ment of an account of all the losses, which have occurred during the whole of such time, the premium and deposit have not been absorbed in the payment of losses. He also makes himself liable, to pay assessments to a limited amount, in order to pay losses to other members, should any occur within the time, which the sums received for premiums and deposit might not be sufficient to cover. Such being the contract between the parties, there seems to be no ground to hold, that it is terminated by the payment of any loss. The assured, by his deposit note, is liable to assessment according to the terms of the policy, during the whole term; and the land on which the buildings stand is subject to a lien for its security. Were it not for the express limitation in the policy, as to the amount of the sum insured, we do not see why the company might not be liable for successive losses. The distinction between the contract of fire insurance and that of marine insurance, and the mode of adjustment and satisfaction, is marked and obvious. In fire policies, the assured recovers the whole loss, if within the amount insured, without regard to the proportion between the amount insured and the value of the property at risk; whereas, in marine policies the insurer pays only such a proportion of the actual loss, as the sum insured bears to the value of the property at risk. For instance, on fire policies, if the sum insured be $2000, on property worth $10,000, and the assured sustains an actual loss on the whole, he recovers the whole $2000. But in a like case on a marine policy, he would recover one fifth only, or $400; being the proportion which the sum insured bears to the value at risk; the assured himself bearing the other four fifths of the risk. The result is, that every settlement of a loss by fire is in the nature of an adjustment of a partial loss, although it may amount to the whole sum insured. It is the payment of the whole actual loss sustained, on the whole property at risk, not exceeding the sum insured, without regard to any apportionment between the sum insured and the property at risk, or to any abandonment, or technical or constructive loss or salvage. We can, therefore, perceive no analogy between the rebuilding of the sta

bles, though it fully replaced the former structures, and the payment of a total loss. It was clearly not to the amount insured; and it is not competent for the defendants to say, that it was over valued; the value having been agreed on by the parties.

"In the absence of fraud,-such fraud as would invalidate the policy, the valuation is conclusive on both parties. The sum insured on each building being $1000, the assured is entitled to indemnity thereon to the amount of $1000, and this was not exhausted by paying the several sums of $800 and $350 towards rebuilding, any more than it would have been by paying the plaintiff the like sum of money.

"The court are, therefore, of opinion, that he is entitled to judgment for $550, being the difference between the sums insured and the sums paid for former losses on the two buildings."

Where premises were insured in two separate companies for distinct sums, and each contract of insurance contained the same stipulations on the subject of electing to rebuild, and both companies united in notifying the insured of their election to rebuild after the loss: it was held, that the insured might maintain an action against such companies, jointly or severally, for a breach of the contract to rebuild. Morrill vs. Irving Fire Ins. Co., 33 N. Y., 429.

A policy of insurance contained a condition to the effect, that it was optional with the insurance company in case of loss to rebuild or repair the building within a reasonable time, giving notice of their intention to do so within thirty days after service of the preliminary proofs. Immediately after a loss by fire, the plaintiff laid a new foundation and proceeded to erect a new brick building. Within thirty days, the defendants gave notice that they availed themselves of the option, and would rebuild the property. It was held, that, under these circumstances, the contract became substantially a building contract, and an action on the policy to recover the loss would not be sustained. Beals vs. Home Ins. Co., 36 N. Y., 522. Where a company should elect to rebuild, and in pursu

ance of such election should replace a building or other property, it is not probable that any court would authorize an allowance in favor of the company, for the difference between new and old, or permit them to leave the building unfinished for such reason. The effect of the decision in Massachusetts, (11 Metcalf, 195), would be narrower than that, and would, probably, be deemed a mere discussion of the effect of the fact, that new is really better and more valuable than old, in connection with the reservation of optional right to rebuild, upon the amount of money damages due in a case in which the company elect to pay, and the question is, what amount should be paid? Whether, when the terms of a policy authorize the underwriters, within a limited time after proof of loss, to elect to replace the property lost or damaged by the fire, they are entitled to an injunction to restrain the assured from removing or disposing of his goods, until after the expiration of the time limited, in order to enable the underwriters to take an inventory, &c., with a view to such election, is not settled: but, if the assured should, without sufficient excuse, refuse to allow the underwriters to take such inventory, or to make an examination of the goods saved from the fire, and proper scrutiny as to the alleged loss, it would authorize a jury, in a suit brought upon such policy, to presume, that the statement and estimate of loss by the insured was in bad faith. A petition asking for an injunction in such a case was dismissed by Chancellor Walworth, in N. Y. Fire Ins. Co. vs. Delavan, 8 Paige Ch. R., 418, who was unable to find any precedent therefor, and said he was not aware of any principle upon which it could be sustained.

Tenth. "This company shall not be liable for theft at or after any fire."

In the absence of precedent, it would seem to be doubtful, whether an insurer against damage by fire would be liable to indemnify the insured against property stolen, at or after a fire.

But the question has repeatedly been adjudicated, and the following (among other decisions) clearly establish such

liability. "An insurance company, insuring against fire, is responsible for the loss of goods stolen during the fire, there being no exception in the policy of goods or property so taken. Tilton vs. Hamilton Fire Ins. Co., 14 Howard, (N. Y.), 363.

So, it has been held, that insurers against fire alone are liable for goods stolen, during, and probably in consequence of, the careful removal of the insured property, by the insurance watchman, from a building in which they would otherwise have been burned. It was held to be a "loss by fire." Tilton vs. Hamilton Fire Ins. Co., 1 Bosw., (N. Y.), 367.

In Maine, in a very recent case, the Supreme Court held, that if the assured use his utmost exertion in protecting and securing the property insured, during and after the fire, a loss by theft must be borne by the insurers. Witherell vs. Maine Ins Co., 49 Maine, 200.

Where the policy provided that, " in case of fire, or of loss or damage thereby, it shall be the duty of the insured to use his best endeavors for saving and preserving the property:" it was held, that goods lost or stolen while in the process of removal, as directed in said clause, from a building actually on fire, was a loss within the terms of the policy, and must be included in the estimation of "damage or loss by fire." Independent Mutual Ins. Co. vs. Agnew, 34 Penn. St., 96.

The exception of goods stolen after the fire meets the decision of the Supreme Court of Missouri in a recent case, Newmark vs. London and Liverpool Fire and Life Ins. Co., 30 Mo., 160.

The policy usually contains a clause, obliging the insured to use all diligence in protecting the goods insured; and it has been held, that where the goods were stolen or injured, in an honest and prudent attempt to avoid a fire, the insurers would be liable. Talamon vs. Home and Citizens Mutual Ins. Co., 16 La. An., 426.

But where a policy contains a clause, such as is quoted as the text of this note, an insurer is not liable for goods stolen while being carried from a building which was on fire, in

pursuance of advice of the fire warden. Fernandez vs. Merchants' Mutual Ins. Co., 17 La. An., 131.

Eleventh. "Nor for any loss or damage by fire, caused by means of, or during, an invasion, insurrection, riot, civil commotion, or military or usurped power."

Damage arising from the wilful and felonious acts of servants or strangers is a risk insured against, and must be borne by the insurers, unless specially excepted in the policy; and this has induced insurance companies to ingraft upon the policy this exception, as also exception 10, immediately preceding:

This sort of exception has been in use for more than a century. It was originally inserted in the conditions of the policies of the London Assurance Company, and was stated thus, "nor for damage happening by any invasion, foreign enemy, or any military or usurped power," and upon its proper construction, the following case arose :

In 1766, a mob was gathered in Norwich, in consequence of the extravagant price of provisions, and a considerable quantity of flour was destroyed; but, upon the reading of the riot act, the crowd was dispersed. Shortly after, a mob was again collected, and burned down a malting-house, which was insured in that office. Upon suit brought by the insured, the company set up the defence, that the damage was caused by an "usurped power." Three of the judges of the common pleas were of opinion, that the words in that policy could not be held to include an ordinary mob, but that they were to be construed in conjunction with the other part of the sentence, and meant a burning or setting on fire," by occasion of an invasion from abroad, or an internal rebellion, when armies are employed to support it, when the laws are dormant and silent, and the firing of towns is unavoidable." Drinkwater vs. London Assurance Co., 2 Wils. R., 363.

The Sun Fire Office adopted into its policies a similar clause, with the addition of the words, "civil commotion," and upon its construction, discussion was had in 1780, before Lord Mansfield