author: Jones, Chief Justice.

text:
    Lockwood De Forest & William H. De Forest, versus The Fulton Fire Insurance Company, in the City of New-York.
    August Term 1828.
    A commission merchant, having in his possession the goods of his principal or consignee, deposited with him for sale, has an interest in the property which entitles him to insure the same against fire, in Ms own name, to the full value of the goods.
    In declaring upon such a policy, the pleader may set forth the facts as to the ownership according to the truth of the caso, and conclude, “to the damage of the plaintiff,1”
    A commission merchant is, to all intents, the owner of the goods in his possession as to all the world, except his principal.
    An insurance effected by a commission merchant upon goods “ as well the property of the assured, as held by them in trust or on commission,” covers the whole value of the property, and not the mere interest of the party effecting the insurance.
    At the trial, the Judge permitted the plantiffs to prove, that it was the usage of commission merchants in the City of New-York, to effect insurance on goods consigned to them for sale, on commission, without express orders from their consignors. Held, that the proof of such usage was rightly admitted.
    This was an action of assumpsit, upon three several policies of insurance against fire, tried before Mr. Justice Hoffman, on the 10th day of July, 1828.
    The declaration contained a count upon each of the policies. The first was upon a policy for $10,000, against loss or damage by fire, made by the defendants, and dated the 30th of April, 1827, upon goods and merchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the four-story brick store and cellar, No. 82 South-street, in the City of New-York, for one year from the first day of May, 1827.
    The second count was upon another policy of the defendants for $5,000, against loss or damage by fire, dated the 5th day of February, 1828, upon goods and merchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the store, No. 82. South-street, for one year two rmnths and twenty six days, from the 5th day of February, 1828.

      The third count was upon another policy of the defendants, for $2,500, against loss or damage by fire, dated the 5th day of Feburary, 1828, upon merchandise, hazardous and not hazardous, the property of the assured, or held by them in trust or on commission, contained in the brick store, No. 81 South-street, in the City of New-York, for four months from the date of the policy.
    The averments, relative to the interest of the plantiffs in the property insured and the damage sustained by them, were as follows: “And the said plaintiffs aver, that from the time of the “ making of the policy of insurance aforesaid, and the promise and “ undertaking aforesaid until and at the time of the loss herein “ after mentioned, the said plantiffs were possesed of divers goods “ and merchandise, hazardous and not hazardous, as well the “property of the assured, as held by them in trust or on commission, “ which were contained in the store and cellar, in the said policy “ of insurance mentioned, to a large amount, to wit, to the a- “ mount of all the several sums in and by the said policy, and the “ several policies herein after mentioned, insured thereon, or so “ mentioned to be,” &c.
    “ And the said plaintiffs aver, that after the making of the said “policy of the defendants, and during the time therein insured,” &c., “ the said goods and merchandise, in the said policy of in- “ insurance of the defendants mentioned, were by misfortune, “ without fraud or evil practice on the part of the plantiffs, burnt, “ damaged, consumed and lost by fire,” &c. “ and that by such “ fire the plaintiffs sustained loss and damage,” &c. “ to the amount “ of all the sums insured on said goods and merchandise.
    The defendants pleaded the general issue.
    Upon the trial, several questions of law were raised by the counsel for the parties, which were reserved for the consideration of all the Judges upou a case to be made. Such facts, as are deemed material to a clear understanding of the points of law discussed, are extracted from the case, and make part of the history of the cause.
    The execution of the policies, set forth in the declaration, was admitted by the defendants, and they were read in evidence. The two policies on property in the store, No. 82 South-street, contained an acknowledgment of insurances, by the Howard Insurance Company, for $10,000, by a policy bearing date the 15th day of November, 1827; and for $5000, by a policy bearing date the 17th day of December of the same year. These last, also expressed, goods on storage and goods in the yard of the said store.
    To prove their loss, the plantiffs called Mr. James Gould as a witness, who testified that he was the book-keeper of the plan-tiffs and had been so, for the last ten years : that the plantiffs were commission merchants in the City of New-York, and were well known as such, to the defendants. That the property in the stores, Nos. 81 & 82 South-street, was burnt and damaged oy a fire Which took place on the 20th of February last: that at the time of the fire, there was a large amount of goods in the stores of various kinds, which belonged to the plantiffs, or were held by them for sale on commission. That of the goods for sale on commission, the plantiffs were in advance for the charges on some of them; on a part they had made advances, or had a lien for balances : on some of the goods, insurance against fire had been ordered by the principals of the plantiffsrt<or the consignors of the goods; and that on others,-no express orders for insurance had been given. The witness then enumerated and particularly described the goods, and also testified, that the property saved was sold a few days after the fire, with the consent of the defendants: the president and one of the director’s of the company being present at the sale, and giving directions relative thereto. An account of the loss was made out and handed to the defendants on the 27th of February, 1827 ; and on the 23d day of March following, another statement of the loss, accompanied by a notary’s certificate

       was also delivered to the defendants. The witness further testified, that the statement .above referred to, contained a true and accurate account of the loss sustained, and that the property was charged therein at the lowest market prices. He also made out three schedules of the property under the direction of the court and by consent of parties, in one of which the plaintiffs’ own property was discriminated : in another, all such goods as were insured by express orders of the owners : and the third contained an acount of goods held by the plaintiffs for sale upon commission ; for the insurance of which, they had received no express directions from their principals.
    The counsel for the defendant, in opening their defence, stated, that they were directed by their clients not to interpose any objections against a recovery by the plaintiffs for all the property which was their own; nor upon that held by them for sale upon commission, to the extent of their liens thereon; but beyond those limits, they insisted, that the plaintiffs were not entitled to seek a recovery.
    The questions growing out of this objection, were not decided at the trial, but were reserved for the consideration of the whole court.
    Several witnesses were then called, both by the plaintiffs and the defendants, to prove the value of the property and the extent of the loss; and such of them as were commission merchants, were asked by the counsel for the plaintiffs : “ What “was the usage of commission merchants in the city ofNew- “ York, as to effecting insurance on goods consigned to them “ for sale on commission, against loss and damage by fire, with- “ out express orders from the consignors of the goods, to effect “ such insurance ?” To this question the counsel for the defendants objected; but their objection was overruled, and the decision excepted to by the defendants.
    The Judge then, with the assent of both parties, directed the jury to return a verdict in favour of the plaintiffs for a sum sufficient to cover their whole claim. They were also directed to find specially as to the usage which the plaintiffs attempted to prove ; to find the value and amount of the articles lost or damaged, separately; and to reduce the prices of the goods, if they should find them credit prices, by a discount of interest, to a credit of 60 days from the time the proofs of loss were delivered.

    This verdict was to be subject to the opinion of the court on the questions reserved; and to be modified and adjusted under their direction, according as they should decide on the extent of the liability of the defendants.
    With these directions the jury returned a verdict in favour of the plaintiffs for $18,000, founded upon the principles laid down by the court. They also found, “ in favour of the custom of effecting “ insurance on goods consigned or held in trust, without the ne- “ cessity of special orders being given to that effect, to the com- “ mission merchant.” ^
    The cause was now argued by Mr. D. Lord and Mr. D. B. Ogden, for the plaintiffs, and by Mr. Staples and Mr. Griffin, for the defendants.
    The plaintiffs presented the following points :
    I. That the defendants were liable in this suit to pay to the plaintiffs, all such damage as happened by fire" to the property held in trust or on commission, specified in the policy, without regard -to the state of their advances, or claims against the persons for whose account it was held by them in trust or on commission.
    II. The evidence of the usage of trade, offered by the plaintiffs, was rightly admitted.

      Mr. Lord.

    .... I. The plaintiffs in this case are commission merchants, and as such were known to the defendants. The testimony produced at the trial clearly proves, that it is usual for commission merchants to insure the property placed under their charge against loss or damage by fire; and. the plaintiffs, as faithful agents, were bound to exercise the same discreet care, toward the property of their correspondents, which they bestowed upon their own.
    It is admitted by the counsel for the defendants, that the plaintiffs are protected by the policy to the extent of their advances; and also in those cases where they received orders from their principals to insure ; because, in such cases, they have an interest: being themselves liable to their consignors for the consequences of neglect.
    Where express orders to effect insurance have been received by a commission merchant, there can be no doubt of his right to effeet the insurance in his own name. If this be true in the case of express instructions, implied orders may be considered as tantamount to the same thing; for general usage is equivalent to a positive order. The plaintiffs were bound to do what is usually done by commission merchants; what prudent men do for the protection of their own property, and what they themselves did in this very case with their own goods.
    II. The defendants, at the trial, objected to the evidence offered by the plaintiff, to show the custom among commission merchants in New-York, to insure the goods of their principals ; and one of the first inquiries is, whether such evidence was admissible.
    It was offered by the plaintiffs as a mere fact to show the course of trade ; to show what is always done, and expected to be done, by commission merchants, and what was of course expected from the plaintiffs by their consignors. A usage to sell on credit is mere evidence of ari implied authority to give credit. So, ill this case, we offered proof of the custom, as evidence of an implied authority to insure, which may be considered as tantamount to a special order. This usage is also admissible to show a rule of diligence and of duty. It has been admitted in analogous cases, and -was properly admitted in this. [Palmer v. Blackburn, 1 Bing. 61. Robertson v. French, 4 East, 130. 135. Frith v. Barker, 2 John. R. 335. Coit v. Com. Ins. Co., 7 John. R. 385. Scott v. Bourdillion, 5 Bos. & Pul. 213. Park on Ins., 12. 116. (Murray v. Sherry,) Renna v. Bank of Columbia, 9 Wheat. 581. Astor v. Union Ins. Co., 7 Cowen, 202.)
    III. The interest of the plaintiffs in the goods under their charge was at least equal to that of a trustee ; and if a trustee could recover the whole value of the property insured in his own name, the plaintiffs can recover in the present instance.
    The policy itself is a contract of liberal indemnity, and is held out as ■ such to the world by the underwriters in their own proposals. The words used in the contract, being the words of the defendants, are to be construed most strongly against them; and. the construction to be given to these instruments is always liberal, in cases of indemnity, although strict in eases of fraud. Here the defendants have been paid for assuming a given risk: the contingency which the parties contemplated has happened ; the property was subjected to the expected peril, and none other, and the defendants are hound to make good the loss.
    The words “held intrust,”' and “ held on commission,” are to receive the same construction, because they are used in the same instrument, and in the same connexion. Suppose the whole property.had been held on trust, instead, of commission, would it not be covered to its full value 1 But has the trustee an equal interest with the commission merchant 1 The trustee is not the beneficial owner ; but is the owner for the purposes of legal protection merely, and is answerable over, for the faithful discharge of his trust.
    The commission merchant is also an owner for the purposes of legal protection, with a greater interest and a higher authority : for he has a right not only to hold, but to protect the property, and sell it. Both are bound to act in the manner usual among prudent men as to their own affairs, and to bestow the same care upon the property entrusted to their charge, as upon their own. If, therefore, the plaintiffs, as trustees merely, would be covered J)y the terms of the policy, they certainly ought to be protected, in the present case, by the additional words, and the analogous nature of-the two cases. ,
    IV. A commission merchant in possession of property, with authority to sell, is the owner as to all the world, except his consignor : the insurance, therefore, covers the whole property, and, in pleading, the loss maybe laid as accruing to the plaintiffs.
    1. In cases of sale, the commission merchant sues in his own name, describes the" goods as his own, and recovers the full value in damages.

      2. If the goods are taken from him, trespass de bonis asparlaUs, or trover lies, and the property may be averred to be in the commission merchant, who recovers its full value ; being subject to account with his principal. This principle is well established, [Lyle v. Baker, 5 Binn. 457. Action against a Sheriff for attaching goods on which the plaintiff had made advances, 1 B. & A. 59.]
    3. If the property be stolen: in an indictment for theft, the goods may be laid as the goods of the plaintiff [2 Chit. Crim. Law, (Amer. ed.) 947, 8. and the cases cited there.]
    4. A common carrier is an insurer against fire. Suppose the plaintiffs had delivered the goods to a common carrier, and they had been destroyed by fire : could they not recover the whole value of the property of the carrier 1

      5. At common law, an action on the case for negligently keeping fire by which one’s house is burnt, will lie against his neighbour. Suppose such an action brought by the plaintiffs, could they not recover the full value of the property in damages ?• [Com. Dig. Action on the case for negligence, A. 6.]
    6. In an action against the Hundred for robbery on the statute of Winchester, a, servant robbed of his master’s goods, in the absence of themaster,may recover the whole value, layingthe property inhimself. [2 Saund. R. pt. 2.380. (n. 15.) Combes v. Bradbury, 12 Mod. 54. Same case, 4 Mod. 303. Peake’s Ev. 278, &c.]
    The common law, therefore, clearly treats the person having a special ownership of property as possessed of an interest which entitles him, on every occasion, to recoverits full value, (subject to account for the same to his principal,) because being present, he is bound diligently to protect and take care of the property,

      V. Such, being the legal relation of the plaintiffs to the property held by them on commission, and such being the usage, what are defendants to be understood as insuring—the full va ^he property, or the plaintiffs’ interest therein merely 1 The . plaintiff, in all other cases, is entitled to recover the whole amount .; and why .are not the defendants placed in the condition of every other party who is liable to the plaintiffs for fire or accident 1 Is any thing more required to create an insurable interest than a special property in the goods insured 1 An insurable interest is even less than a special property. [Buck & Hedrick v Chesapeake Ins. Co., 1 Peters’ Rep. 162.]

      VI. The words of the policy, “ their own property, or held by them on trust or on commission,” were evidently intended by them to cover property in some sense not their own absolutely. The insurers undertake to make good to the assured, all such loss, as should happen to the property above specified. The very words import an obligation to replace the goods, and nothing can be inferred from them indicative of the plaintiffs’ particular interest in the property insured.
    The loss, by the terms of the policy, is to be estimated according to the true and actual value of the property insured. This cannot be confined to the mere duties, charges and advances made by the plaintiffs, but must refer to the fair market price of the goods.
    By the third condition of insurance attached to the policy, “ goods held intrust or oncommissionaretobe declared as such, otherwise the policy will not cover such property.” What property4s "protected when the policy covers goods on trust ? The interest of the trustee only, or the whole value of the property 1 And why does not the same rule apply to goods held upon commission, when such property is expressly described and covered by the words of the policy 1

    There is no policy of law opposed to a recovery by the plaintiffs, and there is no possibility of fraud. The person holding the property is known, and no voluntary or fraudulent burning is to be expected; besides, there can be no recovery without proof of loss to the amount claimed.

      As to double insurances, they are not to be anticipated, for it is the usage of commission merchants to insure ; and there can no more danger in this respect from property held upon commission, than that held upon trust. The plaintiffs are accountable over to their principals, as every bailee with a special property is accountable, and there is no reason why they should not recover in the present action.

      Mr. Staples, contra, for the defendants.
    The decision of this case depends upon the true construction of that clause of the policy in which the interest of the assured is described.
    On the part of the plantiffs it is insisted, that all the property»! the store destroyed to the amount of the sum insured, is covered by the policy, whether the plantiffs had any interest in it or not; or whether ordered to insure it or not. On the part of the defendants it is admitted, that the plaintiffs have a right to recover for the value of their own property destroyed, and to the amount of what they may have advanced on the property of others, in store, and for such as they were requested to insure and have insured accordingly: but for property in which the plantiffs had no interest, and which they did not own, and were not requested to insure, the defendants insist the plantiffs have no right to recover.
    Before we examine the clause of the policy in , question, we remark, first, that it has been insisisted, that every commission merchant is bound, without any particular orders,, to get the property of his correspondents in his possession insured. This is incorrect ; it is neither the law nor the practice; if it was the law/it would make every commission merchant the irisurer-of all the property consigned to him while in store; and all the property thus situated, which has been destroyed in this city by fire, within the last six years, the commission merchants to whom it has been consigned must pay for. It is no part of the duty of a commission merchant to get the property consigned to him insured, unless requested so to do. [3 Chit. Com. L. 357. 363. Phil. on Ins. 44. Paley on Ag. 18. Smith v. Lascelles, 2 Term, R. 187.]

      2. There is no custom proved or found in this case which can materially affect the decision of the main question. Commission merchants, we admit, have been in the habit of insuring their customer’s goods which they hold as security for advancements to protect themselves in case of loss or failure.
    But no instance has been proved, nor have the jury found, that where the commission merchant had no interest in the goods, and was not requested to procure insurance, that he has procured insurance, and in case of loss collected it and paid it oyer. The insurances which have been made, have been merely for the commission merchants’ own security.
    Such a custom would be an anomaly in the commercial world. It is not to be supposed that the merchants of this city, contrary to law, and contrary to the practice of the commercial world, would adopt such a custom; and the finding of the jury as well as the evidence, are satisfied by the well-known fact that many commission, merchants for their oavh security, are in the habit of insuring an amount, which will cover all their advancements upon their correspondents’ goods.
    With these remarks we dispose of all that part of the argument which, in our judgment, is not immediately connected with the merits of the controversy.
    I. On the part of the defendants we insist, that the plaintiffs cannot recover beyond their interest in the goods created by ownership, by advancement, or by an order to insure; the disobedience of which, would have subjected them to pay for the goods.
    II. In every policy against fire there is a personal trust reposed in the insured. This trust is of a veiy confidential, as well as delicate nature. It never is, and.never can be, reppsed in a person riot named in the policy; much less in a person unknown. The very nature of the subject, as well as the terms of the contract and the policy of the law, prove the existence, and show the character of this trust; In case of personal property insured, the insurance attaches to no particular invoice of goods, but upon any goods the property of the insured, which happen to be in store at the time of the fire. [Park on Ins. 452.] Between the date of the insurance and the fire, the goods may have been destroyed many times. This shows the nature, as well as the extent of the confidence reposed in the insured.
    III. In all insurances against fire gaming policies áre considered as against sound policy. [4 Mass. R. 336. 2 Marsh. Ins. 787. 2 Atk. 557. Phil. on Ins. 27. 2 Mason, 369.] No man can insure beyond his interest. This is a cardinal principle. If the insured insures another person’s property, he is bound to name that person to the insurers, that they may know his character.
    IV. It is said that agents and factors may insure the property of their principals. This is true ; and all that right is completely satisfied by giving this policy the construction we give it. But no case or principle of law can be found, giving a right to the factor to insure the interest of his principal without orders, and where he has no interest. Such a practice would be mere gaming. [Phil. In. 43.]
    V. But it is urged that trustees may insure, and that they have an insurable interest. This is admitted; and to the extent of their interest they may cover, but not beyond, unless they state that interest, and the owner; that the insurer may know whose property he insures. [13 Mass. 267. 1 Peters, R. 161.] Where a person insures as trustee, and says no more, the words of the policy are fully satisfied by the paying the trustee, for his interest in the trust estate.
    A policy like the present is a mere personal trust, not an insurance of the thing. It is against any injury which may happen within a given time to the person or any of his property, or any interest he may have in any property, of this description. But the construction contended for, would open a wide door to fraud, and destroy all "confidence between the assurer and the insured. There may be double insurance; the owener may have disposed of his interest to a person whom the assurer would be unwilling td insure, and the loss when paid is liable to missapplication.
    Besides, the insurance would be constantly changing; to-day it would attach to the property; to-morrow there may be no property to be protected. The insurer is exposed to hazards not contemplated, and a contract is set up which he never sanctioned. This deference proves that the underwriters never deemed that plantiffs’ claims could extend to this extreme point, and they have COme here to state their own views of their own contract, S to hs terms and according to its spirit.
    The plaintiffs themselves have cautiously stated their own claims. The declaration sets forth the insurances as made, and according to the facts of the case, and then concludes “ to the damage of the plaintiffs.” Now, the declaration itself shows that the whole extent of the loss could not damage the plaintiffs, for their interest did not extend thus far. Their interest was bounded by their claims upon the property, and this amount the defendants have always been ready to pay. We insist that the plaintiffs cannot, under the pleadings, or under a fair construction of the policy recover any amount beyond their own loss, and must limited in their claims, to the extent of their own interest in the property.

      Mr. Griffin,
    on the same side.
    There are two questions in this ease, of importance to be examined. 1. Do the words of the policy and a fair construction of its terms, go beyond the interest of the plaintiffs 1 2. Can the plaintiffs upon these pleadings receiver beyond that amount 1

    The finding of the Jury in “ favor of the custom,” cannot assist the plaintiffs, because it does not show that it is usual for the commission merchant to insure beyond his own interest. At all events, it does not indicate, that it is usual to insure the interest of the principle in the name of the agent. Besides, there is no proof that the insurance was ever authorised by the principals. The defendants offer to pay according to the custom: that is, they offer to make good to the plaintiffs the loss sustained by them upon their own property, and tbe full amount of their interest in the goods “ held in trust and on commission.”
    I. The policy according to its true and fair construction, covers nothing beyond the interest of the plaintiffs. They only are insured. Where other interests are intended to be protected, appropriate words for that purpose are always introduced. [Phil. Ins. 57. 61.]

      In this case, the words descriptive of the property, are only intended to obviate the effect of the third condition of the policy. The agreement is, “ to make good to the assuredand the provisions against other insurances extend only to them. But the pHndpal may insure, [Locke v. North Amer. In. Com. 13 Mass. 61.] and thus the property may be doubly insured.
    The clause against assignments, shows that it is the interest of the assured, and not the property itself that is covered ; and the notarial certificates, required by the ninth condition, show, that the loss must have been sustained by the assured.

    III. The declaration does not authorise a recovery, for any interest, but that of the plaintiffs. A party who seeks to recover on a policy made by him, for the benefit of another, must aver in his declaration, the real party in interest. [Bell v. Ansley, 16 East, 141. 143. Cohen v. Hannam, 5 Taunt. 101. Wolff v. Horncastle, 4 Bos. & Pul. 316. Davis v. Boardman, 12 Mass. Rep. 80. 83.] Here, the averments of interest, the affidavits and notarial certificates are confined to the assured. The answer, and the only answer that can be attempted is, that the plaintiffs had the legal interest in the property insured. In the case cited from Peters’ Rep. [Buck v. Ches. In. Com., 1 Pet. 162.] the captain had the legal interest. So in the case of Bartlet v. Walter, [13 Mass. Rep. 267.] the hirer for the voyage had the legal interest pro hac vice. A commission merchant has not the legal interest in the whole property : he is a mere agent, and a breach of duty, in not insuring, does not create an insurable interest. His power maybe revoked at the pleasure of the principal, and goods under his charge may be sold by an execution, subject to the factor’s lien-This lien is not transferrable: it is a mere personal claim. [M'Combie v. Davies, 7 East, 5.]
    The counsel for the plaintiffs are driven to the bold position, that a mere bailee, may insure the property of his principal, in his own name—sue upon the pblicy, and aver interest in himself! This is the only position on which they can rest. But a bailee has the legal estate, only as against wrong doers. The special interest does not support the averment in the declaration; and under these pleadings the plaintiffs cannot recover. The captain or supercargo of a vessel may make advances, and have a lien upon the owner’s property : but will the counsel for the plaintiffs con-ten¿¡5 that the captain or supercargo, would have a right to insure the property of their principal in their own names, and in case of 1 v . loss, to recover upon a declaration which averred the interest to be in the agent 1
    The doctrine must be carried to this extent, to support the claims of the plaintiffs, in the form presented hy this declaration.

      Mr. Ogden, in reply.
    The principal subject of inquiry, in this case is, as to the true consti'uction to be put upon these policies of insurance ; for upon that construction must depend the decision of the court.
    The jury have found, that it is the usage of commission merchants, to effect insurance upon goods consigned to them for sale ; and of this usage the defendants were fully aware, at the time of executing the policies.
    By the terms of the contract, the assurers undertake “ to make good unto the assured” “ all such loss or damage” “ as should happen hy fire to the property” specified. The interest of the plaintiffs is never mentioned in the policy: while the property in the stores is constantly referred to.
    This contract is made in reference to the conditions of insurance attached to the policy. The third article stipulates that “ goods held in trust, or on commission, are to be declared and insured as such.” What is the meaning of these expressions 1 Has it not reference to the words used 1 and can they bear any other interpretation, than that, if the goods held in trust or on commission are “ declared such,” they are, of course, insured ?■ Property held by a merchant for sale is constantly changing. The insurance is not effected on any specific property, but on property generally. The amount of goods or merchandise, specified in the policy is insured ; and it is a matter of no importance as to whom the same may belong.
    One of the counsel for the defendants suggests, that an insurance against fire, may be considered, as “ in personamwhile a marine policy is a contract to rem. But this distinction is not, well founded. May not a boatman, or the owner of a vessel engaged in the regular business of transportation upon our rivers or canals, effect a policy upon time, which will be effectual to cover all property received on board of his vessel within the period specified, / ■ • „ . , „ , 5, and protect it against all risks for which he is liable to his bailor, or the person for whom he receives the property Í

    But we are asked, what disposition is to be made of the money when it shall be recovered % That is a question between the consignor and consignee solely, and the underwriters have nothing to do with it. The commission merchant must undoubtedly account for the money to his principal; but that question can, in no way, affect the contract between the parties now before the court.
    The policy under consideration has been likened to a wager policy, and even treated as such, by the counsel for the defendants ; and the risk of double insuarance has been urged as an argument against our recovery.
    A wager policy against fire is void, I admit: it ought not to be countenanced for a moment by the court; and if these contracts can be considered as wager policies, let them be abandoned. But there is no foundation for the suggestion; for the plaintiffs have, at all events, an interest to a certain extent, in the subject matter of the insurance.
    The danger to be apprehended from double insurances, has nothing to do with the interpretation and true construction of this contract. If the defendants have made an agreement which exposes them to such risk, it is their own fault, and this objection cannot be set up by them, to invalidate the contract. But the danger arising from this source is altogether imaginary ; for the defendants may come forward at the trial and show, that other insurances upon the same property have been effected, in the same manner as they may be proved in cases of marine insurance.
    But it is said, that we are not entitled to recover, because we cannot comply with therequisitions of the ninth “ condition ofinsurance” attached to the policy. This ninth article or condition is a part of the policy, I admit; but it is a printed part, and if there be any discrepancy between this and the written clause upon which "we rely, the former must give place to the latter. But why can we not comp]y with the requirements of this ninth condition ? The plaintiffs in their statement, give an account of the loss sustained; not of their own loss, I admit, but of the whole loss. This is a substantial compliance with the conditions of this article.
    But it is further objected, that if the plaintiffs are entitled to recover upon the abstract principle, still they cannot recover upon these pleadings as they now stand.
    This question brings us back to the consideration of the proper construction to be put upon this contract. Its true import is, that the defendants agree that the assured shall be considered as monees of the property to all intents and purposes. The question of ownership was by no means to arise ; and the plaintiffs were taken to be the owners, for all purposes as between the assurers and assured. We have made our averments, then, according to the facts and according to the words. In trover or trespass the declaration would conclude “ to the damage of the plaintiff,” although his interest in the property might be only that of trastee. But the true answer to the objection is, that the plaintiffs are the owners, as to all the world, except their principals or consignors.
    It might be urged, that the usage of the commission merchant to effect insurance, imposes an obligation upon him to protect the property committed to his charge ; and it may be a delicate subject of inquiry, whether he be not liable for all the consequences of a neglect to insure. If this be so—if the plaintiffs were bound to insure ; then, clearly, according to the case cited from the 13th of the Mass. Reports, they had an insurable interest.

       This was in compliance with the ninth condition of insurance attached to the “policy, which stipulated that “ all persons insured by this company, and sus- “ taining loss or damage by fire, are forthwith to give notice thereof to the com- “ pany;.and as soon after as possible to deliver in a particular account of such loss “ or damage, signed with their own hands, and vei-ified by their oath or affirmation, “ and also, if required, by their books of account and other proper vouchers : “ they shall also declare on oath whether any, and what other insurance, has “been made on the same property, and procure a certificate under the hand of a “ magistrate, notary public, or clergyman, (most contiguous to the place of the “ lire and not'eoucerned in the loss,) that they are acquainted with the character “ and circumstances of the person or persons insured ; and that having investiga- “ ted the circumstances in relation to such loss, do know, or verily believe, “ that he, she, or they, really and by misfortune, and without fraud or evil practice, “■ hath or have sustained by such fire, loss and damage to the amount therein mentim- “ ed: and until such proofs, declarations and certificates are produced, the loss shall “ not be payable : also if there appear any fraud, or false swearing, the claimant “ shall forfeit all claim by virtue of this policy.”

       This had reference to the tenth condition of insurance annexed to the policy, which stipulates that “ payment of losses shall be made in 60 days after the loss “ shall have been ascertained and satisfactorily proved, without any deduction “ whatever.”

   Jones, Chief Justice.

This is an action on a policy of insurance, to recover for loss and damage to goods by fire. By the terms of the contract, The Fulton Fire Insurance Company, the defendants, insured De Forest & Son, the plaintiffs, against loss or'damage by fire,- to the amount of $10,000 dollars, on goods and merchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the store No. 82 South-street,,, for the term of one year. And the insurers promise and agree to make good to the insured, all such loss or damage, as should happen by fire to the property ; such loss or damage to be estimated according to the true and actual value of the property at the time the loss should happen. A fire happened within the year, by which loss and damage was sustained on goods and merchandise, partly the property of the plaintiffs, and partly held by them on commission, then in the store described in the policy, to a large amount. The right of the assured to indemnity is admitted ; and the question is upon the extent of the liability of the insurers for the goods held on commission ; or, in other words, what the insurable interest of the plaintiffs was therein. The plaintiffs insist upon the right to recover the full amount of the loss and damages to those goods by the fire ; and the defendants contend, that they are bound to indemnify to the amount only, of loss, sustained by the plaintiffs in their own right thereby.

It is admitted that they had an interest in the goods they held on comission, and are entitled to recover to the amount of their advances thereon, with interest, and their mercantile commissions and charges as factors. But the insurers insist, that those were the only interests the plaintiffs had at risk at the time of the fire, and that all they can claim is an indemnity to themselves for their own loss.

The plaintiffs are insured on goods held by them on commission . they had no beneficial interest or right of property in those goods beyond the amount of their liens and just claims, for their commissions on the sale, and the reimbursement of their advances and charges on account of the principals, to whom the goods belonged. They were the consignees and factors of the general owners, with powers to sell; and in that character they had the right of possession, and the actual possession of the goods, and a special ownership against all the world, with the exception only of the principals, which entitle them to hold and dispose of the goods—to reclaim them if improperly usurped, and to maintain actions of trover for them as their own, if they chance to come into the possession of others, and are wrongfully detained. And whether that possession and special ownership gave them an insurable interest under this special contract or not, is the material question. There can be no doubt of the right of the factor to insure for his principal: and ad-§' su°h insurance to be made of his own accord, and without the orders, express or implied, of the principal, the act of the agent might be affirmed, and the contract rendered binding on the insurers by the subsequent assent of the principal. But in such case, the insurance being made for the principal, the claim for the loss must also be for the principal, and not for the factor; and the interest must be averred hi pleading, and shown in proof, to be in the consignor. But the question we arc now to consider is, not whether the factors had the right or the power to insure the interest of their principals, but whether they had such an insurable interest in the goods which belonged to their principals, but were held by them on commission for sale,as to give vitality to a contract of insurance upon them in their ownnames asfor their own account. For this is an insurance by the plaintiffs for themselves, and tbeymust show aninsurableinterestinthemselvestoentitlethemto recover for the loss. So the plaintiffs themselves treat the contract on which they sue. The declaration proceeds on that ground : it predicates the loss it claims, as the loss of the plaintiffs themselves, and substantially avers the interest to have been in them. The proof of the averment was, that they held goods on commission for sale, as factors, which were deteriorated by the fire to the amount of the claim. To which the defendants object, that the actual interest of the insured in those goods, was the amount of the advances made on them, and the commission that would have been earned by the sale of them; and that the recovery must be limited to that amount. And it is clear, that to entitle them to recover the entire amount of the loss upon those goods, it must be shown that the possession and special ownership established by the proofs in the cause constituted an insurable interest, and that they had a right to insure that interest in their own names, without any further disclosure of the peculiar nature of the interest, than that they held the goods on commission.

It is well settled, that 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 w each distinct interest in the same subject, may be protected by a separate policy on the subject, for the party interested in it. The mortgagor and mortgagee may both insure; so may the trustee , , . , , . and the cestuy que trust; and so may every party who has any special interest to protect, or who represents the property as the qualified owner of it; 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 and course of dealing.

It has been held, that captors have an insurable interest in the prize before condemnation, [The Omoa case, Park on In. 358.] on the ground of possession, and the inchoate right of property acquired by the capture, and the necessity of permitting them to insure the property, which the original owner had no longer any interest to protect. And in the case of Stirling v. Vaughan, [11 East 619.] the same general question came under review, and the court decided that the prize might be insured by an agent, and interest averred in the captors: and they put the case substantially upon the ground of actual possession of the property, with the general right to retain it against all the world, subject to the release of it by the crown to the original owners before condemnation. But the case of Lucena v. Crauford [3 Bos. & Pul. 75.] is yet stronger. In that case, commissioners appointed under an act of parliament, for the custody, care, sale and management of such ships and cargoes, belonging to subjects of the United Provinces as should be brought into the ports of the United Kingdom, were held to have an insurable interest in Dutch ships and cargoes on their passage to England, which had been taken by a British cruiser, under the instructions of the admiralty, and sent in to be detained provisionally. It was a case in the Exchequer Ohamher, upon a writ of error from a judgment of the court of King’s Bench. That judgment was in favour of the assured, and it was affirmed by all the barons of the court of exchequer and judges of the common pleas, except Mr. Justice Chambers. The judges, ...... .. , who affirmed the judgment, assimilated the commissioners under the act to trustees and factors. They all held, [and Chambers, the dissenting judge, concurred with them in holding,] that it was not necessary for an assured, to have a beneficial interest in the property insured; but that it is sufficient if he be clothed with the-character of a trustee, an agent or a consignee ; and that if the commissioners could be considered in either of those capacities, they had an insurable interest; and it was held, that they might be considered as trustees for the crown, or for the persons who should be ultimately entitled to the property, as general agents, for the purpose of disposing of the property on its arrival, or as statutable consignees ; and that it was not necessary that the particular cestuy que trusts, should be ascertained at the moment of insurance. That they might be trustees for persons unknown, or for objects not precisely ascertained at the time the insurance was effected; yet, if they were trustees for any purpose, they acquired from that character a sufficient interest in the trust property to insure. It was objected in that case, that the Dutch commissioners did not resemble consignees, because those commissioners were directed to sell and dispose of the property entrusted to them, according to the instructions they should receive from government. But to this the judges answer, that many consignees receive goods with orders to attend to the directions of the consignor as to their disposal, and yet they were not the less able to insure. The commissioners, it was conceded, would not have been at liberty to disobey the directions of the government, from whom their commission was derived; but it was observed,. that in default of directions they, like other consignees and trustees, had the sole management in themselves, and might act upon their own judgment.

This case has a direct bearing upon the question before us, and if the principle of it be correct, would seem to settle the present controversy. The judges throughout, assert it as an established principle, that a consignee of goods for sale, may insure the property he holds under the consignment, as his own, and that he derives his insurable interests from the relations in which he stands to the property as consignee, and his possession of it and power over it, in virtue of that relation, and not from any orders or authority, express or implied, from the consignor to insure. The consignee is coupled with the trustee of property, and the same general and unqualified power to insure, is ascribed to both. Now, the insurable interest of a trustee, in the trust property, is admitted. How, then, if the opinions of these judges are to be relied on, can the insurable interest of the consignee in the goods he holds on consignment, or sale, be questioned 1 In the case of the Dutch commissioners, the court went much farther than we are required to go. It was there held, that a marine insurance on the Dutch ships and cargoes under detention, or provisional capture, might be insured by the commissioners against maritime risks on their passage, and before they came into the psosession„ and under the charge, of the commissioners. It is sufficient for the decision of this cause, that the consignee should have the power to insure the goods, entrusted to him.for sale, and which he has in his actual possession and charge, against loss or damage by fire, in his own warehouse. And without such a power, he will be unable to extend the same protection to the goods of his principals, that common prudence requires him to give to his own property.

But it may be said, that the case of Lucena v. Craufurd was afterwards reversed by the House of Lords : and the fact is so. But that reversal was upon the ground, that one of the vessels for which an indemnity had been recovered, was not lost until after hostilities had been declared against Holland, whereby the vessel was impressed with the character of enemy’s property; and if she had arrived-in England, could not have come into the possession of the commissioners, whose powers were adapted and restricted, to the case of provisional capture of the property of friends, authorised by the British government, from motives of policy, under the peculiar circumstances of Holland at the time \ but no opinion xyas expressed as to the insurable interest of the commissioners in the property which was lost before the decíaration of hostilities, and therefore might have come into their posgeggjon ag commission ers. And it was agreed that the action wag afc aUy rate, sustainable for the loss of the ship on the count which averred interest in the king. On these grounds a venire facias de novo was ordered, in order to bring the case more fully before the court. That reversal, therefore, did not unsettle the principle for which I contend ; and the views taken by Lord Eldon, whose opinion was followed by the Chief Justice of the King’s Bench and the Chancellor, and adopted by the house, strongly support it.

He recognizes the principle, that the actual possession of property, coupled with the right of possession, may confer upon the holder, who has neither the legal title, nor the absolute interest, the power to insure it as his own ; for he admits that the king has an interest in a prize before condemnation, for the purpose of insuring the property. He would seem, indeed, to dissent from the doctrine, supposed to be laid down in the Omoa case, that the ex-jrectation of a grant from the crown, gives the captors such an interest in the arrival of the prize, as to entitle them to insure it, in their own names, and for their own benefit. But he puts his dissent upon the ground, that the insurable interest was in the king, as the person who had the jus possessions, and that the possession of the captors, notwithstanding the liabilities they were under, and their just expectation of a grant from the crown, were still held by them, as agents of the king, as their principal, and could only entitle them to insure the property in his name, and for his benefit. And in the notice which is taken of the proposition, assimilating the commissioners to trustees, consignees and agents, the insurable interest of the trustee in the trust property is expressly acknowledged, and the right of the consignee to protect by insurance, the goods he holds on consignment for sale, is impliedly conceded. A trustee, his lordship observes, has a legal interest in the thing, and therefore may insure : and so, he adds, a consignee has the power of selling. He here refers to factors, who hold the goods of ¡heir principals for sale on commission, and obviously considers the right to insure-as incident 1o the plenary powers of such factors, over the goods entrusted to their agency. For he observes, that there are different sorts of consignees : those who have the power to sell, manage and dispose of the property, subject only to the rights of the consignor, and those who have a mere naked right to take possession of the goods. And he adds, that he would not say that the latter might not insure, if they state the interest to be in their principals.

These comments upon the rights and powers of these two classes of consignees, cannot, I think, be misunderstood. The fair import of them is, that the consignee with the power of sale has an insurable interest in the property he holds under consignment, and may insure it in his own name, and as his own ; but ■that the consignee who lias the mere naked right to take possession of the property, has no insurable interest in it; and though he may insure it for his principal;—yet, to give validity to the contract, he must state the interest to be in the consignor. In no other sense are the expressions of his Lordship intelligible," or would they have any bearing upon the question before him." And taking them in that sense, they sanction the principle distinctly affirmed by the court of Exchequer Chamber, that a factor, clothed with the power to sell, has an insurable interest in the property held by him under the consignment, and may insure it in his own name. This conclusion derives additional force, from the opinions of the judges, who were called upon for their opinions, and severally expressed them to the house on the point. The fifth question put to them was, in substance, whether the plaintiffs, as commissioners, had such an insurable interest in the ships and goods which the policies purported to cover, as to enable them to effect a legal and valid insurance thereon, for their own use, benefit and account, as commissioners. And to this question all the judges, except Justices Chambre and Lawrence, answered in the affirmative, as to all the ships. They assimilate the commissioners with consignees ; and they assume, as an acknowledged principle, that a consignee, without any beneficial interest in himself, is agent for the consignor, and may insure for his benefit. Again : they say that no one ever questioned but a consignee or agent, of the description spoken of by them, (and they speak of a consignee for the management and sale of goods) might make an insurance for the benefit of the owner and person enti-^ed, and for whom he, as consignee, is authorised to act. The Para^ between the commissioners and a consignee runs through the opinion; and the right of the commissioners to insuie in their own names, and to aver interest in themselves, is defended on the strong analogy approaching to identity with consignees, whose power to insure the goods consigned to them, and held by them-6for sale, is assumed as indisputable. And in this view of that point, Chambre and Lawrence, the two dissenting judges, concur with the rest of the judges. Chambre, J. observes,, that a consignment is a species of mercantile conveyance operating upon the particular effects consigned; and Lawrence, J. substantially a dmits the insurable interest of a consignee for sale.

From this case, then, which, from the discussion it underwent, and the judicial opinions brought to bear upon it, is entitled to the highest consideration, I deduce the proposition, that a consignee, with general powers to manage and sell the property, has an insurable interest in the goods in his possession as consignee, and may insure them in his own name, and aver the interest in himself.

I have been induced to examine these cases so much at large, not from any direct decision they contain on the subject I am discussing,but because they recognise so clearly and so fully the insurable interest of a consignee in the goods consigned to him for sale; a principle, which if sound, must, I think, be decisive of the question in this cause. And I regard these cases as much stronger,from the consideration that the important principle, so material to the validity of the insurance before us, is not discussed, or treated as a doubtful point, or an open question, but is assumed as a well settled axiom, and a point perfectly and entirely at rest.

It is stated on the one side, and admitted on the other, that the right of the consignee to insure the goods he holds for sale on commission, is indisputable; and the only question was, whether the persons insuring in those cases, came within the description of consignees, and had made the insurances in question in that character; and the reasons given for the rule show it to be based on foundations too solid." to be" easily shaken. The consignee is viewed in the light of a substitute for the consignor, with his rights and clothed with his powers; the absolute and unqualified owner in possession as against all others, except the consignor, and, whose title is defeasible by that power alone from whence it eminates.

A title, possessing so many of the properties of absolute ownership, must surely confer as high an interest as that which is vested in a trustee. The distinction attempted to be drawn between them, in favour of the trustee, to the prejudice of the factor, is purely technical. The trustee, it is said, has the legal title, the consignee has not. But that distinction, if important, is too broadly stated. The consignee has the full and exclusive possession of the property; and as long as the relation of factor subsists, is entitled to retain that possession against all the world. Most generally, he holds a bill of lading of the goods, vesting the legal title to the property itself, in him, or some acknowledgment of him by the consignor as absolute or qualified owner. Prima facie, then, he is, when clothed with any such document, the legal owner, and perhaps it would not be too bold a proposition to predicate of him, that the act of consignment, accompanied with full and exclusive possession,and the absolute power of sale, of themselves constitute him a trustee for the proprietor, and vest in him the legal ownership, for all the purposes of his trust, with the powers necessary for the preservation of the property as well as the performance of the trust upon which it is held. Certainly such a connection with the property approaches very near, if it does not come fully up to, the character of a trust. The consignee has an interest in the safety and preservation of the goods, consigned to him for sale, which the destruction or deterioration of them by fire would effect. He is bound also, to consult the interest of his principal in the management and care, as well as the sale of the goods, and insurance against loss and damage by fire, during the time the property continues in the warehouse for sale, as a measure of precaution, for the safety of the goods, and the security of the proprietors, must surely be within the compass of the powers of Mm, to whom the possession of the goods is entrusted for those purposes. It is for the benefit of the consignor that the goods should be kept under insurance ; and the general rule is, that the factor jjas a right to exercise his discretion for the benefit of the consignor. ■

. . j?aley observes, that one of the most important duties which the safety of merchandise requires of factors and consignees, who act as factors and consignees, is that of protecting it by insurance. It may be said that the factor is not bound to insure. But the question is not upon the obligation of the factor, but upon his right; and how far he has such a special property in the goods and interest in their safety, as to give him an insurable interest in them, in his own name, to the extent of their value.

It is not denied that a factor has a special property in the goods held by him on consignment for sale, and may maintain trover for them, if wrongfully withheld from him. And that species of ownership is vested in him, I apprehend, by the consignment itself, notwithstanding that there should not be any bill of lading, or other formal transfer in writing to vest the legal title in him. And it would be strange, that an interest, which authorises an action for the goods as his own, should not be capable of being insured, or that the duty of guarding the property from danger, should not give the corresponding right to insure it.

But again. It does not always require, either the legal title, or beneficial interest in the property, to entitle a party otherwise connected with it, to effect a valid insurance upon it. A carrier may insure the goods he contracts to convey; yet hé 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. So in the case of Oliver v. Green, [3 Mass. R. 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 that the objection of short interest was taken. And in the case of Bartlett & Goodwin v. Walter, [13 Mass. R. 267.] the charterer of a vessel who agreed to insure her, was held to have an insurable interest; and he recovered the actual value, on a count averring interest in himself.

These maybe 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, m the cases I 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 debt- or 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.

But it is objected, that a policy against loss by fire, differs from an insurance against maritime risks in this, that the assured, in n n insurance against loss by fire, must have the absolute or beneficial interest in the property insured, and that a mere insurable interest, in the mercantile sense of the term, is not sufficient. And the reason is said to be, that the policy against loss by fire, is a personal contract with the assured, to indemnify him for his loss, and not a contract to protect the property, for the benefit of the owners and parties in interest. So far as this distinction turns upon the difference in the usual forms of the two classes of policies, it may be well founded. For the marine policy is most commonly general in its terms, comprehending in its indemnity all who are interested in the subject of insurance; while the fire policy limits its protection to those who are specially named in it. But in any other sense the distinction is without solidity; for they are both personal contracts and contracts of indemnity to the assured solely. Neither of them protects the property at large, for the general benefit of the owners. It is the difference in the terms of the different contracts, that creates the difference in the nature and extent of the insurance : and I am not prepared to say, that the policy against the risk of fire, is not capable of as much latitude, as the policy against maritine risks.

Usually, and from prudential considerations, the companies who insure against fire, require the names of the assured, to be inserted in the policies, and restrict the insurance to the persons so named, and stipulate against a transfer of the policy without the consent of the insurers. So may the insurers against maritime risks: and upon such restricted policies the interest must be averred and shown to be in the persons insured in the policy, as strictly as in a policy against loss by fire. Thus in the case of Barker v. Marine Ins. Co. [2 Mason’s Rep. 369.] cited by the defendants; where an insurance was effected on goods which had been abandoned to the insurers and accepted by them, but the goods had been purchased in by the master himself, for the original owners, at a sale of them in the port of necessity and the policy was for account of the master, the original owner, or both of them: the sale to the master being held to confer no title upon him, the policy was adjudged to be inoperative, because the property, being vested in the insurers by the abandonment and the acceptance of it, prior to the insurance, the persons named in the policy had no insurable interest, upon which it could attach. So in the case of Graves & Barnewall v. The Boston Marine Ins. Co., [2 Cranch’s R. 419.] a policy on a cargo in which Graves & Barnewall were jointly interested, was held to cover the interest of Graves only, and not to insure that of his co-partner, because the name of Graves alone was inserted, and the insurance was in its terms for him only, and not for whomsoever it might concern.

It is for the same reason that the insurance against fire is restricted to the assured specially named in the policy. But the indemnity to the assured will embrace his entire interest in the subject insured; and I know of no principle, or adjudged case, which prescribes a narrower rule of insurable interdst of a policy against fire, than for a policy against the perils of the sea. The subject of insurance may be such as not to admit of any other insurable interest, than the beneficial ownership; whatever interest the assured might insure against maritime risks, he may insure against fire. And, indeed, the marine policies usually, if not universally, comprehend an indemnity against loss or damage by fire, during the voyage or term for which the insurance is effected; and the only difference between a marine policy, which enumerates loss by fire as one of the risks insured against, and a fire policy insuring against loss or damage by fire, is that the one protects the property from loss by fire on board of a ship, and the other from fire in a warehouse. The policy in each case, in its principle, without any special agreement engrafted upon it, is a contract of indemnity, and the assured must show an insurable interest, and a loss to himself, to entitle him to recover.

If, then, these plaintiffs had an insurable interest in the goods they held on commission, this policy covered that interest. The case of Lynch v. Dalzell, [2 Mar. on In. 801. reported in 3 Br Parl. Ca. 49.] does not militate against this construction of the policy. In' that case, one Ireland, the lessee of a tenement, obtained a policy from the Sun Fire Office, in the usual form, for the insurance of his house, with his goods therein, from loss and damage by fire. The assured died, and the policy was continued by his son, an executor, in the usual form up to Christmas, 1727. In August of that year, the house was destroyed by fire, and the loss was claimed by the plaintiffs, as purchasers of the house, and assignees of the policy. No assent had been given by the assurers to the assignment; and it appeared, that the policy, by the terms of the contract, was not assignable without leave; and it further appeared, that the purchase of the claimant was anterior to the fire ; but that the agreement for the assignment of the policy, was not made till after the agreement for the purchase of the term in the house, and that the assignment of it, though bearing date before, was. not made till soine time after the fire. And it was held, that, these policies are not insurances of the specific things mentioned to be insured, and do not attach on the realty, or go with the same, as incident there-' ° to, but are special agreements with the'.' persons insured, against BUC^ ioss or damage as they may sustain, and that 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 the points upon which the decision turned were, first, that the policy to Ireland, the assured, limited the satisfaction, in case of loss, to such loss as should be sustained by Ireland alone, which right had been transferred to his executor ; second, that there was no assent of the office to the assignment of the policy to the plaintiff; and third, that the assignment had not been agreed for, till the insured had determined his interest in the policy, by parting with the property, and had not been executed, till after the loss had actually happened. That decision, therefore, has no application; nor do the properties, ascribed by the court in that case, to policies against the risk of fire, materially vary from the principles of a marine insurance. The latter is, equally with the former, a personal contract with the assured, and the interest it protects," must” equally continue to the time of the loss. Neither of them is in its own nature assignable; but the interest of the assured in each,"where the terms of the contracts are the same, is equally transferrable by one to another. And the difference, in this respect, which usually prevails between them, results from the terms of the contents, variances in the terms of the policies, and from the stipulations in the policy against fire, and not from the diversity of the contracts in their principles.

But it was urged against¡the insurable interest of a consignee, that a supercargo, who has charge of the cargo for sale, is held to have no right to insure: and if maritime risks are intended, the reasoh is obvious. 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 oji the arival of the ship. The right, or power to insure, is not within the scope of his authority, and does not result from any necessity. He may indeed be vested with special powers, and lfe would in such cases acquire the correspondent right. But suppose the goods to be landed, and the instructions of the supercargo, to require, or authorise him, in given events, or at his discretion, to wait for a market; and in the exercise of those powers, it became necessary to warehouse the goods ; would not the right to insure them against fire, if deemed advisable, result, by necessary implication, from the power to retain the goods in store, and the consequent hazard to which they may be exposed 1 Unless the power to insure, should be held to vest in. him, the goods must remain, until the sale of them, at the risk of the owner, and that power must, therefore, in such an emergency, of necessity result to him.

But again. Suppose the goods to be consigned to the supercargo, and the bills, of lading to be delivered him, could a serious question be made of his right to insure against fire, or even against maritime risks 1 In the case of Buck & Hedrick v. The Chesapeake Ins. Co. [1 Peters’ S. C. Rep. 151.] the master, to whom the goods were consigned, •• was held to have an insurable interest in them. It is said, the point of this case was, that the goods were vested in him, and that they were documented as his. Let it be conceded, that such was the ground of the decision : the supercargo still had no beneficial interest in the cargo, but was, essentially, a mere 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 the consignment confers the right, may not every consignee of goods, for sale, claim the same title, by virtue of his consignment 1 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.

That case must be admitted to establish the principle, that a consignee, who holds the bill of lading and invoices of the goods, in Ms own name, has an insurable interest in them. And yet he has no higher title to the goods than other consignees ; for pjg p0Wers are revocable, and his interest defeasible, by the principal, at pleasure : and other consignees have a title equally se~ , ,, . , • „ , , , cure, 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 possessed of written evidence of his title ; the other may hold under a verbal transfer.

The fair result of these authorities, and the just consequence of the special property of the factor, in the goods held by him for sale on commission, is, that he has an insurable interest in them, to the full extent of their value, and may insure them in his own name, and recover the amount payable for the loss, on an averment of interest in himself. As between the factor who effects the insurance and recovers for the loss, and the consignor to whom the goods belong, a trust may result from the operation, and the consignee be held accountable to the principal for the avails of the insurance he effects, on the principles whch would have applied to the proceeds of the sale, however exclusive the contract of insurance in its terms may be, in favour of the factor, as absolute owner. But this is an accountability with which the Underwriter has no concern. The test of his liability is the insurable interest of the assured. And the rule of interest, which I incline to apply to the factor, while it violates no principle of law, essentially subserves the purposes of commerce, and the general interest of the community, without trenching upon the rights of the insurers, or involving them in any extra-hazardous risk. The operations of the commission merchant, necessarily require, that he should have the goods of those who employ him, in the same warehouses,' and so commingled, as to form one common stock, ostensibly, of the same ownership, and exposed to the same risks, and partaking of the superintendence, safeguard and care of the same agents. The consignee, or commission merchant, h'as the possession, management and disposition of the whole. Purchasers derive their title solely from him ; he has the power to sell the goods to his own creditor, in satisfaction of his own debt; and trespassers and wrongdoers who interfere with the property are amenable to him for the consequences. He is, in effect, the trustee, as well for the charge and management of the consignment, as for the sale of the goods, and the receipt of the price, and his principals are the beneficial owners, to whom he is accountable for the net proceeds; and he must, for the judicious exercise of his trust, have the power to protect the goods, while unsold, by insurance. Why, then, should be be 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 ? No one valuable purpose is to be answered by the separation ; for the risk on each is the same, and the whole is under the direction of the same agency. The convenience of all parties is consulted by covering the whole with one insurance, in the name of the consignee who has the actual possession and charge of the whole, and the same special property in all.

But again: the nature of the factor’s employment, renders an insurance by him in any other form, not only inconvenient, but impracticable; or extremely difficult in practice. He holds himself out to the world as a commission merchant, and solicits the consignment of all who may have goods for sale. The purpose of the consignments is the sale of the goods, and the merchandise of different employers, passes in succession under his operations and agency. The goods of A., which occupy a place in his warehouse, at the present moment, maybe sold before the close of the day, and the goods of B. take their place to-morrow; and in the course of thirty days, as many different lots of merchandise may have had the shelter of his warehouse, and been exposed for different periods of time, to the risk of loss or damage by fire therein.

How is these factor to protect these different interests by insurance ? If he is bound to specify each, he must either open a separate policy on each, or cause a specification of each to be endorsed on a general policy covering the goods of whomsoever it may concern : either of which methods would be attended, in an extensive establishment, with insuperable difficulties and neither of them fully accomplish the object.

These considerations may have led to the form of insurance in use, by a general policy, like the present, in the name of commjss[on merchant, on all goods that may be in his warehouse, at any time within a given period, to a specfied amount, whether held by him as owner, or in trust, or on commission. Suth a contract meets the exigencies of the case; for under it the insurers will be answerable for loss or damage by fire, within the terms of the insurance, to whatever merchandise or property may happen to be in the warehouse at the time of the fire, and be then held by the assured, as general or special owner, without regard to the time of his receipt of the goods in store, or the persons who may be interested in them.

The policy effected by the insured in this case, was manifestly intended for such á contract, to which it seems to us, fitly adapted. It insures the plaintiffs for one year upon all goods, wares and merchandise, in the warehouse which it describes, which shall belong to them, or be held by them in trust, or on commission, to the amount of $10,000 : and it is admitted, that the insurable interest of the assured in their own goods, and the goods of their principals, which were in the warehouse at the time of the fire, was covered by the policy. And if the plaintiffs, as consignees, had an insurable interest in the goods held by them on commission, to the extent of the value of the consignments, they were undeniably protected by the policy, and a more particular specification of the interest of the consignees, if otherwise necessary, was dispensed with by the parties to the contract.

But it is asked, with apparent confidence, why, if the consignee of goods, with a general power of sale, has authority as such, to effect insurance, orders to insure are ever given by the consignor 1 or why is it, that express or implied instructions to insure, must be shown, to charge the factor with loss, in case of his neglect to effect insurance 1

The defendants themselves have given an answer to the objection. They predicate of the factor, that he is not bound to insure; and the authority of Chitty is adduced in support of the Position. Paley agrees with Chitty ; and such seems to be the settled rule. The factor has an insurable interest, which gives him the right, but does not impose upon him the obligation, to keep the property under insurance. He is to exercise his own judgment, and to insure or not, according to his discretion. He may be dissatisfied with the terms of insurance. He may have stored the goods, in a fire-proof store of such location, as to be, in his judgment, sufficiently secure from fire; or he may have contracted for the sale of them, and be about to deliver them to the purchaser. In all these cases, the extreme caution of some factors, may still induce them to insure ; while the confidence of others, may lead them to trust the goods without insurance. And both classes, if they act in good faith, will be saved harmless; the one being entitled to the reimbursement of the premium, the other exempted from the loss. The consignor, if he desires his property to be insured, at all events, and is not willing to trust to the judgment of his factor on the expediency of the insurance, must give an express order; or must be entitled from the special circumstances, to have the property insured by the factor, or he cannot look to him for the consequences of neglecting to insure if.

But there is another answer to the objection equally conclusive. The orders to insure, to which the books refer, are orders for insurance against marine risks, usually the risks attending the transportation of the goods from the place of shipment, commonly the residence of the consignor, and the place of destination, generally the residence of the consignee. It is to that species of insurance, that Phillips refers, [chap. xxii. p. 519.] when, adverting to the principle that a consignee of goods has authority to insure them, so distinctly advanced in the case of Lucena v. Craufurd, he subjoins the comment, that this will depend upon the particular circumstances, for that it can hardly be supposed, that the mere fact of consigning goods to a foreign merchant, without any orders as to insurance, would of itself be a sufficient authority upon which to effect insurance, and charge the consignor with the premium. Without yielding to the justice of the comment, or examining how far the reason he opposes to the generality of the rule may require its restriction to cases specially circumstanced, I observe that there is a wide differ-between the insurance of goods against maritime risks on tpe voyage of exportation, and the protection of them by insurance w^ile 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 maybe 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 liim 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 bom 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, durin g their continuance in the warehouse of the factor, waiting for buyers. That insurance devolves immediately, and almost of necessity, upon the factor. He has the exclusive possession and charge of the goods. He 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 favour 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 own 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 the contract with reference to the usage, and must abide its influence on their liability. The general prevalence of suc^ 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, rat her 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 ail insurance for his benefit, and on an implied authority from him ; the policy must he 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 requisites 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 1 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 t-he protection and indemnity of the commission merchant, against loss or damage to any goods or merchandise, that may chance to be in his warehouse, at the time of the fire, and 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 he 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 hie 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 be misunderstood 1 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 1 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 interest in them.

It was certainly competent to the parties to enter into such an arrangement, and the contract would not be objectionable, as a wager or gambling policy; for goods equal in value to the amount claimed for the joss must be at risk, and no more would be recoverable than the actual loss or damage which those goods might sustain by fire. And the assured, if vested with a special property in the goods, would, on the principles applicable to trustees and agents receiving money for the use of the principal, be accountable for the surplus of the avails beyond their own reimbursement, to those whose interest they represent. Taking this article of the conditions, then, in connection with the description of the goods in the body of the policy, as being held on commission, and understanding the contract, with that feature in it, as I do, there could be no necessity for superadding any general words, to embrace the interest intended to be protected by the insurance. The defendants, according to the terms of the contract, insured the plaintiffs against loss .or damage by fire, to the amount of $ 10,000 on goods and merchandise, as well the property of the assured, as held by them in trust, or on commission, in a specified warehouse, and promised and agreed to make good to them all such loss or damage, not to exceed the sum insured, as should happen to the property thus designated, during the continuance of the risk. The insurancé was for the plaintiffs, on property held by them on commission, which might be in their store at the time of the loss; and the promise is to make good to them all. such loss or damage, as should happen by fire to that property. It was the loss or damage to the goods under consignment, by fire, that was to be made good; and that loss or damage was to be estimated according to the true and actual value of the property, at the time the loss should happen. Would the reimbursement of the advances of the consignee, and the payment of the commission he would-have earned by the sale of the goods, satisfy the terms of such an agreement 1 It surely would not be making good to the assured the loss to the property by the fire. If the insurance upon the goods held on commission -had been intended to be confined to the advances and commissions of the factors, who effected it, other terms would most probably have been used to describe the intérest. It would have better comported with the character of such a contract to have declared it to be an insurance on the advances and commissions of the consignees, or their own property in the goods, and the promise would have been to pay the loss or damage to the extent of that interest. The terms employed by the parties to this policy more aptly embrace the entire property in the goods, as the subject of the insurance, than the partial interest to which the limited construction now sought to be put upon the contract would restrict them. But again ; if the intention was to effect a partial insurance on the goods held by the assured on commission, and to cover the advances and commissions only of the consignees, and the policy in its usual form, without any special clause or declaration, was supposed to have that operation, to what end were the declaration and disclosure required, which the third article of the conditions calls for 1 The requisition is said to be intended for the benefit of the underwriters, and was of such importance to them, that its observance was made the condition on which the policy was to attach. What purpose, then, was it to subserve 1 It could not be designed to limit the risk to an interest to which they understood the policy itself, by its own character, to restrict it; and it could be of no use to them in making the estimate of the rate of premium. For upon the construction the defendants contend for, the consignee alone would be insured, and his insurable interest would be precisely the same, whether his policy was upon goods generally, or upon goods declared, and insured, as goods held by him on commission; and the declaration, of course, could have no influence on the rate of the premium. The mere commission on the salé was too small a risk to create a solicitude on the part of the underwriter as to the vigilance of the factor in the safeguard of the goods ; and if his advances were to a sufficient amount to interest him in their preservation on his own account, the insurers would have the same pledge for his special care and attention that his absolute ownership would give him. Are we not justified in the conclusion then, that these parties, if they did understand a general policy for a factor not to embrace the entire value of the goods held by him on commission, must have intended by the specification introduced into this policy to extend its protection to that interest. It was desirable to the plaintiffs to keep the goods of their principals in their warehouse under insurance, and the defendant could have no reasonable objection to the risk.

In framing the contract on that principle, the leading object would be to select some apt and comprehensive form of description to designate the interest intended to be covered, and to limit the risk to property of that description. And these features appear in this contract. It is a policy prepared in reference to that class of risks, and has an article in the conditions which accompany it contemplating the insurance of goods held on commission, and requiring them to be declared and insured as such; and the contract conforms to the condition, being in terms an insurance upon goods and merchandise, as well the property of the assured, as held by them in trust or on commission. These terms of insurance, especially when taken in connexion with the explanatory condition, may surely be held to import an agreement, that the goods held by the assured on consignment for sale, might be the subject of insurance, and that the entire value of them, when declared and insured as such, should be covered by the policy; and the assured be entitled, in case of loss, to the same measure of satisfaction, as if they were his own absolute property. And if that conclusion be correct, these plaintiffs would, on that ground, even if other grounds should fail them, be entitled to recover.

But I view this feature of the policy in a light yet more favourable to the assured’s claim. I regard it as an implied admission, by the defendants, of an insurable interest of factors in the goods they hold on commission; and that a policy by the plaintiffs, in their own names, on goods generally, would attach upon the consignments in their hands for sale, and cover the entire interest in them. Hence the declaration in question was supposed to be necessary, and was required and made a condition of the insurance; not for the purpose of limiting the operation of the policy, but for the purpose of possessing the insurers of facts deemed material to a judicious estimate of the risk; and the civ» eun'istauce, that the consignee is coupled in the condition with ' ° 1 the trustee, tends to confirm this exposition of the policy. A trustee is acknowledged to have an insurable interest in the trust property; his declaration and insurance of the goods, as trust property, could neither invest him with any new interest in it, nor divest him of that which he had before. And the disclosure of the trust called for by the condition must have been required, on account of its supposed bearing upon the application for insurance, or the rate of premium. And when the consignee is placed on the same footing with the trustee, and the same declaration and disclosure of the nature of his ownership is required of him, it seems to follow, that his special property in the goods he holds on commission, must have been understood to be equally an insurable interest with that of the property of the trustee in goods held by him in trust, and that the information required of each was for the same purpose. The object of the requisition could not be the discovery of the consignees of the goods, as their names were not required to be disclosed, and as the disclosure was unimportant. The declaration and insurance by the trustee or the factor of the goods, he holds as goods held in trust or on commission, must have been required on the ground, that the legal title of the trustee and the special property of the factor, though conferring upon each an insurable interest to the value of the goods, yet did not authorize a calculation upon that active zeal and watchful vigilance in the safeguard of the goods, which an absolute ownership would probably ensure ; and that a higher rate of premium would be required for insuring goods for the special, than for the general owner. But the insurers, it is said, look to the character of the assured for integrity and prudence, and not his interest in the subject, as the ingredient in the risk. And it is suggested, that the object of the underwriters, in restricting the indemnity to those who are named in the policy, was to compel a disclosure of the persons whose interests were to be covered by the insurance, so as to enable them to judge of a risk, into which the character of the assured for integrity and for discretion and vigilance, so materially enters; a nd the inference is said to be, that thcSe defendants cannot be presumed, in the face of this settled and uniform rule and course of proceeding, to have agreed to extend this policy beyond ¡_he interest of the plaintiffs themselves, to property belonging to other persons not named in the contract. But this contract does not, in terms, restrict the insurance to the assured specially named in the policy ; and the information called for by the third article of the conditions, as we understand the agreement of the parties dispenses with that disclosure. That article simply requires, that goods held in trust or on commission should be declared and insured as such. The names of the cestuy que trust, or of the consignors, are not required to be disclosed; and we see in the example before us, that a simple declaration and insurance of merchandize, as goods held in trust and on commission, without the disclosure of the parties beneficially interested, were admitted to be sufficient to satisfy the condition, and give validity to the insurance. That the moral character of the assured, who may have powerful temptations to benefit himself by the fraudulent loss of the property, and his habits of care and vigilance, or of inattention and negligence, enter materially into the risk, cannot be denied: and it was upon this consideration principally, it is true, that the regulation was introduced, which restricts the insurance to the assured named in the policy and forbids the transfer of it to others. These reasons, however, refer to insurances on property in the immediate possession and charge of the assured, or to which they have free access. No such motives could actuate the insurer in estimating the risk he takes when he insures the goods of the consignor in the possession, and under the exclusive control, of the consignee. The disclosure of the fact of these goods being held by the assured on commission was notice to these defendants, that the goods were not to be in the charge or custody, or under the care of the owner of them, but of his agent and factor, during the continuance of the risk : and the defendants would look, therefore, to the character of factor, and not to that of the owner, for integrity, discretion and vigilance, and the claim he has on that ground to a disclosure of the names of the assured, was fully satisfied, by giving him the names of the factors.

Upon the whole, the result of my reflections upon the case, in all its aspects, is in favour of the plaintiffs’ right to recover the loss and damage to the goods he held on consignment for sale, upon the entire value of the goods, and that judgment must accordingly be entered upon the verdict.

Oakley, J., after stating the facts of the case.

The first question, which presents itself, is, whether the Judge-properly admitted the evidence, as to the alleged usage of commission merchants, in the insurance of the property of then’ consignors. The counsel of the defendants, on the argument, did not discuss this point; and, indeed, there seems to be no ground, on which the propriety of the admission of that evidence can be questioned. To ascertain the rights of the consignees, as to the insurance of the goods in question, it was clearly competent for them to show the course of trade in which they had been engaged, and that the insurance of the property in their hands, was a part of their regular and customary business as factors, although no express orders to that effect were given by the consignors.The defendants were bound to know this usage, and must be understood to contract in relation to it. [Phil. on Ins. 16, 17.] But it is not necessary to consider this point more particularly; as in the view I have taken of the case, the usage found by the jury has no material bearing on its merits.

The important question to be decided, is, whether the plaintiffs can recover on these policies, beyond the value of their own property, and the amount of their advances and liens upon the property held by them on commission. Their right of recovery to that extent is conceded by the defendants.

A policy of insurance, like all other written contracts, is to be construed, according to the plain, ordinary and popular sense of the terms used in it; unless, by the usage of trade, such terms have acquired a peculiar sense or meaning. [Robertson v. French, 4 East, 135.] Considering the policies in this case, according to this rule, it seems to be clear, that the parties intended that they should cover the goods held by the plaintiffs on commission, to the same extent, as those which were their absolute property. The language of the instrument is sufficiently explicit : The defendants agree to insure “ goods, as well the property of the assured, as those held by them on commission.” Nothing is said, in terms, of the interest of the plaintiffs, in goods held by them on commission. Although the plaintiffs, in compliance with the third condition annexed to the policies, apprized the defendants, that they wished insurance upon other goods than those in which they had the absolute property, the defendants did not think proper to limit or qualify the terms of the contract. Indeed, it is fairly to be inferred, from the terms of that condition, that the defendants understood, that insurance on goods generally, as the property of the assured, would, independently of the condition, cover goods held in trust, or on commission. And what seems to remove all doubt, as to the actual intent of the parties, is the rule, by which the amount of damage, to the property, insured, is to be estimated. It is, by the express terms of the policies, tobe “according to the true and actual value” of the property at the time the loss may happen. This rule is applied alike to all the kinds of property enumerated in the policies. As to goods, the absolute property of the assured, no other rule could have been adopted. And the application of that rule, to goods held on commission, marks, very clearly, the understanding of the parties, that no distinction was to be made, as to the character of the interest of the plaintiffs in the different kinds of property insured. The whole tenor of the policies shows, that all goods covered by them were considered, to the same extent, and for all the purposes of the insurance, as the property of the assured.

Such being the contract actually made between the parties, the question arises, whether a factor or commission merchant, having property consigned to him for sale, and in his actual possession, has any general interest in it, which will enable him to make a valid contract of insurance in his own name ; cover'ng the whole value of the property without regard to the extent of his lien. This is a question of very great importance to the commerce of this city. The practice of insurance against fire, on the property of the foreign merchant, in the hands of Ms consignee, greatly tends to promote the interests of trade : and it. ough.tto be upheld by any means not inconsistent with establislied rales of law. The well known and usual mode, among • commission merchants, of covering the property of their principals, is by a general insurance upon time, like that in the case now before us. A policy, thus made, cannot be considered as attaching specifically and solely, on the goods in the hands of the factor, at the date of the policy. It is well understood by the parties to all such contracts, that the property of consignors is constantly changing, in the hands of the consignee; and that it will and must often happen, that no part of the specific goods, originally covered by the policy, is exposed to loss, when any fire may take place. Indeed, it does not appear, how insurance against fire, on property in the possession of a factor, which may be sold at any moment, can be effected on each consignment of goods, rvithout subjecting the owner to great inconvenience. A sale of the goods insured would, at any time, put an end to the policy. Such a mode of insurance would give to the insurers an unreasonable advantage; as a premium would, almost always, be taken for a period greater than that of the risk actually incurred. And although a return of premium, in such cases, might be specially stipulated for in the policy; yet, it is apparent, that the necessity of multiplying these special stipulations, and of the frequent insurances, Avhich must be resorted to by the factor, would greatly embarrass the course of his business. The mode in use, Avhile it gives every facility to the commission merchant, subjects the insurer to no disadvantage. It would be a matter of much regret, if this mode, so beneficial to the general interests of trade, should be found to be unsupported by latv.

The consideration of. the question notv before us, leads to a vieAV of the rights and potvers of a factor over property in his possession, for the general purposes of sale. These rights and powers grow out of the relations existing betAveen him and his principal, and between him and third persons or strangers. As it relates to his principal, he has no power to deal with the property consigned to him, otherwise than according to his instructions. He has a right to retain it, or its proceeds, for payment of all commissions and charges, and for the reimbursement of all advances. As between principal and factor then, the interest of the latter in the property may justly be said to extend no farther than his lien. But as between the factor and third persons, p0Wers an¿ rights are of a very different character. And it ma^ a^hmed, that in all questions relating to the property in his hands, arising between him and them, he is, without the positive interference of his principal, considered by the law, as the owner. As it 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, he may maintain his action as owner of the goods. 2 Saund. 47. b. note.] And in such cases the damage is laid in the delaration to be his. So, he has the absolute power of selling the goods ; and may give discharges to the purchaser; although he sell to his own creditor, for the purpose of satisfying his own debt [Cowp. 256. 1 Com. on Con. 243. 3 John. Ch. Rep. 573. 5 do. 429.] And it is the constant practice upon such sales, for the factor to sue for and recover the price of the goods, in his own. name. So an auctioneer may maintain an action in his own name for goods sold and delivered; though he sells them at the house of his employer, and the goods are known by all parties to belong to him. [ Williams v. Millington, 1 H. B. 81. Hulse v. Young, 16 John. R. 2.] And it was so held, on the ground that the auctioneer had the possession of the property, coupled with an interest. And Lord Loughborough in Williams v. Millington, likens the case of an auctioneer to that of a factor, in point of principle. So, if the factor should entrust the goods to a common carrier, and they should be lost, under circumstances rendering the carrier liable; it cannot be doubted, that he might maintain an action in his own name, for the full value of the goods. In these cases, the purchaser or carrier, would, never be permitted to inquire into the relations subsisting between the factor and his principal, or to limit the extent of their liability by reference to the amount or extent of the factor’s lien on the goods.

It would seem to follow, from this view of the powersand rights of general factors or commission merchants, that for all purposes connected with the custody and disposition of the property, the law considers them as owners; and that 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: and that they may maintain actions in their own names, for the breach of any such contract, and aver loss and damage to themselves to the value of the property.

The contract of insurance, by a factor, against fire, seems to me to fall clearly within this general principal. It is a contract for the preservation and safe keeping of the property, until it can be sold. It is made in the regular course, and according to the custom and usuage of his business; and is expedient, if not necessary, for the prudent and judicious execution of his general powers as factor.

I am unable to perceive any ground, in principle or good sense, why this contract 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. I cannot find, that the conclusion I have arrived at—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, is any where opposed by authoriyt. The counsel of the defendants, at the bar, cited no adjudged case restricting necessarily, the insurable interest of a factor, or consignee, to the extent of his lien, on the property ; and none has fallen under my observation.

It is laid down generally in Phillips on Insurance, [44.] that the insurable interest of a consignee, or factor, is limited to the extent of his lien. That writer gives no authority for his position ; and he lays it down without any .discrimination 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 five, than in the case of a marine insurance. convenience of trade would seem to point out and sanction a c]jfjgrencej ;n the application of the rule to the two kinds of jnsurance.

In several cases, the rights and interests of consignees or factors, in effecting marine insurance, have been incidentally alluded to by the courts. Thus in Lucena v. Craufurd, [3 Bos. & Pull. 95.] the Judges say, “ It is not necessary, that the assured should “ have a beneficial interest in the property insured. It is suffi- “ cient if he be clothed with the character of a trustee, an agent, “or consignee.” And again, [p. 98.] they observe, that “many “ consignees receive goods, with orders to attend to the directions “ of the consignors asto their disposal; and yet they are not theless “ able to insure. So every trustee is subject to the directions either “ of cestuy que trmt, or the Court of Chancery.” In the same case, in the House of Lords. [5 Bos. & Pull. 289.] Lord Eldon says, “ a trustee has a legal interest in the thing and may there- “ fore insure. So, a consignee has the power of selling.” In Craufurd v. Hunter, [8 T. R. 13.] which involved the consideration of the same policy, Lord Kenyon says, there is no doubt, that a trustee or consignee may insure : and Grose J. remarks, that if the plaintiffs in that case, were “ either trustees or consignees,” it seems admitted that they might insure.

It is manifest, that the judges in these cases considered a trustee and consignee as standing on the same ground, and having the same right to insure. And it is not questioned, that a trustee has an insurable interest in goods, as owner, to their full value, although he may not have a beneficial interest in them to any extent, and that insurance may be effected by him, on the ground of his own interest, and not as agent of the cestuy que trust.

It has ben objected at the bar, that this view of the interest of a factor, or consignee, exposes the insurer to the danger of double insurance. The same remark will apply to the case of mortgagor and mortgagee, Trustee and cestuy que trust

In 13 Mass. 67. it is said, “that a bona fide equitable inter- “ est 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.” And again, that “ several persons, hav- “ ing several interests, may insure to the full value of that in“terest.”

Although there may thus be a double insurance, on the same . — . thing, and, as m the case of trustee and cestuy que trusty to its full value ; yet in case of the destruction of the thing insured, there could be but one indemnity recovered. If in a subsequent policy, there be “ no provision in respect to prior insurance, the “ amount of insurable interest for such policy will be the same as “in the first: for the assured may insure again and again the “same property against the same risks, if he will pay the “ premiums : but he can recover only one indemnity.” [Phil. on In. 326. 1 Burr. 489.]

In the policies now before us, it is stipulated, that the assured shall notify to the company, any other insurance, which they had effected, or should effect, on the property insured. The defendants have provided, as far as they deemed it expedient, against double insurance. They were apprized that other persons, than the assured, were interested in the property insured: and they might have guarded against the acts of the consignors of the “ goods held on commission,” by requiring the assured to disclose the names of such consignors, from time to time, as their consignments came under the protection of the policies.

There is another view of this case, which will also result in establishing the liability of the defendants, to the full value of the “ goods held on commission” by the plaintiffs. In marine policies, effected in the name of a particular person, where it is intended to cover the interest of other parties, it is usual to insert the clause “ for whom it may concern.” And it seems well established, that a policy containing such a clause, or other equivalent ones, will protect the interest of any person in the property insured, in whose behalf the assured has a right to act as agent.

Now, whatever doubt may be raised as to the extent of the insurable interest of a factor; it cannot be questioned, that as agent of his principal, he may effect insurance, for his benefit. The words “ goods held on commission” in these 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 were acting for the benefit of their consignors : and that other interests, than their own, were to be protected by the policies.

In this view of the policies, it would be necessary to consider, how far the plaintiffs could recover upon the pleadings, in this case, beyond the extent of their own absolute interest; or how far the averment of interest in themselves is supported by proof of interest in their consignors. In Bell v. Ainsley, [16 East, 141.] it is said, that since the statute 19 Geo. 2. c. 27. (which declared insurances without interest, by way of gaming; void,) “ the con- “ stant practice has been to state in whom the ’interest is, and for " whom the policy was made, and to make that statement accord- ing to 'real fact.” And in that case it was held, that joint owners of property, insured for their joint use, cannot recover on account, averring the interest tobe in one of them.

In Cohen vs. Hannam, [5 Taunt. 101.] the same rule, as to the averment of interest, was laid down.

If the present case was governed by the rule above referred to, it would follow, that upon the declaration, as it now stands, there could be no evidence admitted, of any interest in the goods insured, other than that of the plaintiffs. If the cause turned upon this view of the policies, it would be necessary to consider, how far the rule, as to the averment of interest above alluded to, has its origin in the English statute in restraint of gaming insurances. I prefer, however, that my opinion should rests on the broad ground, that the plaintiff had an insurable.interest in the “goods held on commission,” to their full value, without regard to their lien; and if I am correct in this, there can be no question as to the pleadings in the case.

The result of our opinion is, that there must be judgment for the plaintiffs, for the amount of the entire loss sustained on the goods.

Judgment for the plaintiffs.

[D. Lord, atty. for the plffs. W. S. Johnson, tty. for the defts.]

       Le Cras v. Hughes.