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.

1. Assignment in general.-Upon reasonable principles, offices should have` the 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.

We may here observe, that as policies against fire cannot be assigned so as to entitle the assignee to demand the sum insured without notice to the office, (1 T. R. 22 and 745); in this respect they appear to differ from marine policies, in which the contract of insurance is more specially applicable to the property insured rather than to the owner of it. Before the st. 25 Geo. 3 C. 44, marine policies were commonly in blank as to the insured; and the subsequent st. 28 Geo. 3 C. 26, though it restrains the making of policies in blank as a general rule, renders it necessary only to insert the name of one or more of the persons interested in the property insured, or of the consignee or consignees, or of the person resident in Great Britain who shall receive the order for or effect such policy, or of the person who shall give the order to the agent immediately employed to negotiate or effect such policy.

The right to assign or give the benefit of a marine policy, when the property has been transferred also, does not appear to have ever been disputed. (1 T. R. 22, 745.)

Another distinction may also be observed between marine policies and those against fire. It is sufficient if a marine policy be effected after the interest in the property commences, if it be made in time to meet the risk insured against; (Rhind v. Wilkinson, 2 Taunt, 237;) for the st. 14 Geo. 3 C. 48, s. 1, does not extend to marine policies, and such a restraint would be highly prejudicial to commerce; but, it appears both by the decisions anterior to the statute, as well as by the statute, that the insured must have an interest in the property at the time of effecting the insurance against fire, as well as when the loss happens.

If the insured parts with his interest before the loss happens, so that he has no legal or equitable interest left, he cannot recover. 2. Pick. 249. So after stoppage of goods in transitu, the vendee ceases to have an insurable interest in the goods. Clay v. Harrison, 5 M. & R. 17; 10 B. & C. 99. And a policy effected before becomes thereby void. ib.; and see No. 1463 Greenl. Cas. overruled.

2. Assignment of Policy after the fire happens, with possession of the property insured before the Fire. The restriction in the policy, against an assignment of the interest of the assured in it, without the consent of the company, evidently applies to transfers made before the loss happens. Therefore, where the insured after the loss made an assignment of his property, for the benefit of certain creditors; and assigned, among other things, his claim on the defendants : Held, that the transfer did not make the policy void. Brichta v. The N. Y. Laf. Ins. Co., 2 Hall 372.

3. Suit by Assignee. If the act of incorporation provides that the assignee of the insured may sue in his own name, such assignee must aver that he has become the purchaser or assignee of the subject insured; a general averment of the plaintiff's interest is insufficient. 5 Wend. 200.

CHAPTER XI.

OF PROCEEDINGS IN EQUITY.

1. Equity Jurisdiction.-Courts of equity, sometimes in cases of insurance, as in all others, interpose their authority for the purpose of advancing justice; thus they will compel a trustee to permit his name to be used by the cestui que trust in an action on a policy of insurance, Per Ld. Hardwicke, 1 Atk. 547 ; or they will issue commissions for the examination of witnesses residing abroad, or out of the jurisdiction of the court, and grant injunctions to stay the proceedings at law until the return of such commissions; (Chitty v. Selwin, 2 Atk. 359,) or they will compel a plaintiff at law to make a full discovery by his answer upon oath of all the circumstances within his knowledge touching the matters in question, and the answer may be given in evidence at the trial of the action; or they will compel a plaintiff at law to deliver up or permit an inspection of all papers and documents which are material to the matter in dispute; (3 Bro. P. C. 525; 2 Marsh. 685) except, however, in such cases, and those in which policies or the proceeds may be affected by a trust, Courts of Equity have no jurisdiction.

Mistake in Policy.—If the policy is not filled up according to the intention of the parties, through inadvertence or mistake, a court of equity may, upon clear and positive evidence of such inadvertence or mistake, correct the policy. Per chancellor in Dow v. Whetten 8 Wend. 160, 166. In such a case the application for insurance may be used in the court of equity, in connection with the evidence, for the purpose of showing the mistake and reforming the policy.

If the premium had been paid to the agent authorized to receive it, and the president, secretary, or agent, has signed a receipt therefor, the insurance is as binding as if a policy had been executed. In such case however, the assured instead of suing in a court of law, will be obliged to resort to a court of chancery, in case of a loss. Perkins v. Washington Ins. Co., 4 Cowen, 645. Thus, it appeared that the agent of the company was authorised to accept propositions for insurance, and also to receive premiums; and it further appeared that the company had given notice that when the premium was paid, the insurance was to be considered as binding: Held, that the contract was consummated, although the agent had delayed remitting the premium until after the loss. ib.