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 continuance 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,

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 Phonix

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

and

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, 9 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 intereșted 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