to connive at or bring about a destruction of the property, the question, how far he is interested to pursue such a course, may also be material, in cases where nothing is proved as to his character, but where it may not be such as to put him beyond the reach of temptation."

It has sometimes been claimed, that the strictness and nicety, required in reference to marine insurance, are not, to their full extent, applicable to policies of fire insurance; on the ground, that the former are entered into, necessarily, almost entirely upon the faith of statements and information communicated by the insured; while in the latter, the underwriters take the risk, or may take it, on the knowledge acquired by an actual survey and examination made by themselves, and not entirely on representations coming from the insured. But the real question is, whether the facts, upon which the chances are to be based and computed, are known

to the insurer, so that there is no difference, in principle, between marine and fire policies, in regard to the withholding of facts; the question being in each case, whether there has been an improper and unjustifiable concealment.

"In every sort of insurance, whether marine, fire, or life, it is held to be one of the plainest principles of equity, that a contract, which one party has been induced to enter into from his ignorance of the thing concealed, shall not be enforced against him by the other, who has concealed it." Angell on Ins. 174, (p. 209). We have seen that, "every act and circumstance, which can possibly affect the mind of a prudent and intelligent insurer in determining whether he will underwrite the policy at all, is material." Now, all the authorities as to insurance agree, that if the concealment is of a material matter, it will avoid the policy, notwithstanding the insured did not intend to commit a fraud. The suppression may occur by mistake, or by ignorance of the importance of the matter withheld; still, the effect is the same upon the insurer, and the policy is made void; for the reason that the risk taken is really different from the risk intended to be taken at the time of the agreement. It will, therefore, be seen, that there is good reason why a concealment, which is the result of accident, ignorance or mistake, is equally fatal to the contract as if it were intentional and fraudulent, when the matter suppressed is material to the risk.

Practically, it is not difficult to determine what fact is material; it is ordinarily a question of fact to be determined by the jury, who are usually instructed, in substance, that any fact is material which, if communicated, would have induced the insurer to demand a higher premium or decline the risk altogether. In treating of the duty of the insured, to disclose all material facts within his knowledge and bearing upon the risk, we do not forget that the insurer is bound to be reasonably diligent in informing himself, and that he should be held to know everything which is open to his enquiry.

As, where the constitution and by-laws of a mutual insurance company do not require from an applicant for insurance

a statement as to the condition of the property designed to be insured, but the by-laws provide for a survey at the instance of the company: it was held by the Supreme Court of Pennsylvania, that the policy was not void, by reason of an omission on the part of the assured to state a fact material to the risk, where no enquiry is made of him on the subject. The court in that case say, "the mere omission by the plaintiffs, when they made their application to insure grain in the mill, to return the corn kiln, or to say anything about it, when it is well known that there are corn kilns attached to more than half of the grist mills and merchant mills, would not excuse the officers of the company, who neglected enquiry from gross negligence.

"No man of common prudence would grant a policy on the grain in a grist or merchant mill, without enquiring into its situation and the situation of the adjacent buildings. As regards this mutual insurance company, under their rules and regulations the evidence would have been irrelevant."

Almost, or quite, all fire insurance companies have their own agents examine the property to be insured, in a majority of the cases when risks are taken by them; and wherever this is done the principle set forth in the foregoing remarks will be applied with greater or less stringency, according to the facts and circumstances: but this will never excuse the applicant, who is explicitly called on for information; he is bound to make as full and exact a disclosure of all matters brought to his notice by such special enquiry, as if it were a case of marine risk, where the insurer has no other means of information than the statements of the insured.

As to the effect, upon a policy, of fraudulent representations, or concealment in a matter not material to the risk, but which was deemed material by the insurer, and which induced him to take the risk; the question has not been so adjudicated as to be beyond dispute: but, in the recent case of Valton vs. the National Fund Life Assurance Company, it was held that such representation or concealment would avoid the policy.

Seventeenth. "Or if the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon," this policy shall be void.

The object of the foregoing provision is plainly, to prevent the accumulation of insurance to such an amount as would not only take away all motive to preserve the property from loss, but also to furnish a strong motive for its destruction. This becomes an exceedingly important matter, when it is known that the moral hazard is a respectable percentage of the real risk run by the insurer. It is well known, that when business in a particular line of manufacture or of traffic is depressed, and stocks are receding in price, all kinds of property in that department are much more likely to burn. This increased percentage is so manifest, as to enter into the business calculations of those holding such risks. Nor is this wholly due to positive dishonesty of insured parties, for every experienced or observing person will have noticed, or upon reflection will see, that most men of ordinary prudence and common honesty will, naturally and almost necessarily, pay closer attention and more constant care to, and will examine more frequently their mills or stores, while business is driving and orders are coming so fast as to require all their energy to fill them, than when all in their department is in comparative idleness.

Under the condition cited above, three questions naturally

arise :

First, What is the meaning of, " any other insurance upon the same property, or any part thereof?”

Second, What kind of notice is a compliance with the condition, when, instead of the requirement that the additional insurance be endorsed on the policy, the condition (as is sometimes the case) merely calls for notice to the insurer? Third, Whether there may be a waiver of this condition? and if so, what amounts thereto ?

First.

What is the meaning of, "any other insurance upon the same property, or any part thereof?" It is clear, first,

that where persons are owners of different interests each may insure his own property and estate, without giving notice that another and distinct interest has been insured by the owner thereof. Where the condition was, Where the condition was, "of any other insurance made on their behalf on the same," it was construed as limited to an insurance effected at the instance and by direction of the assured, and, therefore, that an insurance made on his account and for his interest by a third person, without his knowledge, authority, or subsequent recognition or ratification, was not within the clause. Franklin Ins. Co. vs. Drake, 2 B. Monroe, 47.

The condition cited provides, that insurance upon the same property "or any part thereof," &c., shall avoid the policy: but as conditions are differently worded, and some omit the words last quoted, I shall refer to cases, which have been decided upon the different forms of condition which have been inserted in the policies of different companies.

It has been held, that a policy taken out by the seller of a dwelling house, which the assured had purchased and on which he obtained the policy in suit, was not other insurance within the meaning of the condition, and did not therefore avoid his policy, or compel him, under another clause in the conditions, to receive but a "proportional part thereof;" and that such clauses referred to insurances effected by himself or his associates or agents for his interest. Etna Ins. Co. - of New York vs. Tyler, 12 Wend., N. Y., 507. Affirmed 16 Wend., N. Y., 385.

So, where a warehouseman held a policy on goods, "his own, in trust, or on commission," with condition substantially as above, and it appeared that some of the goods deposited were covered by a floating policy to the depositor, which was not endorsed on the policy of the warehouseman, and which expired before the fire: it was held, that such floating policy was not within the condition, and that the warehouseman and depositor might jointly or cumulatively recover the single and full value of the goods. Donalson vs. Manchester Ins. Co., 14 Cases in the Court of Sessions, 601.

A policy is not avoided under a condition like the forego