having an equitable interest in property,, may insure to the full value of that interest, although the legal title is in another. And the insurance may be made upon the property generally, without representing the interest he has ; unless there should be a concealment, after enquiry, of the true state of the property, or a false affirmation or representation. Thus, where the cargo of a ship was pledged as security for the money with which it had been purchased; the bill of lading and invoice being in the name of the lender, who was to receive his pay from the proceeds thereof; but the surplus was to belong to the borrower, for whose account the cargo was shipped: Held, that the latter had an insurable interest in such cargo. Locke v. North America Ins. Co. 13 Mass. 61. A mere equitable title, or any qualified property in the thing insured, may be legally protected by insurance. Columbian Ins. Co. v. Lawrence, 2 Pet. R. 25. A legal title to the property insured is not necessary to give validity to such a contract. And it is well settled that a mortgagor may protect his equitable interest at any time until actual foreclosure of the mortgage. Per Wilde, J. in Strong v. Manufacturer's Ins. Co. 10 Pick. 40. The value of the interest is not material; if the plaintiff had an insurable interest at the time the policy was effected, and an interest also at the time of the loss, he is entitled to recover the whole amount of damage to the property, not exceeding the sum insured. ib. A right in equity to redeem, may constitute a valuable interest; and independently of any circumstance tending to show that a right of redemption is a valuable interest, the law will presume that it was, the contrary not appearing. ib. The same principle was recognised in Tyler v. Aetna Fire Ins. Co. 12 Wend. 507; 16 ib. 385. S. C.

A mortgagor and mortgagee may each insure the same building, and their particular interest need not be described in the policy; it may be described as the property of the insured. The nature of the interest need not be disclosed. Thus, a mortgagor effected an insurance and with the consent of the insurers assigned the policy to the mortgagee. Subsequently, the mortgagor effected another insurance at another office, without notice to the first insurers; and it was held, that the mortgagee was entitled to recover on the first policy, in the name of the mortgagor, although there was an express condition in the policy that the policy should be void in case of a second insurance and neglect of notice by the assured or his assigns. The Traders Ins. Co. v. Robert, 9 Wend. 404. A mortgagor may represent the estate mortgaged as his property, although the legal estate is in the mortgagee. By Wilde, J. 10 Pick. 535.

Although the mortgage is to the full value of the property, the mortgagor has an insurable interest, 2 Pick. 249; yet if the assured make an assignment of the subject of insurance for the benefit of his creditors, he must show a probable surplus in order to entitle him to recover. Lazarus v. The Commonwealth Ins. Co. 5 Pick. 76.

A plaintiff in possession under a contract of purchase, and having made a payment and valuable improvements, has an insurable interest in the premises, although the fee of the land was in another. M'Givney v. The Phoenix

Ins. Co. 1 Wend. 85. The property in common parlance is called his; and he may insure it as owner, 12 Wend. 507; 16 ib. 385. S. C.

Although the assured represent the property as his property, when in truth he had no property in the subject of insurance, except in right of his wife, and in common with her sister; yet, it being true in substance, it was held not to vitiate the policy. By Wilde, J. 10 Pick. 535.

There is a manifest difference between a mortgage of real and personal property; the former is merely a security for the debt; the mortgagee has only a chattel interest, and the freehold remains in the mortgagor; it cannot be sold by the mortgagee on default of payment without a bill of foreclosure and a decree of sale. Whereas the mortgagee of personal property has an absolute interest in the thing mortgaged after the condition is forfeited, so that the mortgagor cannot, by tendering the debt, entitle himself to an action of trover against the mortgagee, 8 J. R. 96; 7 Cowen, 290; 2 Ves. Jr. 378; See also 9 Wend. 80 and 11 ib. 106. Therefore where policies were effected on a steamboat on account of whomsoever it might concern at the time of loss; the loss, if any, payable to S. & W., first deducting the premium note if unpaid. The company paid the loss to S. & W. though notified of an assignment of their interest. The Chancellor in delivering his opinion makes the following observations." In this case the underwriters contemplated that a change of ownership of the boat might take place during the continuance of the risk, and intended to insure whoever might be the owners from time to time, so that those who should be interested as such owners at the time when any loss should occur, should have the benefit of the policies." "But as the policy in terms insured whoever should be the owner of the boat at the time of loss and Stow was then the owner of one quarter by virtue of the assignment from D., all pretence of a lien upon that portion of the insurance money for any general balance, which might be due from D. and Co. entirely fails." 6 Paige's Ch. R. 583. In such case, no assignment of the policy is necessary, and the printed clause requiring notice to the insurers in case of an assignment of the policy is inoperative.

(b.) The interest of Consignees, Factors and Commission Merchants.-Not only in the case of a purchase, but also in the case of a consignment by a debtor to his creditor, or in any case, where the consignee has a lien upon or a special interest in the goods, he may protect the same by an insurance. Hughes on Ins. 37. Even a naked consignee may insure for the benefit of his consignor. But to constitute an insurable interest, the assured must have some charge, claim, or lien on the ship or goods upon the safety of which the policy is made to depend. ib. p. 39.

It is laid down by Mr. Phillips in his Treatise on Insurance (p. 44.) that the insurable interest of a consignee or factor, is limited to the extent of his lien. But the case of De Forest v. The Fulton Fire Ins, Co. 1 Hall. 84, decides that a factor or commission merchant may insure the goods of his principal in his own name to the full value of the goods consigned for sale without regard to the lien. The policy was effected upon goods "as well the property of the

assured, as held by them in trust or on commission." The court decided that the commission merchant might sue upon the policy by setting forth the facts according to the truth of the case-averring the interest to be in himself, and concluding also to his own damage: and in such case he was entitled to recover for the amount of the entire loss sustained on the goods he held on consignment for sale. Mr. Justice Oakley in delivering his opinion, alludes to the observations of Mr. Phillips just referred to; and remarks that he "gives no authority for his position; and he lays it down without any dis crimination between Marine and Fire Insurance. It might be well contended, (if it were necessary,) that a more liberal rule ought to be adopted, as to the extent of the insurable interest of a factor, in the case of insurance against fire, than in the case of marine insurance. The convenience of trade would seem to point out and sanction a difference, in the application of the rule to the two kinds of insurance." The observations of Chief Justice Jones, in the same case, are to the same effect. "I observe that there is a wide difference between the insurance of goods against maratime risks on the voyage of exportation, and the protection of them by insurance while in store, against fire. In the first place, the consignee has not the full possession of them, and is not invested with all his powers over them, until the arrival and delivery of them to him. But without laying stress upon that circumstance, I observe, in the next place, that the great reason why the consignee for sale does not insure, and is not expected to insure against maritime risks on the voyage of importation without an order for the purpose, is, that the consignor, in such cases effects the insurance himself, and he does so, for the most cogent reasons. He is on the spot, capable of determining for himself whether he will insure or not; and if he prefers insuring, can select his own underwriter, and be sure of having the property satisfactorily covered. If he trusts to his foreign correspondent he may be disappointed; his orders may miscarry, or not arrive in season, or his consignee may fail, and besides, in case of loss, the insurance if made by him at home will be the more readily and more easily realized, and with greater advantage to himself, than if to be collected by agents abroad, and remitted by them to him. He therefore will seldom trust a concern so interesting in its consequences to his factor abroad, when he can attend to it himself at home. And hence it is, that orders to insure are not usually given to consignees, unless they are required to make advances on the goods in anticipation, and the insurance is to be for their own protection and security. The consignee, therefore, would not, ordinarily, insure against the maritime risk of the voyage, without the orders of the consignor, or some reason to induce the act. But if he should, upon the receipt of the bills of lading, effect insurance bona fide, and for just cause, upon the goods consigned to him, for the voyage of importation, I am not prepared to say, that the contract would be void, or that the charge of the premium could be rejected by the consignor. But the objection to a maritime insurance, on the goods, on the voyage, does not apply to the insurance against fire, during their continuance in the warehouse of the factor, waiting for buyers. That insruance devolves immediately, and almost of necessity, upon the factor. He

has the exclusive possession and charge of the goods. He is interested in the safety and profitable sale of them; has the means of reimbursing himself the premium, and possesses all the knowledge of the place of deposit, which is required to effect a valid insurance upon them. But the consignor, from his distance, and his want of local knowledge, will be unable to judge of the necessity of insurance, or the nature of the risk, or to describe the building, in which the goods may be stored, with sufficient certainty for a binding contract.

"These considerations satisfy me, that in principle the consignee, who has the actual possession of the property, with plenary powers of sale, must be clothed with a special property in the goods, so as to enable him to effect a valid insurance upon them in his own name, and to entitle him to recover for the loss of them, upon an averment of interest in himself. I have found no adjudged case necessarily impugning that conclusion; and the current of judicial opinion is in favor of the principle. But again; if it should be conceded that the consignee has not the right to insure the goods of his principal under other circumstances, or against other risks, he must, I think, from necessity, be vested with the power to insure against loss or damage by fire, in his warehouse, for the safety of the goods while they remain in his hands for want of buyers. And if his special property does not (though I think it does) give him the right to insure, as upon an insurable interest in himself, beyond his own beneficial interest, or subsisting liens, he must still have the special power at his discretion, and without any specific instructions to effect insurance on the surplus interest for the benefit of his consignor. And in this point of view, the usage found by the jury might have an important bearing upon the rights of the parties. For, if such insurances are sanctioned by usage, those who send their goods to a market where the custom prevails, must be presumed to know its custom, and to act upon the knowledge of it, in regulating their consignments. And these defendants, who knew the plaintiffs as commission merchants, and were apprised by the declaration of the policy, that the insurance was to be upon goods held on commission, must be taken to have entered into their contract with reference to the usage, and must abide by its influence on their liability. The general prevalence of such a custom might account for the absence of orders to insure: the consignees choosing to trust to the judgment and discretion of the factors residing on the spot, and possessing a full view of the whole ground, as to the expediency of insurance against fire, rather than to bind them down by express orders to the duty of insuring at all events. It would be difficult to account for the indifference and inattention of the consignor's interests, which the neglect to give the orders would otherwise manifest, upon any other supposition than that of a settled conviction on their part, resulting, from past experience, or the advice of counsel, of the right of the consignee to insure, and a confidence in the judicious exercise by them of the power, or that of a reliance upon the conformity of the consignee to an established usage for the factor to keep the goods sent to him for sale, under insurance, until sold.

"But it is contended, that such an insurance would be for the indemnity

of the owner of the goods; and to be sustainable as an insurance for his benefit, and on an implied authority from him; the policy must be in his own name, or the terms of it must be sufficiently comprehensive to embrace him, and cover his interest; and that the loss, moreover, which may happen, must be recovered on an averment of interest in him. These may be requisite of an insurance effected by an agent, insuring by the order, and on the account of his principal solely, or by a naked consignee, who has the possession merely without the power to dispose of the subject he insures; and they are rules which apply also to policies expressly declared to be for the benefit of the principal, and not professing to be upon any interest of the agent or factor, who effects them. But can they be applicable to this contract? It surely could not be necessary to the validity of this insurance, that these factors should insert the names of their principals in the policy. Such a requisition could subserve no valuable purpose, and would be embarrassing in the extreme, and often times impracticable. An insurance, like the present is for the protection and indemnity of the commission merchant, against loss or damage to any goods or merchandise, that may then belong to him, or be held by him for sale on commission, as the factor of others. And it cannot be foreknown whose goods will be there at that time. The insurers, therefore, admitting them to be entitled to notice of the names of individuals intended to be benefited by the policy in ordinary cases, have dispensed with it in this case, by becoming parties to a contract which necessarily precludes the disclosure. But there was no difficulty in stating the insurance to be for the benefit of whomsoever it might concern. If the contract could be viewed simply in the light of an insurance for the use of the plaintiffs and others, for whom they acted as agents, some general expression might be requisite to extend its protection to the assured, who were not specifically named in the policy. But this is an insurance by factors, upon goods held by them on consignment for sale; and even if the law did require, as a general rule, that such insurances should be for the account of the principals, and that to render the contract available to them, the factor must adapt his policy to the form prescribed for other agents, this contract appears to me to dispense with that condition; or, rather, to require a substitute for it, which probably was supposed to be of greater value to the insurer. By the third article of the conditions subjoined to the policy, and made part of it, goods held in trust, or on commission, are to be declared and insured as such, otherwise the policy will not cover such property. Can the sense of this provision he misunderstood. Does it not import, that if the condition be complied with, by the disclosure to the insurers, that goods held on commission are to be the subject of the insurance applied for, the property shall be covered by the policy? And if such be the true construction of the clause, it amounts to an agreement, that all the goods in which the assured should be found to have either an absolute interest as owners, or a qualified property as factors, should be covered by the policy, and the satisfaction, in case of loss, be made to the assured, as representing the entire intererest in them.

"I am unable to perceive any ground, (adds Mr. Justice Oakley) in princi