That is a double insurance, where, by different policies, the same interest of the same parties in the same subject-matter, is insured against the same risks; and it is over-insurance if the whole amount insured by all the policies exceeds the whole value of the property insured.

The marine policies of this country usually contain a clause which, however varied, has, and is intended to have, this effect; that if there be any prior insurance, the insurer shall be liable only for so much of the property as the prior insurance leaves uninsured. (k) Possibly the law might now so construe successive policies without this clause; but the clause was introduced because it seemed then to be law, that all the policies attached to all the property pro rata. And if either insurer paid the whole loss, or more than his proportion, he might recover from the other insurers the share they were bound to pay.

If policies are simultaneous, they certainly attach to the whole property all at once, and all alike; (l) and they are sometimes expressly declared to be simultaneous that they may so attach. But if this be not expressly declared, and the policies bear date on the same day, the court will inquire into fractions of the day, in order to ascertain which is prior and which is subsequent; and only when this cannot be ascertained would they be held to be simultaneous. (m)

Priority under this clause, means priority in effecting the insurance, and not priority in the beginning of the risk; and for this purpose, the contract may be shown to have been made at another time than its written date. (n)

(i) Hodgson v. Glover, 6 East, 816.

(j) Patapsco Ins. Co. v. Coulter, 8 Pet. 222.

(k) Whiting v. Independent Ins. Co. 15 Md. 297; Peters v. Delaware Ins. Co. 6 8. & R. 473; American Ins. Co. v. Griswold, 14 Wend. 399.

(l) Potter v. Mar. Ins. Co. 2 Mason, 475; Wiggin v. Suffolk Ins. Co. 18 Pick. 145.

(m) Cases in preceding note, and Brown v. Hartford Ins. Co. 3 Day, 58.

* If the first policy covers the whole property for a part of the time during which the second policy should attach, the first policy is suspended until the second policy ceases to attach, and then the first policy attaches. (o)

If many policies attach to property when they are made, and the property is afterwards diminished in value below the amount of them all, the weight of authority seems to be in favor of discharging the latest policy, then the one next before it, and so on as the property lessens. (p) But doubts have been expressed on good reasons, whether, if there be a diminution in the property after, all the policies have attached, this diminution should not be distributed among them all, pro rata. (q)

If policies provide, as they sometimes do, that they shall be null and void, if any other insurance on the same property be made, unless notice thereof is given to the company, and the same is mentioned or indorsed upon the policy, (r) and such other insurance is made, and not notified, this clause will not take effect if this other insurance be void from any cause. (s) 1 And although there is not in general any double insurance, if the insurances are made by different parties on different interests, in the same subject-matter, (t) yet if two or more persons are insured jointly on the same property, and the policy provides that it shall be void in case of subsequent over-insurance, this clause takes effect if either of the insured makes this over-insurance. (u)

Policies sometimes contain special clauses and provisions in respect to the effect of double insurance or over-insurance. (v)

(n) Lee v. Mass. Ins. Co. 6 Mass. 208.

(o) Kent v. Manuf. Ins. Co. 18 Pick. 19.

(p) Am. Ins. Co. v. Griswoid, 14 Wend. 399.

(q) Am. Ins. Co. v. Griswoid, 14 Wend. 399, per Tracy, Senator; 2 Phillips, Ins. § 1261. See 2 Parsons, Mar. Law, 98, where this question is discussed at length.

(r) Pendar v. Am. Mut Ins. Co. 12 Cush. 469.

(s) Jackson v. Mass. Ins. Co. 28 Pick. 418; Hardy v. Union Ins. Co. 4 Allen. 217; Clark v. New England Ins. Co. 6 Cush. 342; Jackson v. Farmers Ins. Co. 6

Gray, 62; Stacey v. Franklin Ins. Co. 2 Watts & 8. 606. But see Carpenter v. Providence Ins. Co. 16 Pet. 496.

(t) Godin v. Royal Exch. Ass. Co. 1 Burr. 489; Warder v. Horton, 4 Binn. 529.

(u) Mussey v. Atlas Ins. Co. 4 Kern. 79.

(v) As that the policy is void in case of a subsequent insurance unless the insurers are notified of it with all reasonable diligence. Mellen v. Hamilton Ins. Co. 6 Duer, 101,17 N. Y. 609. Or, unless such insurance is assented to by the underwriter. Hale v. Mechanics Ins. Co. 6 Gray, 169.

1 Lindley v. Union Ins. Co. 66 Me. 368; Gee v. Cheshire Ins. Co. 66 N. H. 66; Fireman's Ins. Co. v. Holt, 86 Ohio St. 189.