10 dissenting. I dissent be-cause I think the defendant’s second exception should be sustained, as the Circuit Judge erred in refusing defendant’s fifth request therein referred to; and also erred in the comments made by him on such request. There can be no doubt that one of the most material issues in the case was, whether the defendant company knew, through its agents, Chase & Sons, that there was other insurance on the house at the time the policy was issued; and upon that issue the testimony was directly conflicting — the plaintiff’s testimony being one way, and that of Chase, the agent, the other. This was a question of fact, pure and simple, and should have been left to the jury without any comments by the Judge. It may be that both of these witnesses were honest in their testimony, as it may be that plaintiff did say to Chase that there was other insurance on the house, and yet, if the agent did not hear this remark, or did not understand it, then it could not be said that the agent knew that there was other insurance on the house. There certainly was some discrepancy in the testimony of plaintiff as to what he told Chase when he went to take out the policy— especially as to whether he told Chase there was other insurance on the house — at one time saying he told him there was other insurance on the furniture, and at another time saying he told him there was other insurance both on the house and furniture. It seems to me, therefore, that the question of fact should have been left squarely to the jury— whether they believed, from all the testimony, that Chase knew, or ought to have known, that there was other insurance on the house at the time he issued the policy, without any suggestions from the Judge as to what they might presume as to the capacity of the agent to hear and understand what the plaintiff says he told him. Such presumptions or inferences were for the jury to draw from the testimony; and it was an invasion of their province fox the Circuit Judge to make any such suggestions as he did make in refusing to charge defendant’s fifth request.