Page:Federal Reporter, 1st Series, Volume 1.djvu/79

 FEIEMANSDOEP V. WATEBTOWN INS. CO. 71 �are really to be held as contracta between the insurance Com- pany and the mortgagor, and that any act on the part of the mortgagor which voids the policy, such as the violation of any of the conditions of the policy, is good aB against the mortgagee or the person to whom the loss is payable. �ïhe same rule is also applicable to the pleas that are inter- posed in this case. The pleas set up that there were out- standing policies, in violation of the conditions of this policy — other insurance, in other words, outside of the insurance upon this property which the insurance company had the right to stipulate in favor of Nigg — and by reason of such other insurance these policies have become void. �This policy sued upon having been issued to Nigg, I bave no doubt that, although the loss was made payable to Pried- mansdorf, he must lose the benefit of his insurance if there has been any violation of the conditions of that policy by Nigg, the mortgagor. �Under the authority of the cases which I bave cited this suit, undoubtedly, should have been originally commenced in the name of Nigg. That is a mistake, however, which the plaintiff can now remedy, undoubtedly, by amcLdment, if he sees fit to do so. But the question arises whether, if the facts stated in these pleas are true, there would be any use of amending. If it is true that there were outstanding poli- cies upon these premises in favor of George Nigg, contrary to the stipulations of the policy, and which would void it, then it seems to me that those facts would be fatal to the plain- tiff's right of action in this case, and that if the demurrer be carried back to the declaration, and the court holds that the declaration is bad, for the reason that the suit could net be brought in the name of the present plaintiff, the amendment would do no good if the facts continue to exist. �With regard to the third plea, that the premises bave been repaired, there is undoubtedly a conflict of authority, or an apparent conflict of authority, upon the question asto whether this defence can be set up. I do not think, however, that a careful examination of ail the cases will show that there is ��� �