It is provided in the policy on which this action is brought, that if the assured or his assigns “ shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this company, and have the same indorsed on this instrument or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.” After the making of this policy, the assured obtained other insurance on the same properly, but did not have the same indorsed on the policy or otherwise acknowledged by the defendants, in writing. Yet the judge before whom the trial was had, instructed the jury that if the facts were, as testified by Holbrook and Smith, the assured had sufficiently complied with the foregoing provision in the policy. We are of opinion that this instruction was wrong, and that for this cause the verdict must be set aside. See Forbes v. Agawam Mutual Fire Ins. Co. 9 Cush. 470.
A new trial in this court must be ordered, unless the plain-Jiffs elect to discontinue or to become nonsuit.
Thomas, J. did not sit in this case.