damaged by fire, but in respect of goods abstracted in consequence of the opportunity which the fire afforded. It does not appear whether the learned Judge directed the jury upon this point, though it might be supposed that a jury would not have found damages to such an extent without a direction to that effect.

"In consequence of the numerous fires which have recently taken place in the agricultural and manufacturing districts by the acts of incendiaries, the offices (in England) in general have been under the necessity of adopting the average clause in their policies upon farming stock, by which, where a person insures property collectively of larger value than the amount insured, he shall only recover in the proportion in which the whole value bears to the part insured. (See Appendix.) For example, if having property worth 10,000l. he insures it only for 1,000l. in case of a fire producing loss or damage to the amount of 1,000l. he will recover only 100l." ib.

"As an encouragement to the insured to use active diligence in the preservation of property after a fire has broken out, it frequently forms a part of the proposals that the office will repay all real and actual expenses incurred in the removal of goods in case of fire. It is indeed difficult to conceive any conduct more nearly approaching to fraud, if not partaking of it, than for a party insured to abstain himself, or prevent others, from using every possible means to extinguish the fire, or save the property from destruction. ib. 3

CHAPTER II.

OF THE PROPERTY AND INTEREST OF THE INSURED.

The wisdom of our law, at the present day, requires that the insured shall be interested in the prosperity sought to be protected. But an insurable interest, in mercantile language, does not necessarily import an absolute right of property in the thing insured. A special or qualified interest is equally the subject of insurance; and it has often been determined, that each distinct interest in the same subject, may be protected by a separate policy, for the party interested in it. Every party who has any special interest to protect, or who represents the property as the qualified owner of it, may insure; and in the latter class of cases, the sole question is, whether the special interest alone, or the entire subject is covered by a policy effected upon the property in the name of the qualified owner. And that question may turn upon the nature of the ownership or interest, the purposes for which the property is held, and the powers incident to the relations of the special owner, or necessary to the safety of the insured premises; or it may be settled by usage or course of dealing. See observations of Chief Justice Jones, 1 Hall, 102, 3. The freight a ship would earn is no part of the damages, unless the goods are on board. Tonge v. Watts, 2 Str. 1250. Risk is the subject of the contract of insurance. If there be no risk, no insurable interest, there can be no contract. It is necessary to prove some interest, to entitle the insured to an indemnity. Hart v. Delaware Ins. Co. 2 Wash. C. R. 350. something in which the insured has an interest, or the Adams v. The Penn. Ins. Co., 1 Rawle, 106, 107. In Lynch v. Dalzell, 4 Bro. P. Ca. 431, ed. Tom. Lord Chancellor King said, in a case where a policy upon a house and goods had been assigned after the fire happened, “the party insured must have a property at the time of the loss, or he can sustain no loss, and consequently can be entitled to no satisfaction." And Lord Hardwicke said, “I am of opinion that it is necessary that the party insured should have an interest or property at the time of insuring and at the time the fire happens. It has been said for the plaintiffs, that it is in nature of a wager laid by the insurance company, and that it does not signify to whom they pay if lost. Now these insurances from fire have been introduced in later times and therefore differ from insurance of ships, because there interest or no interest is almost constantly inserted, and if not inserted you cannot recover unless you prove a property." The Sadler's Company v. Badcock, 2 Atk. 554.

There must be contract is void.

If a landlord insuring wishes to secure the payment of rent from his tenant, in case the premises occupied by him should be burnt, it ought to be specified in his policy; for a landlord, upon a lease containing a covenant for payment of rent, as is usually the case, does not lose his right in consequence of the premises being burnt, and therefore needs no indemnity; besides, rent is not a loss or damage by fire, it may be hazarded or even lost in consequence of a fire, but it never yet seems to have been distinctly held that a policy can cover a consequential loss or damage; for if so, an office might be called upon to compensate for loss of business or misfortunes in trade which might eventually take place in consequence of a fire, and such an indemnity for losses is certainly not contemplated by the insurers.

In considering the interest of the assured, the subject naturally divides itself into the amount or quantity of interest, and into the different sorts of insurable interest.

1. The amount or quantity of interest.—The sum mentioned in the policy is regarded as the extent of the insurer's liability, and not as the measure of the assured's claim. The insurance is against the loss or damage which the party interested in the premises may sustain, whatever the loss or damage may be, provided it does not exceed the sum mentioned in the policy, to which the indemnity is limited. It is not a contract to pay that particular sum in case of loss, nor a stipulation that the value of the property shall, in such case, be estimated at that sum. The undertaking is to pay the amount of the actual' loss or damage, but with the restriction of the amount of the payment of the sum mentioned in the policy. This intentton of the parties is not left to the construction of the terms in which the property is expressed to be insured. The insurers expressly promise and agree in the policy to make good to the insured, or his personal representatives, all such loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property specified in the policy during the continuance of the insurance, the loss or damage to be estimated according to the true and actual value of the property at the time the fire shall happen. These stipulations are general, and apply equally to every species of loss or damage, total as well as partial; and they exclude all pretension to the claim of the sum mentioned in the policy in any case as a valuation of the subject of the insurance, or as liquidated damages recoverable by the insured. The printed conditions annexed to the policy requiring the persons sustaining loss or damage by fire, to give notice thereof to the insurers, and to deliver in a particular account of such loss or damage, signed and verified by oath, and supported if required, by the books or proper vouchers, conclusively show the contract to be understood by the parties as an open policy, and conclude the assured from claiming satisfaction beyond the actual value of the property he loses by the fire at the time of the loss. See Observations by Jones, C. J. in 1 Hall, 45 et seq.

Assuming that the principle of valuation may, by the mutual agreement of the parties, be applied to an insurance against loss or damage by fire, still the policy must be specially adapted to the case, and must express on the face of it the assent of the parties to the valuation agreed upon between them. ib.

The contract of the assured entitles him to recover the full value of the property at the time of the loss, if the full amount is covered by the policy. And if the actual value exceeds the sum insured, he will of course be entitled to the whole amount of his insurance towards his indemnity. The rule or principle of valuation is the actual value of the property ;—its full and intrinsic value is the standard, and not its relative value to the owner. Thus in Laurent v. The Chat. Fire Ins. Co. 1 Hall, 41, a building standing upon leasehold premises was insured to the amount of $800. It appeared in evidence that the lot of ground belonged to Livingston who had leased the same to the plaintiff for a term, which expired on the first day of Sep. 1827, and the building was destroyed by fire on the 15th day of August next preceding. The lease had not been renewed, and the plaintiff had not given any notice of his desire to renew the same, but the lease contained a clause, entitling the lessee to a renewal upon the terms expressed therein. The building was erected by the assured, and according to the evidence was worth about $1000 as it stood upon its location at the time of the fire; but one witness for the defendants stated, that if it had been necessary to remove it from the lot, he would not have given more than $200, for it. The question was, whether the assured was entitled to recover the whole amount of the sum insured, the same falling short of the intrinsic value of the tenement, or whether he was to be restricted to the $200, as the value of it under the circumstances of its being to be removed from the premises. The Court held him entitled to recover the full amount of his insurance. It was contended that the principle of indemnity which pervades the contract of insurance must control the construction of the contract; and upon that principle it was insisted that the value of the property to the assured at the time of the loss, circumstanced as it then was, in reference to his use and enjoyment of it, was the loss he sustained by the destruction of it, and should be the measure of his indemnity for the loss. But the Court said;—" if this principle of indemnity is to be admitted, the extent and value of the recovery will in every case vary, with the special and peculiar circumstances of the insured, and the local advantages or disadvantages of the building, and the uses to which it is applied; and the instrinsic value of the building, will form no criterion of the loss of the proprietor in case of its destruction. A building, for example, which the necessities of the owner compel him to offer at public sale, for ready money, will be worth no more to him than what it will produce at such a sale, and a building for which there happens to be great competition, will command a much higher price than its true value." These incidental and collateral circumstances are not to enter into the estimate of value under the contract of insurance. "It is the tenement upon which the insurance is made; and the actual value of it as a building, is the loss of the insured in case of its destruction by fire. To that measure of indemnity the proprietor is entitled, however unproductive the property may be, and he is entitled to no more, whatever revenue he may have derived from the tenement." By Jones, C. J. ib.

It is the true and actual value of the tenement itself at the time, independ

ently of its location, or the insecurity of the title, or terms by which it is held that the insurers agree to make good to the present proprietor in case the loss or damage by fire happen during the continuance of his ownership, and within the term of the insurance. It is of no importance, whether the tenement stands upon freehold, or upon leasehold ground, or whether the lease is about expiring, or has the full time to run when the fire occurs, or whether it is renewable or not. The condition of the policy is satisfied if the title and ownership are in the insured at the time of the insurance, and at the time of the loss, and the measure of his indemnity is the amount of his interest in the tenement when destroyed by fire, notwithstanding that the whole interest would have expired the very next day, or soon after the loss occurred. But whether there may not be incidents, and special circumstances so intimately connected with the premises, or so permanently attached to them as to affect their intrinsic value, or the insurable interest of the party, who effects the insurance upon them, I am not prepared to say; and it is not material to the decision of the question before us to inquire, for this clearly is not such a case. In this case the tenement belonged exclusively to the insured, and the lease of the lot upon which it stood had 15 days to run, and was moreover renewable." ib..

The insured pays the premium'upon the whole sum, and he insures for the entire risk of the property to that amount, during the whole term of the policy. He has a right, therefore, to claim the amount he thus insures, if he loses property of that value by the peril, during the coutinuance of the risk; but if other considerations are to enter into the calculations of value, and he is to be paid at a reduced rate, because in certain contingencies the property might fail to produce to him the full value of it as it stood at the time of the loss, he will not have the full benefit of his insurance, for which he has paid the full premium. ib.

2. The different sorts of insurable interest.

(a.) The interest of mortgagor and mortgagee; or, the legal and equitable interest of the insured.—“ A bona fide equitable interest in property, of which the legal title is in another, may be insured under the general name of property, or by a description of the thing insured." 13 Mass. 67. And again, “several persons, having several interests, may insure to the full value of that interest." ib.

An insurable interest must be in general either a right of property or a right derivable out of some contract concerning the thing insured. The interest may be either legal or equitable, absolute or defeasible.

Both the trustee and the cestui que trust have an insurable interest, the former in respect to his legal interest, and the latter in respect of the equitable interest. Ex parte Houghton, 17. Ves. jun. 258; S. P. 15 ib. 67.

A vested interest is not necessary to give the right of insuring. Where there is an expectancy coupled with a present existing title, there is an insurable interest. Lucena v. Crawford, 3 B & P. 75; 5 ib. 289. S. C. One,