This is an action upon a policy of insurance. There were two grounds of defence. The first was a change in the circumstances of the insured property, materially increasing the risk, and not communicated to the defendants. This alleged change of circumstances consisted in attempts on three distinct occasions to set fire to the shop insured. The court rejected the evidence, with the idea probably that the object of the policy of insurance was protection against loss by fire — fires kindled by incendiaries included.
The second ground of defence was a subsequent insurance on the same property, without notice to the defendants. The question of fact which arose was, whether the property insured in the second policy was the same as that insured in the first. Upon this point the testimony of the agent of the second insurance company and of one of the plaintiffs was admitted of the declarations, made at the time of insurance, as to what prop*152erty the plaintiffs desired to have their policy cover. We think the admission of this evidence was an error. The contract in writing could not be so controlled.
But we think also that the burden of proof was upon the defendants to show that the property insured in the second policy was the property insured in the first policy ; that upon the evidence reported this burden was not discharged; and that, upon the competent evidence in the case, it does not appear that the property was the same. The result however is to send the case hack for a New trial.