ple or good sense, why this contract (contract of insurance) ought not to be viewed in the same light with the contract of sale: and why the factor may not in the one case, as much as in the other, be considered as the owner of the property, for the purpose of entering into the contract, or of recovering damages for the breach of it. The effect of a sale of goods, by a general factor, although he acts against his secret instructions is founded on the custom of merchants, and in the safety and convenience of commerce. It is equally important that such a contract of insurance, as the present, should be supported on the same grounds."

The interests of consignees or factors, in effecting marine insurance, have been alluded to by the judges in several English cases. Thus in Lucena v. Crawford, 3 B. & P. 95, it is said "it is not necessary, that the assured should have a beneficial interest in the property insured. It is sufficient if he be clothed with the character of trustee, an agent, or consignee." And Lord Eldon remarks, that "a trustee has a legal interest in the thing and may therefore insure. So, a consignee has the power of selling." 5 B. &. P. 289, S. C. House of Lords. The observations also of Lord Kenyon and Mr. J. Grose, in Crawford v. Hunter, 8 T. R. 13, are to the point that trustees or consignees may insure.

The practice of insurance against fire, on the property of the foreign merchant, in the hands of his consignee, greatly tends to promote the interests of trade, and it ought to be upheld by any means not inconsistent with established rules of law. By Oakley, J. in 1 Hall, 130, 1. As it relates to his principal, the factor has no right to deal with the property consigned to him, otherwise than according to his instructions. The interest of the latter as between him and his principal may justly be said to extend no farther than his lien. But as between the factor and third persons, his powers and rights are of a very different character. And it may be affirmed, that in all questions relating to the property in his hands, arising between the factor and third persons, the former, (the factor) is, without the positive interference of his principal, considered by the law, as the owner. As respects the public, he is treated as such for if a felony be committed of the goods, the indictment may aver the property to be in him. So in case of trover or trespass, the factor may sue as owner of the goods. The damage is laid in the declaration as his. So he may sue for and recover the price of the goods sold in his own name. See Observations of Oakley, J. in ib. p. 132, 3 J. Ch. R. 573; 5 ib. 429; Hulse v. Young, 16 J. R. 2. The possession of the property is coupled with an interest, and for all purposes connected with the custody and disposition of the property, the law considers the factors as owner; and as such they may enter into any contract with third persons in relation to the goods in their hands, which becomes necessary or expedient in the execution of their general powers. The contract of insurance, by a factor, against fire, falls clearly within the general principle. It is a contract for the preservation and safe keeping of the property, until it can be sold. The conclusion, therefore, to which we arrive both from principle and authority is, that a general factor, having possession of the goods, is to be considered in law, as having an insurable

interest, in the whole amount, without reference to his lien. He may insure them in his own name, and recover the amount payable for the loss, on an averment of interest in himself. The test of liability of the underwriter is the insurable interest of the assured. And the factor or commission merchant is not required to sever his insurance upon the property, or to open distinct policies upon the goods of each consignor, or to specify therein, several consignments; for the risk on each is the same, and the whole is under the direction of the same agency. The whole therefore, may be covered with one insurance, in the name of the consignee who has the possession and charge of the whole.

Supercargo. The supercargo, as such, has no possession of the goods, or power over them during the voyage. His trust is, to sell in the foreign market, and his duty commences on the arrival of the ship. The right, or power to insure against maratime risks, is not within the scope of his authority, and does not result from any necessity. If indeed he be vested with special powers, he would in such case acquire the corresponding right. And where the goods are landed, and his instructions require, or authorise him in given events, or at his discretion, to wait for a market; and in the exercise of these powers, it becomes necessary to warehouse the goods; in such case the right to insure the goods against fire, if deemed advisable, results, by necessary implication, from the power to retain the goods in store, and the consequent hazard to which they are exposed. See Observations of Jones, C. J. 1 Hall. 114, 115.

The principle is well established, that a supercargo or consignee, who holds the bill of lading and invoices of the goods, in his own name, has an insurable interest in them. And yet he has no higher title to the goods than other consignees; for his powers are revocable, and his interest defeasible, by the principal, at pleasure; and other consignees have a title equally secure, and an interest equally absolute, as against all the world, except the consignor; and their special property can be divested by no other person. The sole difference is, that the one is in possession of written evidence of his title; the other may hold under a verbal transfer. In the case of Buck and Hedrick v. The Chesapeake Ins. Co. 1 Pet. R. 151, the Master to whom the goods were consigned, was held to have an insurable interest in them. Still he has no beneficial interest in the cargo, but is a mere supercargo or consignee clothed by the consignment, with the power to sell the goods, for the account and risk of the consignor. And if the fact of consignment confers the right, may not every consignee of goods, for sale, claim the same title, by virtue of his consignment? The consignment is, most generally, accompanied by the delivery of the bills of lading to the consignee; and where no bill of lading accompanies the goods, the delivery of them, with written or verbal authority to sell, must be tantamount. In each case, the consignee is virtually a trustee for the sale of the goods, and has, to all substantial purposes, the same special property in them, that vested in the master, by the consignment, in the case of Buck v. The Chesapeake Ins. Company.

Goods held in trust or on commission will not be covered by the policy,

unless insured as such, although the party may have a lien for advances. Bricta v. N. Y. Lafayette Ins. Co. 2 Hall, 372. But the words "goods held on commission in fire policies, are equivalent to the clause "for whom it may concern," usually inserted in marine policies. They contain a distinct declaration to the insurers, that the assured is acting for the benefit of his consignors and that other interests, than his own, is to be protected by the policy. It surely is not necessary to the validity of such an insurance, for the factor to insert the names of his principals in the policy. Such a requisition would be embarrassing in the extreme, and often impracticable. It cannot be foreknown whose goods will be there. See observations of Ch. J. Jones and Mr. Justice Oakley, in De Forest v. The Fulton F. Ins. Co. supra.

(c) The interest of carriers.—A carrier may insure the goods he contracts to convey; yet he has neither the legal title, nor the beneficial interest in them, but he is responsible for their loss. His insurance is upon the goods; yet his indemnity is against the consequences of his implied guaranty for their safe carriage, and not against the loss or deterioration of the property by the perils insured against. By Jones, C. J. in 1 Hall, 110. So in Oliver v. Green, 3 Mass. 133, a part owner of a ship chartered the residue of her, with an agreement to pay a specific sum if she should be lost, and insured the whole ship as his own property, without stating the nature of his interest; and he recovered for the whole value of her, notwithstanding the objection of short interest was taken. So in Bartlett v. Goodwin, 13 Mass. 267, the charterer of a vessel who agreed to insure her, was held to have an insurable interest; and he recovered the actual value averring an interest in himself.

These may be said not to be apposite examples, as the charterer is deemed the owner of the ship for the voyage, But his title, at best, is but temporary, and terminates with the voyage. He has the use of the ship for the time the charter-party has to run; but he has not the right of property. The legal ownership continues in him who lets her to hire, and the insurable interest of the charterer, in the cases cited, consisted in his exposure to damage from his engagement to protect the owner from loss, against the consequences of which engagement, he insures for his indemnity. So, again, a creditor may insure the life of his debtor, because his debt would be put in greater jeopardy by the death of the debtor. And it has been held, that a creditor may insure the goods of his debtor, destined for the payment of his debt, though consigned to another person. Yet these insurances are, in effect, for the use of the debtor and enure to his benefit. And that objection was urged against the insurance effected by a creditor, to whom the bill of lading had been assigned; but it was held to be untenable. By Oakley, J. 1 Hall, 111.

A pawnee, depository or common carrier, may legally insure their respective interests, subject to the rules of the different offices by most of which the nature of the property insured is to be specified; "and it may be observed in general (adds Mr. Ellis, p. 22), that although the st. 14 Geo. 3. c. 48, has a tendency to throw considerable difficulties in the way of recovering upon a loss both on fire and life policies, by putting the claimant to the proof of his inter

est, in order to entitle him to recover, the offices in general from a sense of liberality and the good faith due to the public, seldom avail themselves of this objection when the claim is even tolerably fair and honest. In fact, such would be the difficulty of ascertaining the precise quantum of interest in many cases, in order to comply with the third section of the act, that this clause would, if insisted on, materially affect the whole system of fire and life insurance, by making the sum to be paid upon the event happening, a constant subject of doubt and litigation." The words of the S. 3, are "And in all cases, where the insured hath interest in such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured on such life or lives, or other event or events."

(d) Indorser of bill of lading.-The consignor of goods for sale usually effects the insurance for himself on maritime risks, the consignee is not expected to insure the goods against maritime risks on the voyage of importation. By Jones, C. J. in 1 Hall, 120. The reason why the consignee does not insure in such cases, without an order from the consignor, is because the consignor being on the spot, is better capable of determining whether he will insure or not. And where the consignees make advances they insure for their own protection.

A bill of lading is transferable by the indorsement of the shipper or consignor. But if the shipper be the owner, and the ship be on his own account and risk, although he may not pass the title by a mere indorsement of the bill of lading, unless he be the consignee, or what is the same thing, it be deliverable to his order; yet by an assignment, either on the bill of lading, or any separate instrument, he can pass the legal title to the same, and it will be good against all persons, except a purchaser for valuable consideration by the indorsement of the bill of lading itself. Such an assignment not only passes the legal title, as against his agents and factors, but also against his creditors, in favor of the assignee. The result of the principle is, that bills of lading are transferable by indorsement, and this may pass the property. By Story, J. in 4 Mason, 515. See also 18 J. R. 157.

Though the second vendee of a chattel cannot, generally speaking, stand in a better situation than his immediate vendor, Small v. Moate, 9 Bing, 574; Dixon v. Yeates, 5 B. & Ad. 313; but on this rule there is an exception engrafted, for the vendee may, by negotiating the bill of lading to a bona fide transferree, defeat the vendor's right to stop in transitu. It is now the admitted doctrine in our courts that the consignee, under the circumstances above stated, may confer an absolute right and property, upon a third person, indefeasible by any claim on the part of the consignor.

Fraud on the part of the assignee; for instance, if he know that the consignee is insolvent and take the assignment of the bill of lading for the purpose of defeating the right to stop in transitu, and so defrauding the consignor out of the price, he will be held to stand in the same situation as the consignee; and the consignor will preserve his right of stoppage. By Ld. El

lenborough in 9 East, 514, and see Jordan v. James, 5 Ohio, 98. And if the bill of lading contain a condition, the endorsee takes it subject to that condition. 3 Camp. 92.

A factor stands in a different situation from a vendee with respect to his power to pass the property therein by an indorsement of the bill of lading. He might bind his principal by a sale of the property, but not by a pledge. By st. 4 G. 4. c. 83, amended by 6 G. 4. c. 94, usually called the Factor's Act, the law was altered. But a fraudulent sale cannot be upheld under this act. 1 M. & M. 48.

The goods are in transitu so long as they remain in any place of deposit connected with their transmission. 8 Pick. 198. If after their arrival, however, at their place of destination, they be warehoused with the carrier, whose store the vendee uses as his own, or even if they be warehoused with the vendor himself, and rent be paid to him for them, that puts an end to the right to stop in transitu. See 2 Bing. N. C. 83 ; 1 M. & Wels. 20; 6 B. & C. 422; ib. 109; 2 Tyrwh, 217. The true distinction is, whether any actual possession by the consignee or his assigns, after the termination of the voyage be, or be not provided for in the bills of lading. When such actual possession, after the termination of the voyage, is so provided for, then the right of stopping in transitu remains after the shipment. Thus if goods are consigned on credit, and delivered on board a ship chartered by the consignee to be imported by him, the right of stopping in transitu continues after the shipment, (3 East, 381;) but if the goods are not to be imported by the consignee, but to be transported to the place of shipment, to a foreign market, the right of stopping in transitu ceases on the shipment, the transit being then completed; because no other actual possession of the goods by the consignee is provided in the bills of lading, which express the terms of the shipment (7 T. R. 442.) By Parsons, C. J. in Stubb v. Lund, 7 Mass. 453.

The same rule must govern, if the consignee be the ship-owner. If the goods be delivered on board of his ship, to be carried to him, an actual possession by him after delivery is provided for by the terms of the shipment; but if the goods are put on board his ship to be transported to a foreign market, he has on the shipment all the possession contemplated in the bills of lading. In the former case the transit continues until the termination of the voyage; but in the latter case the transit ends on the shipment. Ib.

"The same distinction must exist in the case of a general ship.-If a ship sail from this country to Great Britain, with the intention of taking on board goods of divers persons on freight, to be transported to a foreign market, as the mercantile adventures of different shippers.-If goods are so shipped by the several consignors there is no transit to the consignees after shipment; and no right of stopping remains with the consignors. But it is otherwise when several persons import goods in a general ship on their own credit and risk, for a future actual possession by them is provided for in the bills of lading." Ib.

"An insolvent consignee may, before he receive the goods, disagree to the consignment, and the assent of the consignor shall be presumed unless he, in