#### *The Charleston Insurance & Trust Company ads. W*Neve, *who sues for the use of C. F. Kohnke.*

*1.*An Insurance and Trust Company have the right, on a trial upon a policy of insurance, to insist and demand the production of the preliminary ■ proof as a condition precedent to the plaintiff’s recovery. But they may, nevertheless, have waived their right to call for such evidence, by some act on their part, when the policy was presented for payment.

2. What is or is nota waiver of the preliminary proof, must depend on the circumstances, and the language used at die time.

3. Where a party took a policy of insurance from an Insurance and Trust Company, upon liquors, groceries, &c., and the same day on which the policy was executed, permission was given by them to assign the policy to a third person, it was held, that the párty'ío whom the assignment was made, was entitled to recover, to the amount of die interest which he had in the policy, notwithstanding the party to whom the policy was granted, had deprived himself of his right to recover, by acts of fraud.

4. The plaintiff, placing the policy in the hands of a third party, to “ assure ” him, by consent of the underwriters, gave to (Khonke) the third party only an equitable interest, but such an interest as a Court of law will recognize, for the purpose of doing justice in a legal proceeding.

*Before*Butler, J. *at*Charleston, *January*Term, 1842, *who reports the facts of the case as folíolos.*

This was an action of assumpsit, on a policy of insurance, made by the Charleston Insurance and Trust Company, dated the 13th day of May, 1839. The amount insured was two thousand dollars, and the property insured was described in the policy as “ stock groceries and *238liquors, contained in the two story wooden • house with shingle roof, situated at No. 31, State-street, and occupied by the assured in the *grocery*business, as described in the offer, No. 1983, filed in this office.” It was in evidence, that this store, which was a grocery and liquor store, had belonged to C. F. Kohnke ; that in May, 1839, (the precise day was not fixed in evidence,) Kohnke had sold out the stock to William Neve, for the sum of two thousand and two hundred dollars, and of this sum twelve hundred dollars were paid in cash, and to secure the balance, Neve confessed a judgment in favor of C. F. Kohnke, for one thousand dollars. The confession of judgment appears to have been entered up in the office of the clerk of the Court of Common Pleas, for Charleston district, the same day that the policy was executed. At the time of the execution of the policy by the defendant, permission was granted to Neve to assign the policy to C. F. *Kolmke.*A day or two after the date of the policy, Kohnke, being about to leave this country, placed the policy in the hands of John Klinck, who seems to have been his agent. There was no assignment of the policy, in writing, from Neve to Kohnke, at the time that it was delivered to Kohnke. The assignment which is now on the policy, was written subsequently to the commencement of the suit. The sale from Kohnke to Neve was an absolute sale, and Kohnke seems to have retained no interest in the stock, except through his confession of judgment. In November, 1840, Neve applied for insurance on the stock in the same store, to Alexander Robinson, agent for the Columbia Insurance Company. They could not agree as to the rate of premium, and no insurance was at that time effected. The first day of January, 1841, Neve again applied to Mr. Robinson for insurance. Mr. Robinson exhibited some surprise, and asked him if he had been his own underwriter, and asked him, also, if there was any other insurance on the property *'l*Neve told Robinson that there was no other insurance on the property, and after an examination of the premises, Robinson, as the agent of the Columbia Company, insured the stock. The policy of the Columbia Insurance Company described the property insured as follows: “ A stock of groceries, liquors, wines, <fec., con*239tained in the two story wooden building, with shingle roof, and in the cellar, No. 31, State-street, Charleston, occupied by him (William Neve) in the grocery business, and as a residence.”

On the night of the 27th of April, 1840, the building and entire stock was consumed by fire, and on the 28th, the next day, Neve rendered in a statement to the defendants of his loss, amounting in the aggregate, to $6,500. A question was made in the case, as to the statement, and I have annexed a copy of it to this report. The same day on which Neve rendered his statement to the defendants, or soon after, Mr. Moise, who was the legal adviser of Kohnke, and in whose possession the policy had been placed by Mr. Klinck, the day after the fire, went to the office of the defendants, and gave to the President, Mr. Street, notice of the claim of Kohnke, and seemed to have inquired as to the intention of the Company, for Mr. Street informed him, that he would prefer to submit the matter to the board of directors, before he would give an answer. The next day, or soon after, Mr. Moise called again, and Mr. Street then informed him, that the Company declined paying the amount, because Neve had effected a second insurance, and because the directors believed that the premises had been fired by Neve, or some objection similar in substance, and manifesting that they supposed Neve had not acted fairly in the matter. Nothing further passed between the parties — and soon after, this action was commenced for the present plaintiff.

At the trial of the case, the fire, and the destruction of the building and contents, were proved. The value of the stock was not a matter concerning which the witnesses agreed. The stock in the store was proved to have consisted of groceries, liquors, and some inferior or common dry goods, such as homespuns. And it seems that one side of the store was kept for these dry goods, but the value, as a portion of his stock, was not proved, except generally, that the goods were of a common kind.

Mr. Estill thought the whole stock worth about $4,000, but his opinion was based upon the price that Neve had asked for the stock about six months before the fire, on some occasion when Estill introduced a friend of his to *240Neve, in consequence of learning from his friend, that he was desirous of engaging in that kind of business, and learning also from Neve, that he was desirous of selling out his interest in the stock, and changing his business. Except from this circumstance, and a cursory view of the store, when he was making his purchases, he professed to know nothing of the value of the stock. Mr. Burckmyer thought the stock was worth about $1,500. Mr. Rose, who was engaged to take an account of the stock at the time of the sale from Kohnke to Neve, proved that it was then put down at $2,200. Mr. Robinson thought the stock was not worth more than 2 or $3,000. Upon this proof the plaintiff rested his case.

For the defendants, several objections 'were urged.

1. That there had been no compliance with the 11th condition of the policy — that no certificate, as is required by the terms of that condition, had been proved to have been submitted to the defendants — that a strict compliance with this, was in the nature of a condition precedent, and without proving performance, there could be no cause of action.

2. That the interest of Kohnke in this stock, was not an insurable interest, and if it was, it should have been so described in the policy, and so represented at the time of making the insurance.

3. That there was no assignment of the policy. That mere delivery of the policy did not give the holder the right of an assignee, but only of a depositary, who had no higher right than the original assured.

4. That the policy being void, so far as Neve was concerned, by the second insurance, which he had made without notice, it was void also in the hands of all parties who claimed through him.

5. That there was sufficient evidence of fraud, to warrant the jury in rendering in a verdict for the defendants.

In relation to the second insurance, the following provision appears in the policy, “ and if the said assured, or his assigns, shall hereafter make any other insurance on the same property, and shall not, with all reasonable dili*241gence, give notice thereof to this Company, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no further effect.”

The same grounds that were taken below to resist the recovery, are now taken on the appeal, and I will give the result of my judgment, rather than my reasons for it, on each one, in the order in which they are stated.

1. 1 regarded a compliance on the part of the plaintiff, with the 11th condition in the policy, as a condition precedent ; and that the defendants had a right to require a certificate from a clergyman or justice of the quorum, stating that he believed the property insured had been destroyed accidentally or without criminal design by the plaintiff — no such certificate was produced on the trial. The certificate of one Jeffries was produced, who was not proved to be, nor was he, I believe, either a clergyman or justice of the quorum. From the fact that plaintiff was advertised by plea of the defendant, that such certificate was required, it might be inferred that he could not produce one; for I am inclined to think, that he would have ' regarded it as a sufficient compliance with the condition, if the proper certificate had been produced at the trial. Although this preliminary proof was necessary to subject the Insurance Company to liability, it was, nevertheless, in their power to waive it, and to rely exclusively on other grounds of defence ; and it was contended, on the part of the plaintiff, that such evidence had been waived, when the policy was presented for payment. This depended entirely upon what Mr. Street said to Mr. Moise— Mr. Moise seemed to have regarded it as a waiver, as the proof was not insisted on at the time, and it may have been so — when, however, the agent of the Company said, that his refusal to pay was founded on the belief that Neve had' fired his own house, as well as that he had effected a double insurance, it seemed to me (and I said so to the jury) it was not a waiver of any evidence that was requisite to satisfy the Company that the house was not burnt by design. As I observed by adjudicated cases, that this is always a question of fact to be submitted to a *242jury, I submitted this to the finding of the jury. What is or is not a waiver of preliminary proof, must depend on circumstances, and the language used at the time. In general, I think it is right that the Company should insist on the proof, at the time the policy is presented for payment after the loss.

2. It was apparent that Kohnke had no legal interest in the property insured. His only interest was that of a general lien by his judgment, to the extent of $1,000. 1st, was this an insurable interest, and 2d, was it the interest which the Company had in view at the time the policy was underwritten! I am now inclined to think, as I thought on the trial of the case, (though I did not think so on the trial of another case with which this is connected,) that a lien by judgment may be made the subject of insurance — it is insurable, provided it be made known to the underwriters to be the subject of the policy. The great security which the underwriters have against the risks insured against, is, that the assured shall have an interest to preserve the property — hence, they will rarely insure beyond the interest of the assured. The underwriters consented in this case, that the policy might be assigned to Kohnke, and from that circumstance, they may have • been aware of Kohnke’s interest. I would infer, however, that they supposed the confession of judgment was for the whole amount of the goods sold. I said to the jury, that if they were satisfied that the Company knew what Kohnke’s interest was, they might regard the policy as covering it for his benefit.

3. On this ground I had great doubt — the assignment was not written until after the risk had occurred, but the policy was put into Kohnke’s possession at the time it was executed. Indeed, it was said that Neve never had possession of the paper — was the delivery to Kohnke a good assignment 1 The policy being a chose in action, was not assignable, so as to give the transferee the right to sue on it; or to enforce any strict legal right in his own name. Assignment of such papers will give the assignee such equitable rights as will *be*respected in a court of law, and if the policy was sufficiently assigned, the Court ought to give to the assignee the profit of it, in the name *243of Neve, the original assignee, or the person in whose name the property was insured. For the purpose of having all the points in the case decided, I told the jury that an assignment of the policy by parol, should be regarded as sufficient.

4. If the plaintiff was entitled to recover at all, what should be the measure of damages *1*The action was in Neve’s name, and was brought to recover $2,000 — and a recovery for that amount ought to have been had, if the policy were not affected by a subsequent double insurance. Neve did procure another'policy to be effected in the Columbia office, on a stock of goods of the same description as those described in the policy, and the finding of the jury establishes the fact, which was well warranted by the evidence, that the last policy was procured by fraud and misrepresentation, otherwise it would not have been underwritten by Robinson, the agent of the Columbia office. Where the assured have double policies, they have little interest to take care of the property insured, and might yield to a criminal temptation to destroy it. Was then, the making the second policy a double policy *1*This depends on the character of the first, and Neve’s interest in it. But for the last, the first would have been good for $2,000, to be divided between Neve and Kohnke. As far as Neve’s interest was concerned, I thought it forfeited by his fraud. Did this deprive him of the right of recovering for Kohnke the extent of his equitable interest'? — I thought not. The jury found against the defendants on all points in which Kohnke was concerned, and found for the plaintiff the amount of Kohnke’s interest in the policy, to wit, $1,000 with interest.

*Statement of the loss of William, Neve, on Us stock in trade, at the fvre on the With April,*1840, *in the Charleston Inmrance and Trust Com/pamj, for*$2,000, *assigned to C. F. Kohnke*— stare *situated in State-street.*

Amount of stock in store, $6,500, which consisted of liquors, to wit:

Wine and Brandy, $5,300

Porter, Ale and Cider, ' 200

Groceries, to wit:

Sugar, Tea and Rice, &c. &c. 1,000

$6,500

There was nothing saved.

*244*Grounds of Appeal.*

1. That the condition in the policy, as to the mode and form of stating a loss, is a condition precedent, on the part of the assured, and that until the loss and claim is made as directed in the said condition, there is no cause or right of action against the insurer. That in this case, there was no sufficient proof of a waiver of the preliminary proof, or any part of it.

2. That the party plaintiff, must prove an interest existing at the time of the making of the policy, and at the time of the loss. And that in this case there was no proof of interest at the time of making the insurance.

3. That a policy on groceries and liquors, assigned to a judgment creditor, does not protect the judgment creditor in case of loss. Because a judgment is not an insurable interest, and because if it is, it is not covered by a policy on groceries and liquors, but ought to be described specially.

4. That an assignment of a policy of insurance, to be valid, so as to entitle the assignee to a right of action against the assured, must be a perfect transfer of the right of the assignor, executed in as formal a manner as the instrument to be assigned.

5. That the possession of a policy without assignment in writing, gives the party holding the policy, only the rights of a depositary, and makes him liable to all the defences against the original insurer.

6. That the second insurance by Neve vitiated his. claim, and all parties claiming through him. That Kohnke, being a mere depositary, and claiming through Neve, is barred of all claim, from Neve having avoided the policy by a second insurance, without notice.

7. That the facts of the case sufficiently made out a case of fraud, which is sufficient to avoid the policy of insurance.

8. Because the verdict was in other respects against law.

Magrath, for the motion,

cited first, as to the question of preliminary proof, 6 T. R. 710, 2 H. B. 577, note, 1 H. B. 258, *Hughes*on Ins. 390, Ellis on Ins. 10. The condi*245tions of the policy, Mr. Magrath contended, must be complied with, cited k6 Wend. 488, 2 Pet. 53, 7 Cow. 465, 12 Wend. 457, Phill. on Ins. 156 — 157. The conduct of the president of the company did not dispense with, the necessity of the preliminary proof; was there in the acts of the president any waiver *1*

2. Was there an insurable interest? cited 1 Phill. on Ins. 27, 4 B. P. C. 431, Ins. 18,.

3. If there is an interest it must be set out fully and truly, cited 1 Phill. 64,4 Taun. 331,2 J. Gas. 353, 3 Burn. 1401.

4th. *&*5th. As to the assignment, cited Bac. Abr. Title Assignment, 2 Co. 566, the note J. Phill. on Ins. 11. The assignment must be a perfect transfer of the right of the assignor, executed in as formal a manner as the interest assigned. One in the possession of an interest delivered to him as a lien for his security, has a mere authority to receive in the name of the principal; and hence any defence against him is good, 10 Sarg. Rawl. 412; Harp. 334. He has a mere equity, and is of course liable to the same defences which the original insurer would have. The assignee is considered as the original insurer. 5 Pick. 81, 8 Wheat. 268.

The 6th ground depended upon the previous assignment.

Kunhardt, contra,

said 1st. that the preliminary proof might be waived; and in support of this proposition, cited 6 H. *&*J. 408. The proof will not be required, when payment is demanded it is considered as waived, 2 J. 192.

2nd. Ground, cited Phill. on Ins. 27. If there is a possibility of loss the party has an insurable interest, Phill. on Ins. 53, 1 Marsh, on Ins. 105, 2 *lb.*789. Is it necessary to mention the interest *1*10 Pick. 40, 1 Caines, 276. Both of those cases decide that question in the negative.

3rd. He contended that the policy was for the benefit of *jKohnke,*9 Wend. 404. No act done by *Neve*could affect Kohnke, 1N *&*M’C. 449,5 Wheat: 277,2 Bay, 209; 9 E. 72; Park, on Ins. 280. A party having a partial interest may recover the whole amount assured,' 18 Pick..523.

Moise, on same side, alluded to the attempt of the *246Insurance Company to get rid of their liability, on technical grounds, as being inconsistent with general principles. 1st. Is there any evidence that Jeffreys is not a Magistrate ora Clergyman *1*It is for the defendants to shew that he was not a Magistrate or Clergyman; cited 6 Cow. 404; Dud. 150; 7 Cow. 465. The proof-was waived by the president with the' consent of the directors; this was sufficient, 20 Pick. 389; waiver, or that proof was made, may be presumed ; 2 Wend. 64 ; the silence of the defendants is evidence of a waiver, 10 Pet. 540, 9 Wénd. 404. A mortgagor or mortgagee each may insure, and the mortgagee may insure in the name of the mortgagor, 1 Bay. 246. Interest insurable, Marsh. Ins. 91 91; any thing is insurable, 1 Pet. 163; 3 Kent. Com. 276; pecuniary loss is enough. The consent of the Insurance Company, and the possession by Kohnke, is evidence sufficient of the assignment to him, Harp. 156; payment to the holder, of a bond, endorsed in blank, discharges the obligor. The company made the policy negotiable, by their consent, 1 Hill 172; an assignee may fill up a blank assignment. 3 Coke. Rep. 26; 8 *lb.*85; 1 Salk. 301; 1 Burr. 502, Shep. Touch. 58, 2 Tread. 770. A deed delivered for the use of another is sufficient.

*Curia, per*

Butler, J.

This case presents some questions of intricacy, rather from the confusion with which the parties have made their contract, than from any difficulty in prohouncing on the justice and legal character of the principles involved. Policies of insurance are made on the confidence that the contracts under them will be observed and kept in good faith by all the parties connected with them; and they should be freely and liberally construed by Courts to effect the intention of the parties; when the risk occurs which is covered by the policy, the underwriter should promptly indemnify the assured, without evasion or complaint. On the other side, the policy should always be obtained on fair representation, and the risk should not be subsequently increased by fraud and misrepresentation. The finding of the jury in this case convicts Neve of a fraud, and is a censure on the company for insisting on the preliminary proof, so far as Kohnke is concerned; one may be just, but I think the *247other is not; I thought at the circuit, and am still inclined to the same opinion, that the defendant had a right to insist at the trial on the production of the preliminary proof, as a condition precedent to the plaintiff’s recovery. A majority of the Court think, however, that the proof was waived by the company when demand was made for payment of the policy, and they therefore sustained the finding of the jury on this point. It is always in the power of the underwriter to insist on the evidence alluded to, at the time the policy is presented for payment; and when it cannot be produced by the assured, it would be strong evidence that the risk had not been the result of accident. At any rate, having contracted with the underwriters, that a stranger would do some act to entitle the assured to recover, the stipulation, however unreasonable, must be complied with; I do not think myself that such a stipulation is unreasonable. It is founded in prudence, and should not be dispensed with on the part of the underwriter, when there is good ground to believe that the risk has been brought about by fraud and criminal design. The defendants in this case may have forborne to demand the preliminary proof, under some apprehension that if it had been produced, it might have prejudiced their case on the trial of the main issue. I do not think that any intention of a waiver on their part. But their conduct may have deceived others, who might have been able at the time to comply with a specific regulation, if it had been made. And as they did not make the requisition at the time, it is perhaps right. This point must therefore be regarded as ruled against the defendants by the verdict of the jury.-

All the other grounds resolve themselves into this question. Had Kohnke, at the time the policy was executed, or afterwards, any interest in it that can be recognized and protected in a Court of law *1*And if so, was it such an interest as could not be destroyed by the hand of Neve'? Which involves the further question, had Neve any interest at all in the policy after it was transferred to Kohnke by delivery; retaining no right in himself'? It.is certain that by the terms of the policy Kohnke had no legal interest in it that could be enforced in his own name. The policy is taken in Neve’s name on property of which he *248had the legal title. The premium on two thousand dollars for property valued at three thousand, at the rate of two and a half per cent, was paid by him. In placing it in possession of Kohnke, by the consent of the underwriters, to “assure” Kohnke, as it is expressed, he gave Kohnke thereby only an equitable interest. Such, however, as a Court of law will recognize for the purpose of doing justice in a strictly legal proceeding in the name of the assured. Had the policy been assigned in the most solemn form, it would not have given Kohnke a legal right to sue in his own name, or to insist on any legal right. In such case he would have had no more than an equitable interest. As a depository, he has the same interest, if the policy was delivered to him before the risk happened, of which there could be no serious doubt. Whatever his interest was, though equitable, we think was acquired bona fide by the consent of the company. They knew the circumstances under which the stock of goods was insured; that they were in the actual possession of Neve, while the other had a general lien on them. And the company undertook to protect this general lien by letting the policy go into the possession of Kohnke as his assurance; and they could not deprive him of the benefit of this security without fault on his part. If it had been otherwise, perhaps, the risk would not have happened, as it may have increased Neve’s interest to procure another policy, and diminished his diligence in taking care of the goods in his store. The vigilance of self interest is the eye of prudence; and when that is weakened, the underwriters of a policy increase the danger of their liability. They must do what they intended for Kohnke, and cannot let his rights suffer by the wrongful acts of Neve. We think, therefore, that as this action was in fact for Kohnke’s benefit, he was entitled to be indemnified to the extent of his injury. According to this view, it will appear that Kohnke had not an absolute, exclusive and indefeasible interest in the policy; but that as an additional security to his confession of judgment it was contingent, collateral and cumulative. In no event was it worth to him more than $1000, whilst it might have been worth to Neve $2000. Could it be questioned that Neve had it in his power to redeem this *249security, and to acquire a perfect right to it by satisfying the judgment'? Suppose he had paid off the judgment in two days after it was confessed, would the underwriters of the policy have been entirely discharged *1*Such a pre-tence, on their part, would have been inconsistent with common sense, and their undoubted intention at the origin of their contract. They never could have supposed that they had improved their condition, when they consented that Kohnke should be assured or have an assignment of the policy. They always regarded themselves as liable for $2000, provided goods to that amount should be destroyed accidentally by fire. The fact of suffering two parties to be interested in the same policy, could not diminish their liability. As an action on a policy of insurance is one of indemnity, no party can recover beyond his loss ; and if but twenty dollars worth of goods only had been destroyed by the fire, no party could have recovered beyond that amount; and for the like reason, should no party be allowed to recover beyond his actual interest. The jury, therefore, properly restricted the recovery of the plaintiff in this case, to Kohnke’s loss, notwithstanding goods to a larger amount may have been destroyed; for Neve, by his own unfail dealing, subsequently deprived himself of any right to avail himself of any interest under this policy as it contains the common clause, that if any subsequent policy should be obtained on the same stock of goods, without notice, this policy should be void. As it will appear, in another case, a second policy was obtained without notice, and for that reason it is right that Neve should forfeit his rights under this by his own fraud. It is said, however, that Neve having parted with all right to this policy, he had no interest in it; and therefore, he was at perfect liberty to procure another without notice. That suggests a recurrence to the question, what interest had Kohnke in this policy'? I have before said that he had the defeasible interest of a surety — and I think that this view is fully supported by the final judgment in the case of *Robert*vs. *The Traders Insurance Company,*9 Wendall, 404, 474; 17 Wendall, 631. In that case Robert had procured policies of insurance on certain buildings, which were mortgaged to one Bolton. The policies, by the consent of the com*250pany, were assigned to Bolton. After the houses were burnt, Bolton, in the nameof Robert, recovered judgment on his policies ; this judgment was paid off by and assigned to Robert —who thereby claimed all therights intended for him under the original policy, and it was decided that his right to the policy was restored so soon as he removed the mortgage, or paid the judgment rendered on its foreclosure. The case was elaborately considered and carried through all the Courts of New York. See it as reported in *17*Wendall, 631. Senator Edwards delivered the final jndgment in the Court of Errors. Speaking of this question, he says: “Let us then in the next place inquire how far the rights of the parties were affected by the assignment. Thomas Robert owed Francis Bolton a debt of $5500, secured by his bond and mortgage on the buildings in question, <fec. He owned three policies of insurance, in each of which it was stipulated that the interest of the assured was not assignable without the consent of the company manifested in writing. That right being obtained, (fee., the policies were assigned to Bolton, as collateral security for the payment of his mortgage. Did the fact, that they were so assigned, give Bolton the absolute indefeasible interest in the policies, or only a collateral interest for the time being! I am of opinion that he had only a collateral interest, liable to be divested whenever Robert paid the mortgage; and when the company consented to the assignment, they consented to it for the purposes for which it was made, and this consent gave him the right then; but this could not alter or diminish the extent of the liability of the Company.” This case does go so far as to say that after Robert had made his assignment, he could take another policy on his interest as mortgagor without notice of the policy assigned. I suppose that was on the ground that he could act *bona fide*in taking a subsequent policy whilst the right under the assignment subsisted. Whether I could sanction, by my judgment,, this part of the case, I am not called on to determine. For the right of recovery on the different policies, ■ would depend on the interest at the trial — and the second policy might be worth little or nothing, if there could have been a full recovery on the first. The point I wish to present, *251is that the first policy was not absolutely vested in the as-signee Kohnke — and all that could be recovered on it was Kohnke’s interest, when Neve had forfeited his right under it. Had Kohnke held the policy under an assignment made cotemporaneously with its execution, as his only security, then he would have been entitled to recover the whole amount, provided the goods destroyed were not of less value than that amount at the time of the fire. In *Hambleton*vs. Mead, 2 Burr. 1210, L. Mansfield said — “ the plaintiff’s demand was for an indemnity; his action then must be founded on the nature of the damnification, as it really is at the time of the action brought.” The recovery of Kohnke might have been less than the $1,000, but could not have been more. This shews that he had not the entire interest in the policy; and if the whole amount could have been recovered, it would have been as much for the benefit of Neve as Kohnke — the one having a legal and the other an equitable interest. Neve’s right became extinguished by his taking another policy without notice of the existence of the first. In attempting to procure two policies, he forfeited, by the terms of the policies themselves, his right to recover on either, as will be seen when the case of the Columbia Company comes to be considered. We think the jury have hit the justice of the case, and therefore refuse this motion to set aside their verdict.

Richardson, O’Neall, Evans, Butler and Wardlaw Justices, concurred.