Gray, J.

In case of double insurance, that is, of two insurances on the same interest at the same time and against the same risks, the general maritime law and the custom, understanding and practice of merchants have often differed from the common law as to the proportions in which the different underwriters should contribute and the mode of enforcing their liability.

By the general maritime law and the French ordinance of 1681, in case of two policies upon the same property, the *190amount of the first of which equalled its full value, that alone was binding, and the second underwriters were exempt, and returned the premium, reserving one half per cent.; and if the first policy did not amount to the whole value of the property, the second underwriters answered for the surplus only. 2 Valin, 73, and authorities cited. As was observed by Mr. Justice Paterson in Thurston v. Koch, 4 Dall. 350, “ the solvency of the first insurer to the full value being assumed, the ordinance is predicated on the principle that there remains no property to be insured, and of course no risk to be run.” A like rule prevailed by custom of merchants in England in the latter part of the seventeenth century. Malynes Lex Merc. 112, 118. African Co. v. Bull, 1 Show. 132.

Before the American Eevolution the rule of the common law was declared and established, that in this, as in any case of two sureties for the same debt, the creditor might recover the whole amount from either, leaving him to sue the other for contribution. Godin v. London Assurance Co. 1 Burr. 492, 495. Millar on Ins. 266. Marshall on Ins., part 1, c. 4, § 4. See also Fisk v. Masterman, 8 M. & W. 165; Bruce v. Jones, 1 H. & C. 769 In the leading American case of Thurston v. Koch, 4 Dall. 348, xxxii, decided in the circuit court of the United States in Pennsylvania in 1800, the law of England, as thus established before the Declaration of Independence, was held to be binding as law here, although the usage in Philadelphia for years had been to settle losses in accordance with the French ordinance and the early English custom. And that decision has been uniformly recognized and followed, in the absence of express stipulation to the contrary in the policy. Craig v. Murgatroyd, 4 Yeates, 161. American Insurance Co. v. Griswold, 14 Wend. 461, 473, 493. Millaudon v. Western Insurance Co. 9 Louisiana, 27. Cromie v. Kentucky & Louisville Insurance Co. 15 B. Monr. 432. 3 Kent Com. (6th ed.) 280, 281.

But this rule, which obliges the assured to pay a double premium while he secures only one insurance, and allows him to elect, at any time within the period of the statute of limitations, which insurer he will sue and compel to seek contribution *191of the other, (who may meanwhile have become insolvent,) has proved so unsatisfactory to merchants and underwriters, that clauses substantially reviving the older rule have been generally introduced in this' country. And such a clause is contained in the policy now in suit.

The manifest purpose of this clause is in case of loss to fix by the policy itself the amount for which the underwriter shall be responsible, unaffected by the subsequent insolvency of either underwriter or by any choice of the assured. Insurance of the solvency of an insurer is permitted and practised on the continent of Europe, but has never been in use- in England or America. Marshall on Ins. part 1, c. 4, § 3. 3 Kent Com. 280. The contingency in which the liability of the defendants is limited by their policy is not “ if there shall be any prior insurance actually existing at the time of the loss,” but “ if the insured shall have made any other insurance prior in date ” upon the same property, in which is of course implied “ against the same risks, and outstanding at the time of obtaining the second insurance.” The amount for which these defendants as second insurers shall be answerable is declared to be, not that amount which the prior insurers may be unable to pay, but “ so much as the amount of such prior insurance may be deficient towards fully covering the property hereby insured, whether for the whole voyage, or from one port of lading or discharge to another.” In other words, it is determined, not by the amount which can be recovered of the prior insurers, dependent upon the contingency of their solvency; but by the sum insured by them, as expressed on the face of their policy. The premium to be returned is not merely upon so much of the sum insured as the defendants shall not be required to pay, by reason of its being recovered of the earlier underwriters, but upon so much of the sum or for such part of the voyage insured by them as they “ shall be exonerated from by such prior insurance,” that is, by the fact of being thereby already insured.

The stipulation does not indeed apply unless both policies according to their terms cover the property at the time and place of the loss. It was therefore held in Kent v. Manufacturers' *192Insurance Co. 18 Pick. 19, that ii the first policy had expired by its own limitation of time before the loss, the second insurers were liable. But the court said, in illustration of the proposition that the clause regulated the extent of the liability which the second underwriters incurred, “ If, for example, the subsequent policy covers the same vessel, voyage and risks, as were covered by the prior policy, the assured would not by the terms of the contract be entitled to recover anything upon the subsequent policy.” And it is well settled that nothing done by the parties to the first policy after the execution of the second can alter the relative situation of the parties to the latter, as fixed by the terms of their own contract. It was therefore held by Mr. Justice Story that a discharge of the first policy by agreement of the parties to it, after the making of the second policy, though before any risk attached under the latter, had no effect upon it. Seamans v. Loring, 1 Mason, 127. In Macy v. Whaling Insurance Co. 9 Met. 354, this court approved of that decision ; and held that the cancelling of the first policy after the making of a second containing a clause like that now in question, even before the loss, did not increase the liability of the second insurers; for, by a construction which would allow it such an operation, as was said by Mr. Justice Hubbard, speaking for the court, “ The relations of the parties are altered injuriously to the second underwriters without their consent, and the effect is not only to increase - the risk directly, but its tendency, if allowed, would be to make the subsequent underwriters insurers of the solvency of the prior; because, on any misfortune happening to the prior underwriters, by which their ability to pay losses should be impaired or destroyed, the party would cancel his policy to enable him to resort to his subsequent insurers for losses for which they would not be accountable in case of the continuance of the prior policy.” See also McKim v. Phœnix Insurance Co. 2 Wash. C. C. 95; Murray v. Insurance Co. of Pennsylvania, Ib. 189.

The facts agreed in this case show that at the time of the making of the policy in suit the plaintiffs held other policies prior in date upon the same property, to its full valuation, *193against the same risks, which had not been then cancelled, and which would not expire according to their terms until after the time when the loss happened. Upon the grounds already stated, neither the insolvency of the Columbian Insurance Company and the want of funds to pay its liabilities, nor any discharge of those liabilities without the defendants’ consent since they made their policy, could increase the liability which they by the terms of that policy had assumed. We need not particularly consider the effect of the proceedings in the courts of New York; for, even if the corporation was thereby dissolved, (which is by no means clear,) its liabilities would be no more thrown upon the defendants, who were not sureties for the payment of their debts nor insurers of their solvency, than if the prior underwriters, being natural persons, had died or become insolvent without performing their agreement. The very statutes of New York, upon which the plaintiffs rely, by providing a mode in which the policies of an insolvent corporation may be cancelled, imply that if not so cancelled they continue to be existing contracts. Rev. Sts. of N. Y. (5th ed.) part 3, tit. 4, c. 8, § 86. Leroy v. State Insurance Co. 2 Edw. Ch. 673. In re Croton Insurance Co. 3 Barb. Ch. 643.

The cases of fire insurance, cited for the plaintiffs, in which this court has held that a policy, declared on its face to be void in case of previous insurance on the same property, or in case of obtaining subsequent insurance, was valid if the only other insurance was void for misrepresentation or by its own terms, have no application to this case ; for they were not decided, as the learned counsel argued, upon the ground that such other insurance was worthless and could not be enforced, but upon the ground that it was in law and in fact no insurance.

As the defendants’ policy never attached, the plaintiffs, as was admitted at the argument, are entitled, upon the second count in their declaration, to Judgment for a return of prtmium.