leged to be in one, but is proved to be in two or more; and it so appears by the pleadings, or in the progress of the suit; the variance is fatal. 10 Mass. 377. The one plaintiff cannot recover his portion of the right, to which two or more are jointly entitled. Less defendants on the other hand is only in abatement. 1 B. & P. 73. in notis. See also 11 Mass. 420.

66

The averment of a joint interest is not supported by proof of a sole interest. Per Thompson, J. in 1 Paines' C. C. R. 615; 4 Mass. 647. But in Foster v U. Ins. Co., 11 Pick. 85, where G. B. & M. were the owners of the vessel and also jointly interested in the property on board, and the policy was cause F. T., for the owners of brig Sampson, to be assured," &c.; and the declaration averred that G. B. & M. were the owners of the vessel to the amount of -; and G. was solely interested in property to the amount of Held, that in such case both the joint and separate property of G. was matter of evidence :-But there being no evidence that the other part owners ordered any insurance or adopted the same after it was effected, they were not insured, and therefore were entitled to recover the premium under the count for money had and received. See the observations of Oakley, J. in De Forest v. The Fulton F. Ins. Co., 1 Hall, 84, 136. In this case, the policy was 'as well the property of the assured, as held by them in trust or commission, contained in store No. 82, South Street ;" and the declaration contained a count averring "that the plaintiffs were possessed of divers goods and merchandise as well the property of the assured, as held by him in trust or on commission, to the amount, &c. to the damage of the plaintiffs, &c.: Held, that proof that the plaintiffs had the goods on commission for sale, as factors, was a sufficient proof of the averment of interest.

66

In a restricted policy, in which the insured is named in the policy, the interest must be averred and proved to be in the person named in the policy. 2 Cranch, 419; 2 Mason, 369.

Every material averment in the declaration must be proved; one of the most material is that of the truth of such warranties as constitute conditions precedent; as the delivering in an account of the loss and damage to the office, with evidence in support of it, according to the rules laid down by the respective offices; the construction of the buildings, if the question be raised; and the nature of the property insured. (Ellis, p. 94.)

The accident of fire, which was the cause of the loss or damage, must also be set forth in the declaration, and proved, if not admitted, as it generally is ; the loss or damage must be shown; and the loss or damage must appear to have happened during the continuance of the risk. ib.

Opinion.—In regard to the admission of the opinion of an insurance broker as to the materiality of the facts not communicated.

In Carter v. Boehm, 3 Burr, 1905, Ld. Mansfield thought that such evidence was inadmissible. So also thought Ch. J. Gibbs in Dayrell v. Bederley, Holt, 283.

In an action on a fire policy, the question before the court was, whether the accounts of stock had been made bona fide at the time they purported to bear date ;-the books were before the court & jury; and the court refused to

admit evidence of persons skilled in hand writing in regard to the time when the accounts purported to have been made: Held, that the evidence was not admissible. Phoenix Ins. Co. v. Philip, 13 Wend. 81.

It was ruled also, that the opinion of others that other dealers in the same articles had much less stock, with a view to show 'fraud, was not admissible. ib.

Where the subject of inquiry is not a matter of skill or science, but simply a question of fact which the jurors are as competent to decide as the witnesses, the opinion of underwriters is not admissible. Thus, in Jefferson In. Co. v. Cotheal, 7 Wend. 72, where the insurance was upon a steam saw-mill, after policy was obtained, the insured enclosed the boiler with a wooden covering, it being on the outside; and the question was whether the risk was thereby increased; and held, that the opinion of underwriters who had not seen the building and who had particular science in the construction of such buildings, was not admissible in evidence.

In a late case, (Rickards v. Murdock, 10 B. & C. 527,) it was held, that the opinions of underwriters were admissible to show the materiality of the facts not communicated at the time of effecting an insurance-Ld. Tenterden saying, "I know not how the materiality of any matter is to be ascertained but by the evidence of persons conversant with the subject-matter of the inquiry." This opinion was adopted in Chapman v. Walton, 10 Bing. 57, where the policy had been effected by a broker; and on the trial of the action sued against the broker, the plaintiff's counsel contended that it was the defendant's duty to have procured the insertion of "liberty to proceed or touch at any of the Canary Islands." The defendant's counsel, on the other hand, called several policy-brokers, and putting into their hands the policies, the bills of lading, and invoices of the goods, and the supercago's letter, asked them what alterations of the policies a skillful insurance-broker ought, in their judgment, to have procured, having these documents in his possession, and being instructed to do the needful. The answer being for the defendant as well as the verdict, the court discharged a rule for new trial, moved on the ground that this evidence had been improperly admitted. The Ch. J. in delivering the judgment of the court observed," But it is not a simple abstract question, as supposed by the plaintiffs, what the words of the letter mean; it is what others conversant with the business of a policy-broker would have understood it to mean and how they would have acted under it under the same circumstances."-He concluded by saying," The decision in this case appears to be consistent with the principle laid down by Mr. Justice Holroyd, in Berthon v. Loughman, 2 Star. N. P. 258, that a witness conversant with the subject of insurance might give his opinion, as a matter of judgment, whether particular facts, if disclosed, would make a difference as to the amount of the premium-a principle which has been confirmed by the case of Rickards v. Murdock, 10 B. & C. 527; and it is difficult to reconcile the opinion given by Ld. Ch. Justice Gibbs, in the case of Durell v. Bederly, Holt, N. P. C. 283, with the judment of the Court of King's Bench in the case last referred to. We think, therefore, both on principle, and on the authority of the decided cases, the evidence was properly admit

ted." In a subsequent case, which arose out of the same transaction as Rickchards v. Murdock, it seems to have been considered that the evidence is inadmissible. Campbell v. Richards, 5 B. & Adol. 840.

The question, therefore, of admissibility can hardly even now be considered as settled; for opposed to the decision of the King's Bench in Campbell v. Richards, is the opinion in Rickards v. Murdock, recognized by the Court of Common Pleas in Chapman v. Walton, 10 Bing. 57. "The difference is, however, (says a learned writer, Smith's L. C. 286,) less upon any point of law than on the application of a settled principle to certain states of facts; for, on the one hand, it appears to be admitted that the opinion of witnesses possessing peculiar skill is admississible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowlegde of it; see Folkes v. Chadd, 3 Dougl. 157; R. v. Searle, 2 M. & M. 75; Thornton v. R. E. Assurance Co., Peake, 25; Chaurand v. Angerstein, Peake, 44; while, on the other hand, it does not seem to be contended that the opinion of witnesses can be received when the inquiry is into a subject-matter, the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it. Now, the question of materiality in an insurance seems one which may possibly happen to fall within the above two classes, for, setting out of the question the case of life-policies, where the material evidence is unquestionably scientific, and necessary to enable the jury to come to a right conclusion, it is submitted that it may happen, even in cases of sea-policies, that a communication, the materiality of which is in question, may be one respecting the importance of which no one except an underwriter can, in all probability, form a correct opinion. If such a case were to occur it possibly would not be considered as falling within the decision in Campbell v. Richards. In that case the facts concealed were of the very simplest nature; a vessel which sailed after the one insured, had arrived 39 days before it; and it was easy without much experience in the business of an underwriter to divine the probable fate of the ship insured under those circumstances."

CHAPTER X.

OF ASSIGNMENT OF POLICIES.

the

1. Assignment in general.—Upon reasonable principles, offices should have power of exercising a discretion in the selection of the persons whose property they may be called to insure, and of late years frauds and fraudulent claims upon fire offices have been so frequent, and to so large an amount, that an attention to the character of the party proposing to insure, has become a subject of considerable importance.

Policies against fire are personal contracts with the assured; and they do not pass to an assignee or purchaser without the consent of the underwriters. Lynch v. Dayrell, 3 Bro. P. C. 497. The Sadlers' Company v. Badcock, 2 Atk. 554; and the Chancellor, in 16 Wend. 397. If the assured, therefore, sells the property and parts with all his interest therein before the loss happens, there is an end of the policy unless it is assigned to the purchaser with the assent of the company; or if he retains but a partial interest in the property, it will only protect such insurable interest as he had at the time of the loss. ib.

Without reference to illegality, it would be highly dangerous to permit any trafficking in policies against fire, and offices would be extremely negligent of their duty to the public if they consented to pay upon a policy where there was no accompanying interest. The English policies contain a provision in the printed proposals, that upon the death of an insurer, his interest in the policy shall be continued in his representative, to whom the property belongs, provided such representative, before any new payment be made, procure his right to be indorsed on the policy at the Office. See Ellis, p. 69.

The insurers, in assuming the risk, provide for the continuance of the assured's interest in the property covered, so long as their liability continues. But when the property is alienated, that is, when the assured is divested of title by sale or in any other manner, the policy becomes a nullity. Upon general principles applicable to fire insurance, the person insured cannot convey the estate insured and assign the policy, so as to render it valid in favor of the grantee and assignee, unless by consent of the insurer. But where the act of incorporation of a mutual insurance company provided that "when the property insured shall be alienated by sale or otherwise, the policy shall thereupon be void," &c.; and the property insured was a store and stock of goods; and a sale having been made of the goods, a verbal lease was given of the store; but before the time in the policy had expired, the insured took back both the

goods and store: Held, that this was not an alienation of the store; at most it was only a tenancy at will and so no alienation, which means a transferring of the property of a thing to another. Lane v. Mutual Fire Ins. Co., 3 Fairf R. 44. The policy was intended to cover and did cover whatever goods the plaintiff might have in his store, at any time during the continuance of the risk, not beyond the amount actually insured, without being confined to such goods as were in the store at the time of assuming the risk; there being no difference in principle between the case where the quantity is diminished by a partial sale and then replenished, and where the whole is sold and an entire new stock purchased. Per Parris, J. in ib. In either case there is a risk, limited in amount by the contract, which was assumed by the insurer, and for which the insured has paid the stipulated premium.

If the assignment be absolute, so that no property or interest remain in the plaintiff at the time of the loss, then, according to decided cases, the contract is avoided. The plaintiff cannot recover, because he has suffered no loss, and the assignee cannot recover, because he is no party to the contract. Carroll v. Boston Mar. Ins. Co., 8 Mass. 515; Locke v. North Amer. Ins. Co., 13 ib. 61; Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249. But in these cases it is decided, that notwithstanding a conveyance, if it be in the nature of a mortgage, or in trust with a resulting trust to the insured, so that he has in truth an insurable interest in the property, he may nevertheless recover to the extent of his actual loss. Per Parker, C. J., in Lazarus v. Commonwealth Ins. Co., supra. However, where the assignment was upon condition, that the creditors, for whose benefit it should be made, should release and discharge their debts, and they were so released and discharged, this changes the transaction and takes from the plaintiff all interest in the property; except, by the assignment, the plaintiff has the surplus, if any should remain after paying the debts; and it be shown that the property conveyed is of greater value than the debts, and that a discreet appropriation of it will leave a surplus. ib. If notwithstanding the assignment a subsisting interest remain in the insured; as in the case of a conditional transfer to secure a debt or a liability, he continues to be interested so as to have a right to recover in case of loss; although the mortgage or pledge be to the full value. Gordon v. Mass. F. & M. Ins. Co., supra. The deposit of the policy gives a lien on it at law. Wells v. Archer, 10 S. &. R. 412.

Where the right in equity to redeem a house under a mortgage, was sold on execution: held, that as the law provided for a still further right to redeem, he had an insurable interest in the house. Strong v. The Manufacturers' Ins. Co., 10 Pick. 40. This right might be a valuable interest; and no evidence was offered to show that it was not.

Although a person may have become possessed of the premises or goods before the time of the fire, if the policy which covers them be assigned to him after the fire happens, and without the consent of the office, he cannot recover. In the language of Ld. Ch. King in the case of Lynch v. Daryell, supra, these policies are not in their nature assignable, nor is the interest in them ever intended to be transferable from one to another, without the express consent of the office. And the same doctrine was recognized by Ld. Hardwicke in the subsequent case of The Sadlers' Co. v. Badcock, 2 Atk. 554.