that the value of such goods was in excess of $6000.

Plaintiff offered on the trial to prove that $450 worth of goods in the mill were covered by the Kreidersville Insurance Company's policy, and not by the policy in suit, the application in this case stating that there was an insurance of $2250 on the stock in the Union Mutual Fire Insurance Company of Pennsylvania.

Objected to for the reason that by the terms of the application, which is part of the contract of insurance, and is in evidence, and the policy stipulating that said stipulation are warranties on the part of the insured, and that it appears by said application that it is for insurance on a stock of wheat, rye, oats, corn, flour, feed, barrels, and bags, and in response to question 12, the statement of the insured is that there is $2250 in Farmers' Mutual Fire Insurance Company of Pennsylvania, and that therefore the plaintiff is bound by the stipulations and statements contained in his application, and that the basis of the adjustment is upon the $2250, without the deduction claimed by the defendant, and that it is incompetent and irrelevant, and that it tends to contradict the terms of the written contract in suit, which is the sole repository of the contract between the parties.

Objection overruled. Evidence admitted. Exception. (Tenth assignment of error.)

Plaintiff requested the Court to charge, inter alia, as follows:

"If the jury believe that the actual loss on the property insured by the defendant exceeded the sum of $6000, then the plaintiff is entitled to recover in this suit the sum of $4000, with interest from and after ninety days after proof of loss was made." Affirmed. (Seventh assignment of error.)

Defendant requested the Court to charge, inter alia, as follows:—

"Under the law and the evidence the verdict must be for the defendant." Refused. (First assignment of error.)

mill and the mill burned, causing the loss sued for; this would be such misconduct on the part of the plaintiff as would defeat his recovery in the present suit for said loss." Refused. (Second assignment of error.)

"The plaintiff cannot recover upon a higher or greater valuation of his loss than claimed and sworn to in his statement and proof of loss made to the company, August 2, 1880." Refused. (Third assignment of error.)

"If the plaintiff is entitled to recover in the present suit, there can be no recovery of an amount greater than of two-thirds of the actual value of the property insured at the time of the fire, with interest from the time the loss was payable by the terms of the policy." Refused. (Fourth assignment of error.)

"There can be no recovery of an amount greater than that proportion of two-thirds of the actual value of the property insured together in both policies at the time of the fire, which the amount of insurance in the policy in suit bears to the total amount of insurance in the policy of the Farmers' Union Mutual Fire Insurance Company of Pennsylvania, offered in evidence by the plaintiff, and the policy in suit, with interest from the day the loss was payable by the terms of the policy sued on." Refused. (Fifth assignment of error.)

The Court charged, inter alia, as follows:

"But if he can show, either by his own testimony, or the testimony of witnesses, that that statement was wrong, that in point of fact there was more grain, feed, etc., there, and of greater value than he at that time supposed, then he is competent to give that evidence; and if you are satisfied that there was more grain, and of greater value, then he is entitled to recover to the extent of actual loss in this case." (Eighth assignment of error.)

"If, after you have examined the testimony upon the subject, and should come to a determination of the amount destroyed, and the value thereof in dollars and cents, and that "If the jury believe that on the evening amount should exceed $6000, then the plaintiff before the fire which caused the loss in question would be entitled to $4000, the full amount of there was a fire at the mill stones in the mill, this policy, together with interest from Novemwhich endangered the safety of the mill, and ber 1, 1880, up to this time. If the value of the that by taking off the rim or curve which sur-property destroyed, and I am not speaking of rounded the stones and cleaning them, the danger the other property, the picks, safe, drawing could be guarded against and prevented, and bench, etc., which are insured in the Kreidersthat the plaintiff was then present and knew of the existence and nature of the fire, and was aware that such was a reasonable and necessary precaution, that he had reason to believe that said fire endangered the safety of the mill, and hen did so believe, that he wilfully neglected to ake said precaution, and that by reason of the said fire at the mill stones, and the failure to take said precaution, fire was communicated to the

ville policy, but of the wheat, rye, oats, feed,
bags, barrels, and those things included in this
policy, if they were of the value of $6000 and
upwards, then the plaintiff, if you should find
other things in his favor, would be entitled to
recover $4000, together with interest from
November 1st up to this time.
that property is less, then he is
recover two-thirds of its value.

If the value of only entitled to Suppose, for

cation which declares that the answers of the assured shall be a warranty. Indeed, the entire answer appears ambiguous. Instead of a categorical answer to the question the assured volunteers information that is not called for, and closes with the remark, "And the above is additional on mill and stock." Just what this means we do not know, nor have we been enlightened upon the subject. There is an ambiguity, evidently the result of the ignorance of the assured, or possibly of an agent of the company in filling up the application. But the ambiguity being patent the company should have asked for more specific information if they desired it, and cannot now avoid the policy for such cause.

The fourth, fifth, seventh, and ninth assignments raise the important question of the case. They all relate to the method of determining the amount of the defendant's liability. The defendant contends that there is a double insurance, and that not more than two-thirds of the loss shall be paid in any event. The plaintiff contends that there is no double insurance, and that even if there is, inasmuch as the total loss exceeds the total insurance, the company is bound to pay the full amount of its policy.

Assuming that the object of insurance is to insure, we are in no doubt upon this question. By condition 17 of the policy it is provided: "That if the insured or any other person or parties interested, shall have existing, during It was not error to refuse to affirm the defend- the existence of this policy, any other conant's sixth point. (See second assignment.) tract or agreement for insurance (whether valid The facts recited tend to prove negligence or or not) against loss or damage by fire on the carelessness on the part of the assured in relation property hereby insured, or any part thereof, to the fire. But it was said in Citizens' Insur- not consented to by this company in writing, ance Company v. Marsh (5 Wright, at page 394): and mentioned in or indorsed upon this policy, "One of the purposes of insurance is to protect then this insurance shall be of no effect; and if against losses by mere negligence and careless- consent be indorsed thereon the insured shall ness;" while in the Phoenix Fire Insurance not be entitled to demand or recover of this Company v. Cochran (1 P. F. S. 143) it was company any greater portion of loss or damage held that "When the proximate cause of the sustained than the amount hereby insured shall loss is one of the perils insured against, although bear to the whole amount of such contracts or the remote cause was the negligence of the agreements for insurance (whether valid or not) assured, his agents or servants, the underwriters or made before or after the date of this policy.' are liable, if there be no fraudulent or barratrous And by the application the insured agreed: design." The learned Judge, however, in-"That in case of loss by fire the said comstructed the jury in his general charge that if the pany shall only be obliged to pay as if they had plaintiff had been guilty of gross negligence he insured two-thirds of the actual cash value of could not recover. This was as favorable to the said property, anything contained in said the defendant company as it had a right to ex- application or policy of insurance to the conpect. trary notwithstanding."

Aside from this the point was predicated upon the defendant's theory of the case, not upon its facts. The testimony did not warrant its affirm

"Double insurance," said READ, J., in Sloat v. The Royal Insurance Co. (13 Wright, at page 18, quoting from Arnould on Insurance), "takes place when the assured makes two or more insurances on the same subject, the same risk, and the same interest. If there be double insurance, either simultaneously, or by successive policies, in which priority of insurance is not provided for, all are insurers are liable pro rata. All the policies are considered as making but one policy, and, therefore, any one insurer who pays more than his proportion, may claim a contribution from others who are liable."

The third and eighth assignments do not require more than a word in passing. The Court was asked to say that the plaintiff, having made his proofs of loss, and delivered the same to the company's agent, he is now precluded from recovering a greater sum than is set forth in said proofs. This the Court declined to do, and we see no error in the refusal. There is no magic in a proof of loss which prevents a correction of errors contained therein. Nor is it an estoppel. It is perhaps an open question, whether under It was perfectly proper to show, as was done in the authority of Sloat v. The Insurance Co., a this case, the circumstances under which the double insurance exists in the case in hand, for proofs of loss were made out, and the rest was the reason that the Kreidersville policy covered for the jury. This question was submitted to some articles not insured in the defendant's polthem under proper instructions. The proofs of icy. But the language of condition 17 of the loss were not stronger than a receipt in full, policy in suit, is broader in its terms than the which has always been held to be open to expla-clause of the policy in the case referred to. It nation. (Horton's Appeal, 2 Wright, 294; says, speaking of additional insurance, that if it Hamsher v. Kline, 7 P. F. S. 397.) is "on the property hereby insured, or any part

thereof." Without deciding this point, there- | haps for the very purpose of covering this onefore, we will treat this as a case of double insur- third. Yet if the defendant's contention be susance to the extent that the Kreidersville policy tained, he has obtained no additional protection covered the same property as was insured by the by doing so, and the money paid in premiums defendant company. The result is as follows:- has been expended to no purpose. We do not The defendant's policy was for $4000, based think the clause in the policy referred to can be on a valuation of $8000, and the Kreidersville extended to work such manifest injustice as this. company's policy was for $2250, based on a val- It was intended to compel contribution in case uation of $3000. The Kreidersville policy cov- of a partial loss, thus preventing circuity of ered property admittedly worth $336, not covered action. It applies only where the double insurby the other policy. It may be stated thus:- ance exceeds the loss sustained. The Kreidersville policy is on property valued at Deduct property insured thereby, and not in the other company,

Valuation of property to which both policies apply,

The Kreidersville company insures of this,

$3000.00

336.00

$2664.00

The

We are not without authority to sustain this position. In the Royal Insurance Company v. Roedel (28 P. F. S. 19), there was a double insurance, and the policy contained a clause similar to this. It was held that the loss having been greater than the total amount insured, the policies must be paid in full. And in Sloat v. Royal Insurance Company, supra, it was said by Justice READ: "In the case before us, there is no over-insur$1998.00 ance; all the policies, if paid, will not pay the loss sustained by the assured. A calculation, The two policies therefore cover identical therefore, which will cut down the payments, property to the amount of $5998, which is the must be based on erroneous principles. total insurance. The jury have found that the cases of Richmondville Union Seminary (14 total loss exceeds the total insurance, and it Gray (Mass.) 459); Haley v. Dorchester Insurwould seem clear that the defendant company ance Company (1 Allen (Mass.) 536); Ætna Fire must pay the full amount of its policy, viz., Insurance Company v. Tyler (16 Wend. 385); $4000. But the latter contends that admitting Lucas v. Jefferson Insurance Company (6 Cowan, the loss to be $6000, their liability under their 635), it is believed fully sustain the same docpolicy is not only limited to $4000, say two-trine. thirds of the loss, but that the Kreidersville com- The tenth assignment of error is sufficiently pany must prorate with them, as to the $4000. covered by what has been already said. In other words, they estimate the liability of both Judgment affirmed. companies at two-thirds of the loss sustained, to Opinion by PAXSON, J. be divided between them pro rata. There is no warrant for this in the contract. The clauses in which the words "two-thirds of the actual cash

L. L. Jr.

February 27, 1884.

Washburn's Appeal.

Equity-Ejectment bill-Real estate-
Injunction.

value of the property" destroyed are inserted, Jan. '84, 5.
are used to define the maximum extent of the
liability assumed by the company. Thus the
defendant company may reasonably claim that
its liability extends only to two-thirds of the
actual cash value of the property destroyed. But
their claim goes beyond this, and they say that
under their policy their liability is limited to
two-thirds of two-thirds of the actual loss. We
can see no reason in such a proposition.

Where the title to real estate is in dispute and no special grounds for equitable relief, such as irreparable damage or the like, are disclosed, equity will not interfere by injunction to restrain repeated and threatened alleged trespasses until the rights of the parties have been deter

A. filed a bill in equity against B. praying for an injunction to restrain repeated and threatened trespasses upon a certain alley way and parcel of land the title to which the bill alleged to be vested in A. B. filed an answer denying A.'s title to the premises in controversy:

It is easy to see why in the case of over-insur-mined at law. ance the pro rata principle should apply. If the loss is $10,000, and the insurance $15,000, it is just that each policy should contribute its proportion only. But where the loss is $15,000 and the insurance $10,000, there is no room to apply such a principle. Nor does this work hardship to the defendant company. Had there been no other policy on this property, it is conceded they would have been liable to its full amount. The plaintiff would then have carried one-third of the risk. He took out another policy, per

any

Held, that no special ground for equitable relief being shown, the Court had no jurisdiction in the premises until the rights of the parties should be established at law, and that therefore the bill should be dismissed.

Appeal of Nicholas Washburn, and Maria his wife, in right of said wife, from a decree of the

Common Pleas of Lackawanna County granting | the prayer of a bill for an injunction to restrain appellants from using a right of way claimed by them, and from taking possession of a parcel of land claimed by them.

A. Ricketts (with whom was L. M. Bunnell), for appellants.

The most careful scrutiny of the bill filed in this case will fail to discover any equity set forth therein. It sets forth in the simplest form a dispute as to legal rights only, and nothing calling for equitable relief. It claims distinctly that complainants are the owners in fee simple of certain land; and that respondents "claim to own in fee simple a part" of this. Then again it states that the respondents are trespassers by reason of their using a certain "lane" on the said land.

It is therefore plainly and directly an ejectment bill, and an attempt to substitute a bill in equity for an action of trespass.

North Penn Coal Co. v. Snowden, 6 Wright, 488.
Norris's Appeal, 14 Smith, 280.

Tillmes v. March, 17 Smith, 507.
Haines's Appeal, 23 Smith, 169.

Grubb's Appeal, 9 Norris, 228.

Bill in equity, wherein F. W. Mott and Harriet C. his wife were complainants, and Nicholas Washburn and Maria his wife, defendants, setting forth that the complainants were the owners in fee simple of certain property in the city of Scranton, extending from Main Street on the south to Hyde Park Avenue on the north, known as the Calvin Washburn lot, upon the western side of which is an alley way, sixteen feet wide, leading from Main Street into and over the said property; that the defendants owned and occupied the property adjoining on the west, known as the Nicholas Washburn lot; that the respondents had without any right passed and repassed over the alley above described, and threatened to continue to do so at their pleasure. The bill further charged that the defendants claimed and threatened to enter upon they claimed to own the land in fee simple, and and possess a small part of Calvin Washburn's also to own the right of way, as set forth in the lot, a narrow strip along the western side, bill, because they had just and legal title to the same. Upon this answer thus presented, comincluding a portion of the complainant's buildings erected thereon. And that the complain- plainants joined issue; and thus the issue was ants were and had been in full possession of the plainly and directly as to the legal titles thus alley, and also of the disputed strip of ground, and that the respondents had neither right nor title to either. Wherefore to prevent a multiplicity of actions at law, and for the redress of these repeated and threatened wrongs and trespasses, the prayer of the bill was for a perpetual injunction to restrain the defendants from using the alley way and from taking possession of the said strip of ground.

To this bill a demurrer was filed which was overruled, and an answer was then filed. The respondents claimed the right to use the alley. and denied any wrongful act, alleging that their claim was based on a just and legal title, and that they were justly and legally entitled to the strip of land referred to in the bill, and denying that the complainants were or had been in the possession of the disputed premises. A replication was then filed, whereupon testimony was taken before an examiner. The Master subsequently appointed reported in favor of a decree as prayed for in the bill.

Exceptions to the report were filed on behalf of the respondents which were dismissed by the Court, and the Master's report confirmed, a decree being entered in accordance with the prayers of the bill. The respondents thereupon took this appeal, assigning for error, inter alia, the action of the Court in overruling the demurrer, and in entering the decree of perpetual injunction against the appellants.

The defendants in their answer admitted that

claimed.

It will be observed that the Court below has

not discussed at all the exceptions to the Master's report, but merely affirmed the report, and the case. therefore really comes before this Court directly upon the exceptions to the Master's report.

The cases of Kieffer v. Imhoff (2 Casey, 438)
and of Phillips v. Phillips (12 Wright, 178) rule
this case so far as the merits are concerned.
To the same effect are-

Cope v. Grant, 7 Barr, 488.
P. R. R. v. Jones, 14 Wright, 417.
Cannon v. Boyd, 23 Smith, 179.

But the merits of the case are not properly before the Court for adjudication.

George S. Horn (with whom was W. G. Ward), for appellees.

We contend that it is well settled that a general demurrer admits all the facts charged in the bill to be true. Those facts, we contend, clearly make a case of which equity will take cogni

zance.

With regard to the second assignment of error, we contend that acts which constitute no more than trespass, and for which the aggrieved party has a remedy at law, if accompanied with threats or an intent of a repeated and continuous renewal, fall within the class of trespasses which find status in courts of equity.

Stewart's Appeal, 6 Smith, 422.
Com. v. R. R. Co., 12 Harris, 159.