Recovery Back of Losses Paid.

testimony and not its admissibility. Evi- to sustain charge of fraud or willful burndence of statements made by assured asing, the assured can put in testimony to

to his intention to go to another place, and object in going there, morning of day previous to fire, is admissible. Farmers' Mutual Ins. Co. v. Crampton, 9 Ins. L. J. 549; 43 Mich. 421.

137.- A fire insurance company can not maintain a suit against a husband (insured by it) and his wife, a loss having been intentionally caused by the latter, to recover expenses of an investigation of the claim for the insurance, and to have the policy surrendered and cancelled. A felonious burning by the wife without the privity of her husband, is covered by an ordinary fire policy. Midland Ins. Co., v. Smith, L. R. 6 Q. B. Div. 561 (Eng.) 138.- A wife's insurance is not invalidated by the act of her husband in willfully setting fire to the insured property, in her absence and without her complicity. Perry v. Mechanics' Mutual Ins. Co., 11 Ins. L. J. 390; 11 Fed. Rep. 485.

support his character for honesty, integrity and truthfulness. Mosley v. Vermont Mut. Fire Ins. Co., 13 Ins. L. J. 97; 55 Vt. 142.

144.- Defense of arson need only be proved by a preponderance of evidence, but the presumption of innocence exists as in a criminal case, and it is proper to consider the same. Monaghan v. Agricultural Fire Ins. Co., 13 Ins. L. J. 497; 53 Mich. 238.

145.- Evidence of insured's good reputation for honesty, peace, and good order is not admissible in a suit to enforce the contract of insurance, even although the company charges him with willful burning as a defense. American Fire Ins. Co. v. Hazen, 15 Ins. L. J. 114; 1 Cent. Rep. 631; 110 Pa. 530; Stone v. Hawkeye Ins. Co., 68 Iowa, 737; 15 Ins. L.J. 490.

146.- To sustain the defense of willful burning, company is not required to prove commission of the offense beyond 139.- Company is not relieved from all reasonable doubt, as required in a liability because property is burned by criminal proceeding. In such a case it is assured while in a state of insanity, nor the duty of the jury to find for the party unless the burning was caused by the in whose favor the evidence prepondervoluntary act, assent, procurement or de-ates. Wightman v. Western Marine & sign of the assured. Karow v. Continental Ins. Co., 12 Ins. L. J. 527; 57 Wis. .56.

140. Upon a defense of intentional firing evidence of previous character of insured as to honesty is inadmissible. Stone v. Hawkeye Ins. Co., 15 Ins. L. J. 490; 68 Iowa, 737.

Fire Ins. Co., 8 Rob. 442 (La.); Hoffman v. Western Empire Ins. Co., 1 La. Ann. 216; Schmidt v. New York Union Mutual Fire Ins. Co., 1 Gray, 529 (Mass.); Washington Union Ins. Co. v. Wilson, 7 Wis. 169; Scott v. Home Ins. Co., 1 Dillon, 105 (U. S. Cir.); Mack v. Lancashire Ins. Co., 2 McCrary, 211 (U.S. Cir.); Kane v. Hibernia Ins. Co., 10 Vroom, 697 (N. J.); Huchberger v. Merchants' Ins. Co., 4 Biss.

141.- Insured's right to recover the whole amount of the insurance, is not affected by the willful burning by a third | 265 (U. S. Cir.); Ætna Ins. Co. v. Johnson, party interested in the property, the for- 11 Bush. 587 (Ky.); Simmons v. Ins. Co., mer having no knowledge of the fraudu- 8 W. Va. 474; Blaeser v. Milwaukee Mut. lent act. Grant v. Eliot Mut. Ins. Co., Ins. Co., 37 Wis. 31; Rothschild v. Am. 76 Me. 514. Cent. Ins. Co., 62 Mo. 356; Farmers' Mut. 142. When defense is intentional Ins. Co. v. Gargett, 42 Mich. 289; Johnson burning, every fact which may throw light on the transaction as affecting the motive is competent and proper evidence. For instance, over insurance, excessive proof or claim, assignment of policy out of usual course of business, disposition of goods in an unusual manner just before the burning. Dwyer v. Continental Ins. Co., 63 Tex. 354; prior appeal, 57 Id. 181. 143.- If company introduces evidence

v. Agricultural Ins. Co., 25 Hun, 251 (N. Y.); Behrens v. Germania Ins. Co., 11 Ins. L. J. 787; 58 Iowa, 26; Carlwitz v. Germania Fire Ins. Co., 12 Ins. L. J. 127 (U. S. Cir.); Somerset County Mutual Fire Ins. Co. v. Usaw, 15 Ins. L. J. 781; 2 Cent. Rep. 542; 112 Pa. 80; Continental Ins. Co. v. Jachnichen, 16 Ins. L. J. 491; 8 West. Rep. 535; 110 Ind. 59.

147. Recovery back of losses paid.

Remedy of Company.

If a party insured caused the fire by paid, the case was reduced to simply one which his goods were destroyed, and of a note given for no other consideration should by false representations recover than to avoid prosecution for criminal from the insurer, he may be compelled to misdemeanors, and that plaintiffs could refund what has been paid him. McCon- not recover. Canada Farmers' Ins. Co. nell v. Delaware Ins. Co., 18 Ill. 228. v. Watson, 25 Up. Can. C. P. 1.

148.- Insurers cannot recover money back paid under a policy which might have been avoided by reason of a misrepresentation on the part of the assured, or his agent, if, at the time of payment of such loss, they knew, or upon inquiry might have informed themselves, of the grounds upon which they might have resisted the claim; but if the loss was paid in ignorance of some circumstances attending the loss, and which if known would have enabled them to resist the claim, the money may be recovered back. Mutual Ins. Co. v. Wager, 27 Barb. 354 (N. Y.)

151.- If assured is guilty of a fraud after the fire in connection with his claim for a loss which the company pays, upon its discovery the latter may maintain an action in assumpsit for money had and received to recover amount so paid. In such case it is not necessary to entitle company to sue that it should first return or offer to return to the assured the customary receipt and voucher given by him on receipt of the insurance money. Johnson v. Continental Ins. Co., 39 Mich. 33.

may from the assured, though he has been discharged in bankruptcy. Merchants' Ins. Co. v. Abbott, 131 Mass. 397.

153.- If company overpays insured through fraud or false swearing there is an implied contract to return the excess, as well as a cause of action in tort. In suit upon such an implied contract the

152.- If a loss has happened through the assured's fraud, and he, after adjustment, assigns his claim to a creditor to 149.- This was an action brought whom the insurers pay, the creditor and against the assured and his agent to re-insurers being ignorant of the fraud, they cover back a loss paid. The declaration cannot recover it from the creditor, but alleged that, at the time of the fire, the assured had no interest in the premises; that defendants represented that assured had an interest in the premises, which representation was false and known to be false at the time. Held, that it was incumbent on plaintiffs to prove the fact, according to their allegation, that such representation was made by both defend-company can recover only the excess over ants, or by one with the knowledge and authority and in behalf of the other, and then to prove that this representation was false, by showing that assured had no interest in the house, and sustained no loss by its being burnt, and thereby wrongfully obtained the payment of the loss not due. Berkshire Mut. Fire Ins. Co. v. Sturgis, 13 Gray, 177 (Mass.)

150.- Company after payment of the loss ascertained that the assured had made a false representation as to his being the owner of the property, when it was in fact owned by his father. Assured being threatened with prosecution and arrest for obtaining the money paid to him, in order to avoid it, gave his note to the company for the amount which had been paid, $700. Company having brought action upon the note and the policy not being produced in evidence, and it not being shown that company was entitled to recover back the money

what should have been paid, unless the fire was intentionally caused by the insured. Western Assurance Co. v. Towle, 15 Ins. L. J. 241; 65 Wis. 247.

153a.- An action by a company to recover back a loss paid upon the ground of misrepresentation as to value cannot be sustained when the proof shows only a difference of opinion, and that the company had acted upon its own independent investigation in making the payment. Royal Ins. Co. v. Byers, 9 Ont.

120 (Can.)

154. Remedy of company. Case entertained in equity to compel the delivering up of a policy obtained by fraud, and where fraudulent loss was charged, although an action at law was pending on the policy. French v. Conelley, 2 Anstruther, 454. See also Duncan v. Worrall, 10 Price, 31 (Eng.)

155.- The Federal Court will not entertain a bill in equity, filed by a com

Miscellaneous.

157. The directors of an insurance Section eleven. company fraudulently permitting false Section thirteen. Mortgagor and mortstatements of the condition and assets of the company to be published by its president and secretary, thereby inducing a party to insure in such company are liable for any damage the insured may suffer from the insolvency of the company. Salmon v. Richardson, 30 Conn. 360.

Miscellaneous.

9.

8.- Recovery back of losses paid. Pub. Stat. Mass. 1882, ch. 119, § 181. Georgia Code, 1882, § 2,817. 17.- Misrepresentation to be material Misrepresentation. Georgia Code, only when made with actual intent to 2,803, 2,806. deceive or matter misrepresented in10.- Loss unknown to the parties. creased the risk. Acts Mass. 1887, ch. Georgia Code, 1882, § 2,800. 214, ch. 170, § 21.

1882,

Mistake or

11. Kentucky. Misrepresentation must 18. Minnesota. Claimants who make be material or fraudulent to prevent recov-willful false statements in making claim ery. Gen. Stat. Ky., 1888, p. 308, § 22. or proof of loss, guilty of felony and sub12. Maine. Any misrepresentation of ject to punishment as for a perjury. 1 title or interest in whole or in part, unless Stat. Minn. 1891, § 2,957. material or fraudulent, does not prevent recovery to extent of insurable interest. R. S. of Maine, 1883, 446, ch. 49, § 20. 13.- When insurance was obtained on false representation, or loss sustained by fraudulent act of insured, company may require the insurance commissioner to make an investigation, and report on payment of expenses and ten dollars a day. | claim punishable by fine or imprisonment. 2 R. S. of Maine, 1883, 459, ch. 49, § 85.

14.— Insurance effected by a husband or wife on a dwelling owned by insured and on furniture therein is valid for all the furniture although part may be owned by husband and part by wife. R. S. of Maine, 1883, 444, ch. 49, § 11.

15. Massachusetts. Search warrant may be issued, for property insured which there is reason to believe has been removed or concealed to defraud company. Acts of Mass. 1890, ch. 284.

16. Misrepresentation not deemed material, nor avoid policy unless made with intent to deceive, or increases risk.

19. New Hampshire. misrepresentation must be intentional or fraudulent, or must have contributed to the loss; insurance reduced in proportion as premium paid bears to what ought to have been paid. Pub. Stat. N. H. 1891, p. 485, ch. 170, § 2.

20. New York. A false or fraudulent

N. Y. Penal Code, § 579.

21. North Dakota. Concealment and representation. Comp. L. Dak. §§ 4,119

4,140.

22. Oklahoma. Representation, materiality &c. Stat. Oklahoma, 1890, $$ 3,0763,086.

23. Concealment. Materiality &c. Stat. Oklahoma, 1890, $$ 3,066-3,074. 24. South Dakota. See North Dakota.

25. Utah. Presenting false proofs in support of claim upon policy punishable by fine or imprisonment. Comp. L. Utah 1888, § 4,679.

SECTION V.

This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment and it be operated in whole or in part at night later than ten o'clock, or if it cease to be operated for more than ten consecutive days, or if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering or repairing the within described premises for more than fifteen days at any one time; or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple; or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage; or if with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise; or if this policy be assigned before a loss; or if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasolene, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitro-glycerine or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard, (which last may be used for lights and kept for sale according to law but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight or at a distance not less than ten feet from artificial light); or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.

New York Standard Form. New in phraseology and arrangement.