
    [Philadelphia,
    December 22, 1823.]
    WELLS against ARCHER.
    IN ERROR.
    The holder of a policy of insurance with whom it has been deposited as security has a Hen on it at law: and if he receives the proceeds, has the right to retain them against one whose equity is not better than his own.
    Assumpsit for money had and received, brought by Richard W. Wells against Samuel Archer, tried before Duncan, .1. at the Nisi Prius in March last, when a verdict was found for the defendant, subject to the opinion of the court. The state of the case was as follows:
    On the 5th of July, 1818, William, A. Field, deceased, covenanted with the plaintiff, that in order to liquidate a debt of about 2.500 dollars, which he owed him, he would ship goods to the amount of 2,500 dollars out of the commissions which the said Field was to receive as supercargo of the ship America, about to sail on a voyage from the United States to the East Indies and back again, and would consign the said goods to the plaintiff. This shipment was to be on the homeward voyage. And, moreover, the said Field did, by the same instrument of writing, in case of his death, assign and transfer to the plaintiff his commissions on the said voyage, and the proceeds thereof, for the purpose of liquidating the said debt. And on the same day Field gave authority in writing to the plaintiff to effect insurance on his own account on 2.500 dollars, the commissions of the said Field, and the proceeds thereof, as one of the supercargoes of the ship America, out and home. In pursuance of this authority, the plaintiff, on the 15th August, 1818, had insurance made in his own name in the office of the Philadelphia Insurance Company, on commissions outward and goods homeward, to the amount of 2,500 dollars. On the 10th July, 1818, Field had insurance effected on his own account by. the New-York Firemen Insurance Company, to the amount of 4000 dollars, upon his commissions as supercargo of the America. And, on the 11th of the same month, he wrote a letter to the defendant, in which the New-York policy was inclosed. It was proved by parol evidence, that some time prior to the making of the insurance of New- York, Field, being indebted to the defendant, had requested him to be his surety in a respondentia bond to an Insurance Company in New-York for 10,000 dollars, and promised, that if the defendant would comply with his request, he would cause insurance to be made on his commissions as supercargo of the America, and deposit the policy in the defendant’s hands as a security, as well for the sum then due to him,’ as for any loss'which he might suffer by the respondentia, 
      
      bond. The defendant agreed to join in the respondentia bond, and afterwards did join in it. The America performed the outward voyage in safety, and sailed on her homeward voyage, Field being on board with a quantity of goods, the proceeds of his outward commissions consigned to the plaintiff. The ship was wrecked on the coast of New- Jersey, and Field perished. The plaintiff brought, suit in his own name, and -for his own use, on the policy underwritten by the Philadelphia Insurance Company, and received 1,700 dollars. The defendant compromised with the New-York Insurance Company, and received the sum of 1,800 dollars. When the defendant agreed to become the security in the respondentia bond, and received the Neiv- York policy in deposit, he was ignorant of the transactions between Field and the plaintiff. The plaintiff was ignorant also of the insurance effected in New-York, and of the transactions between Field and the defendant. The plaintiff contended that he was entitled to the money received by the defendant on the New-York policy.
    This case was argued by C. J. Ingersoll, for the plaintiff, and Finney for the defendant.
    For the defendant it was contended, that the plaintiff had no right to the money received by the defendant, because all that was intended to be assigned by Field to the plaintiff, was the commission out, and the proceeds of those commissions shipped home, not the commissions on the homeward voyage. Nor indeed could the commissions home have been assigned, because the cargo perished, and they were never earned. No .authority is given to the plaintiff by Field to insure the commissions home, but only the commissions outward, and the goods purchased with them and shipped home. The policy effected by the plaintiff at the Philadelphid Insurance Office shows this: it does not embrace commissions home. If by the assignment the plaintiff obtained the whole interest in the commissions, and the New-York policy was for him, then it is the same interest which was insured by the Philadelphia office, on which the plaintiff has recovered, and it was a double insurance. If the plaintiff alleges that Field effected this insurance for himself, then Field had no interest left to insure, and the money received by the defendant belongs not to the plaintiff, but in conscience to the New-York office, who have paid by mistake. The truth is, the agreement between the plaintiff and defendant looked only to a policy to be affected by the plaintiff, and not to any other. Further, the defendant had no notice of the plaintiff’s assignment when the Neiv- York policy was deposited, nor any circumstance to lead to a suspicion of it He .looked solely to this policy: the plaintiff to policies to bé effected by himself. If the plaintiff knew of this policy, he was guilty of neglect, in allowing it to remain in the hands of Field. The defendant had possession of this policy, and had the fund, he has the legal title, and his equity is at least equal to the plaintiff’s. To make out his title, the plaintiff must establish, 1st, That the matter insured belonged to him. 2d That the policy passed as an incident. 3d, That his right is prior to that of the defendant, neither of which positions can the plaintiff’ support.
    For the plaintiff, it was contended, that it was a case of a conflict of equities, and it must depend on the superior equity. Field was guilty of fraud,and in this fraud of Field’s the defendant’s claim is founded. Field assigned all his interest to the plaintiff and within a week afterwards deposited with the defendant a policy of 4000 dollars on the same interest, never informing the defendant of this assignment, nor the plaintiff of this deposit. That the New-York policy is on the interest assigned, is plain from the words of the assignment: and authority to insure. The former is of “his commissions on the said voyage and the proceeds thereof:” comprehending the whole voyage out and home. The authority to insure is still more express: it is, “as one of the supercargoes óf the ship America out and home.” Suppose the outward proceeds were only 500 dollars, and Field died but on the homeward voyage 5000 dollars were realized: would the plaintiff be entitled to receive only the 5Ó0 dollars towards payment of the 2,500 dollars due to him? By virtue of the assignment the plaintiff could have recovered on the New York policy. Then does the previous insurance here prevent him? A double insurance is where there are two insurances on the same interest and the same risk. But the Philadelphia insurance was “ on commissions outward, and goods homeward,” and theNew- Jor/r policy on commissions on the' voyage home. It is objected that the commissions, if assigned,perished. True, but the policy remained as a security for that loss. The policy, passed to the plaintiff under the word “proceeds:” or if not, it passed as an inseparable incident to the thing assigned. The defendants being in possession of the fund can give him no advantage. He obtained it after a knowledge that the plaintiff had a claim.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action for money had and received,&c. The state of the case is as follows. On the 5th July, 1818, William A. Field, deceased, covenanted with the plaintiff, that in order to liquidate a debt of about 2,500 dollars, which he owed him, he would ship goods to the amount of 2,500 dollars, out of the commissions which the said Field was to receive, as supercargo of the ship America, about to sail on a voyage from the United States to the East Indies and back again, and would consign the said goods to the plaintiff. This shipment was to be on the homeward voyage. And, moreover, the said Field did (by the same instrument of writing,) in case of his death, assign and transfer to the plaintiff, his commissions on the said voyage, and the'proceeds thereof, for the purpose of liquidating the said debt. And on the same day, Ihe said Field gave authority, in writing, to the plaintiff, to effect insurance on his own account, on 2,500 dollars, the commissions of the said Field, and the proceeds thereof, as one of the supercargoes of the ship America, out and home. In pursuance of this authority, the plaintiff on the 15th August, 1818, had insurance made in his own name, in the office of the Philadelphia Insurance Company, on commissions outward, and' goods homeward, to the amount of 2,500 dollars. On the lOtfl July, 1818, Field had insurance effected on his oion account, by the Neio-York Firemen Insurance Company, to the amount of 4000 dollars, upon his commissions as supercargo of the America. And on the 11th of the same month, he wrote a letter to the defendant, in which the New-York policy was inclosed. It was proved by parol evidence, that some time prior to the making of the insurance in New-York, Field, being indebted to the defendant, had requested him to be his security in a respondentia bond to an Insurance Company in New-York, for 10,000 dollars, and promised, that if the defendant would comply with his request, he would cause insurance to be mdde on his commissions as supercargo of the America, and deposit the policy in the defendant’s hands as security as well for the sum then due to him, as for any loss lohich he might suffer by the resdentia bond. The defendant agreed to join in the respondentia bond, and afterwards did join in it. The America performed the outward voyage in safety, and sailed on her homeward voyage. Field being on board with a quantity of goods, the proceeds of his outward commissions, consigned to the plaintiff The ship was wrecked on the coast of New-Jersey, and Field perished. The plaintiff brought suit in his own name, and for his own use, on the policy underwritten by the Philadelphia Insurance Company, and received 1,700 dollars. The defendant compromised with the New-York Insurance Company, and received the sum of 1800 dollars. When the defendant agreed to become security in the respondentia bondj and received the Neto-York policy in deposit, he was ignorant of the transactions between Field and the plaintiff. The plaintiff was ignorant also of the insurance effected in New-York, and of the transaction between Field and the defendant. The plaintiff contends, that he is entitled to the money received by the defendant on the New-York policy. It is unnecessary to consider all the questions which were discussed in the argument. There are many difficulties in the way of the plaintiff’s recovery, but I shall confine my opinion to a single point, which is decisive. The defendant has the law with him, and his equity is as strong as the plaintiff’s. The New-York policy was never assigned to the plaintiff. He never trusted to it. He did not even know of it till after the death of Field. And, even if he had known, and been entitled to the benefit of it, and suffered it to remain in Field’s possession, in consequence of which it was pledged to the defendant for a valuable consideration, and without notice, the defendant would have had a superior equity. But the deposit of the policy gives the defendant a lien on it at law. It was so held by Lord Mansfield, in the case of Godin v. The London Insurance Company, 1 Burr. 494. The case stands thus then: the defendant has received the money in controversy'', under a legal right, and there is nothing which in equity, or good conscience, can bind him to refund it. .-Consequently, the plaintiff cannot recover.

Judgment for defendant.  