acting in any fiduciary capacity, and not to be limited to any special fiduciary capacity. Therefore, under the act of 1867, no debt created by the defalcation of a bankrupt, while acting in any fiduciary capacity, will be discharged, and a bankrupt can be imprisoned, during the pendency of the proceedings in bankruptcy, by or against him, on a civil action founded on any such debt." In re Seymour, 1 Nat. Bank Reg. 29. This reasoning has not been satisfactory to all the courts. The Supreme Court of Massachusetts, in a well-considered opinion, declined to follow it, holding the phrase, debt created while acting in any fiduciary character, implied a fiduciary relation existing previously to, or independently of, the particular transaction from which the debt arises. That the omission of the enumeration of the specific trusts named in the act of 1841 from the act of 1867, it was quite as legitimate to infer, was because the term "fiduciary capacity" had, by judicial construction, received a fixed definition and with the intent to adopt that definition, as to enlarge its meaning so as to embrace any fiduciary capacity whatsoever. Cronan v. Cotting, 104 Mass. 245. The question can be finally settled only by a decision of the Supreme Court of the United States.

66

It is certainly true, as a general rule in the construction of statutes, that general words, preceded or followed by particular words in the same or a subsequent clause, are qualified and restrained by the particular words. Though the Supreme Court of the United States, in Chapman v. Forsyth, assigned as a reason for holding the debt of a factor not excepted from the operation of his discharge in bankruptcy, that the trust of his relation was an implied, not an express trust, and therefore not ejusdem generis with the express trusts particularized, as those of an executor," "administrator," "guardian," or "trustee," and that the general words, or "other fiduciary capacity," must be limited to the class of trusts particularized, we do not understand the decision to rest on that reasoning alone. It rests on the broader ground, stated by the court in these words: "If the act embraces such a debt, it will be difficult to limit its application. It must include all debts arising from agencies, and, indeed, all cases, where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first sectiou of the act.

In England, bankrupt laws were originally framed to operate only on traders or merchants. The statute of 6 Geo. 4 collected in one clause the various denominations of traders, subject to bankrupt proceedings, in these general words: "All persons using the trade of merchandize by way of bargaining, bartering, commission, consignment or otherwise, in gross or by retail; and all persons who, either for themselves, or as agents or factors for others, seek their living by buying or selling," etc. 1 Eden on Bank. 3. The bankrupt law of 1800, following the English precedents, was limited in its operation to "merchants or other persons, residing within the United States, actually using the trade of merchandize by buying and selling in gross or by retail, or dealing in exchange, or as a banker, broker, factor, underwriter, or marine insurer." The law of 1841 embraced the characteristics, not only of a bankrupt, but of an insolvent law, and extended to all persons, excepting the fiduciary debts expressly mentioned, from its operation. The constitutionality of that law was doubted and denied by learned judges, because it embodied the distinctive characteristics of a bankrupt

and of an insolvent law. It was urged that bankruptcy was essentially an adversary proceeding by a creditor against a defaulting trader, who had done acts indicative of an intent to defraud creditors, or of present or impending insolvency. Such was the character of proceedings in bankruptcy known when the constitution was formed, and the power conferred on Congress, "to establish uniform laws on the subject of bankruptcies throughout the United States," must be taken as referring to laws similar to those prevailing then, operating only on merchants or traders, and which were designed as remedies for the collection of debts and the prevention of frauds on creditors. See dissenting opinion of Bronson, J., in Sackett v. Andross, 5 Hill, 328. It was, however, settled, and is not now a matter of controversy, that the power conferred on Congress is plenary, including the power residing in the several states before the adoption of the constitution, to pass laws upon the subject of bankruptcy and insolvency. 2 Story Const., §§ 1105-15. It has often been remarked that the clause of the constitution conferring this power is referred to by the Federalist in only a brief sentence: "The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds, where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn in question." Federalist, No. 42; Hamilton's Ed. 1875, 336.

Bankrupt laws are inseparably associated with commerce and its pursuits. They had their origin in commercial countries, and were intented to advance the interests and promote the convenience of commerce. Whether including or omitting the discharge of a debtor from all further liability, on a cession or surrender of his property; and whether confining its remedies to involuntary proceedings against a debtor, or permitting him voluntarily to make the surrender entitling him to a discharge; whether subjecting only particular classes of, or all debtors to their operation, is matter of legislative policy. The law remains an outgrowth of commerce, intended for its interest and convenience. A bankrupt law, excluding any class of merchants from its operation, would to that extent depart from the policy and purposes, such laws are now and have been framed to promote. Factors, commission merchants, brokers and bankers, who have not only the character of merchants or traders, but the relation also of agents, are liable to accidental losses and to misfortunes which may often reduce them to insolvency. The present bankrupt law, and that of 1841, were and are founded as much in the spirit of affording relief to meritorious and unfortunate debtors, as with an intent to provide remedies for the collection of debts from the reckless or dishonest. The trustee of an express trust, such as an executor, administrator or guardian, or a mere collecting agent, can not, without a dereliction of duty more or less censurable, become indebted to his cestui que trust or to his principal. A fiduciary relation between him and the person he represents exists previously to and independent of the particular transaction from which a debt can originate. Because of his want of fidelity and his dereliction of duty, it may be just to withhold from him the relief intended only for the unfortunate.

Trustees and agents, of the character of which we speak, can not mingle with their own the funds they may receive in their representative character. If deposited in a bank, they must be deposited as trust funds. Mingling or depositing them as their own, is a destruction of the means of tracing and identifying them, and is a conversion rendering them absolutely liable for them. The business of a factor is not confined to a single transaction with a single individua .

It extends to a number of persons, and varied transactions. A cotton factor but seldom sells, or can in one sale dispose of the cotton of one customer only. He sells a certain number of bales classified according to quality, the price varying according to the classification, and the aggregate proceeds of sale are paid to him. The cotton was the property of several customers, to whom he must separately account, when it is ascertained how much of the differing qualities of cotton each owned. Until then, the proceeds of the sale are necessarily mingled with his own funds, or if deposited, are incapable of deposit otherwise than in his own name. If lost because of such mingling or of such deposit, it can not be properly said he is guilty of a defalcation, which imports a breach of duty legal and moral. Vail v. Durant, 7 Allen, 408. A debt would be due from him to his principal, he would be bound to pay; but it could not be said he had appropriated or embezzled the money of his principal.

The course of business pursued by cotton factors certainly involves, as does all business, trust and confidence extended by those who consigned to them. The trust and confidence is also extended by them to those from whom they receive consignments. They make advances in anticipation of consignments, and for a longer or shorter period the owner of the cotton is their debtor. This case is an illustration. The factors, before the cotton was grown, had made advances to the planter, and when it was received and sold, he was indebted to them near one-half of the proceeds of the sale. The course of dealing was that in which mutual debts are incurred; the one being the creditor at the one time, while at another time he may be the debtor. Such a course of dealing, we can not think, is the fiduciary relation which is excepted from the operation of the bankrupt law. It has in it no other element than that of contract, and creates no other relation than that of debtor and creditor. The bankrupt law would not accomplish the beneficent purposes designed by Congress in its enactment, if construed to exclude from its privileges a class of merchants pursuing such a course of business.

It is a general rule of statutory construction that, when a statute has received a known judicial construction, and is substantially re-enacted, the legislature is presumed to adopt such construction. The words of the act of 1841, "fiduciary capacity," and the words of the present law," fiduciary character," are the same in signification in the connection in which they are found. The words of the act of 1841 had received a well-known and fixed judicial construction. It was in view of this construction, as we believe, that only these general words, embracing the specific trusts enumerated in the act of 1841, and all kindred trusts were employed to denote the fiduciary debts which remain unaffected by the bankrupt's discharge. There is now, as there was in the act of 1841, an express exclusion of debts created by fraud or embezzlement, or by defalcation as a public officer; but trust or fiduciary debts are defined only by the general word, "while acting in any fiduciary character." Because of the judicial construction these words had received, no necessity existed for an enumeration of the specific fiduciary capacities with which they had been previously associated. Cronan v. Cotting, supra. If Congress had intended the meaning given them by judicial construction should be enlarged, and the operation of the law lessened by the exclusion of a class of persons who had been the subjects of all former bankrupt laws, the intention would have been expressed in clear and well-defined terms, such as are employed in reference to debts, created by fraud or embezzlement, or by defalcation as a public officer.

We hold, a debt due from a factor for the proceeds of

goods sold is barred by his discharge in bankruptcy. The rulings of the circuit court were adverse to this view, and the judgment must be reversed and the cause remanded.

FIRE INSURANCE-GOODS HELD IN TRUST.

HOME INS. CO. OF NEW YORK v. BALTIMORE WAREHOUSE COMPANY.

Supreme Court of the United States, October Term, 1876.

1. INSURANCE OF GOODS "HELD IN TRUST"-EXTENT OF POLICY.-A policy of insurance taken out by ware house-keepers, against loss or damage by fire on "merchandise, their own or held by them in trust, or in which they have an interest or liability, contained in" a desig. nated warehouse, covers the merchandise itself, and not merely the interest or claim of the warehouse-keepers.

2. WHAT ASSURED ENTITLED TO RECOVER-If the mer chandise be destroyed by fire, the assured may recover the entire value of the goods, not exceeding the sum insured, holding the remainder of the amount recovered, after satisfying their own loss, as trustees for the owners.

3. MEANING OF "HELD IN TRUST"-Goods described in a policy as "merchandise held in trust" by warehousemen, are goods entrusted to them for keeping. The phrase, "held in trust," is to be understood in its mercantile sense. 4. SEVERAL POLICIES CONTRIBUTION.-A policy was taken out by warehousemen on "merchandise" contained in their warehouses, "their own, or held by them in trust, or in which they have an interest or liability." Depositors of the merchandise, who received advanees thereon from the warehousemen, took out other policies covering the same goods; held, that the several policies constituted double insurance, and that they bear a loss proportionally. 5. CONTRIBUTING POLICIES-ADJUSTMENT MADE BY EXPERT-EVIDENCE.-In a case of contributing policies, adjustments of loss made by an expert may be submitted to the jury, not as evidence of the facts stated therein, or as obligatory, but for the purpose of assisting the jury in calculating the amount of liability of the insurer upon the several hypotheses of fact mentioned in the adjustment, if they find either hypotheses correct.

6. WHAT EVIDENCE MAY BE SUBMITTED to a jury from which they may find a waiver of preliminary proofs. 7. NO PART OF A LETTER written as an offer of compromise admissible in evidence.

IN ERROR to the Circuit Court of the United States for the District of Maryland.

Mr. Justice STRONG delivered the opinion of the Court:

The most important question in this case relates to the proper construction of the defendants' policy of insurance. It is contended on their behalf that it covered only the warehouse company's interest in the goods contained in the warehouse. If this is the true meaning of the contract, the instruction given by the circuit court to the jury was erroneous. If, on the other hand, the policy covered the merchandise itself, and not merely the interest which the warehouse company had therein, there is no just ground of complaint of the charge of the circuit judge. Blanket and floating policies are sometimes issued to factors or to warehousemen, intended only to cover margins uninsured by other policies, or to cover nothing more than the limited interest which the factor or warehouseman may have in the property which he has in charge. In those cases, as in all others, the subject of the insurance, its nature and its extent, are to be ascertained from the words of the contract which the parties have made. It is as true of policies of insurance as it is of other contracts, that, except when the language is ambiguous, the intention of the parties is to be gathered

from the policies alone. There are cases in which resort may be had to parol evidence to ascertain the subject insured, but they are cases of latent ambiguity. So, in the construction of other contracts, parol evidence is admissible to explain such ambiguities. In this particular the rule for the construction of all written contracts is the same. Lord Mansfield said long ago that courts are always reluctant to go out of a policy for evidence respecting its meaning. Loraine v. Tomlinson, Douglas, 567. And so are the authorities generally. Astor v. The Union Insurance Company, 7 Cowen, 202; Murray v. Hatch, 6 Mass. 465; Levy v. Merrill, 4 Greenl. 480; Baltimore Fire Ins. Co. v. Loney, 20 Md. 36; Arnould on Insurance, 1316-17 and notes; Greenl. Ev., vol. 2, 377. It is no exception to the rule, that, when a policy is taken out expressly "for or on account of the owner" of the subject insured, or "on account of whomsoever it may concern," evidence beyond the policy is received to show who are the owners, or who were intended to be insured thereby. In such cases the words of the policy fail to designate the real party to the contract, and, therefore, unless resort is had to extrinsic evidence, there is no contract at all. Finney v. The Bedford Ins. Co., 8 Metc. 348.

Turning then to the policy issued to the plaintiff' below, and construing it by the language, the intention of the parties is plainly exhibited. Its words are: The Home Insurance Company "insure Baltimore Warehouse Company against loss or damage to the amount of $20,000, on merchandise hazardous or extra-hazardous, their own or held by them in trust, or in which they have an interest or liability, contained in " a certain described warehouse. There is nothing ambiguous in this description of the subject insured. It is as broad as possible. The subject was merchandise stored or contained in a warehouse. It was not merely an interest in that merchandise. The merchandise of the warehouse company, owned by them, was covered, if any they had. So was any merchandise in the warehouse in which they had an interest or liability. And so was any merchandise which they held in trust. The description of the subject must be entirely changed before it can be held to mean what the insurers now contend it means. If, as they claim, only the interest which the warehouse company had in the merchandise deposited in their warehouse was intended to be insured, why was that interest described as the merchandise itself? Why not as the assured's interest in it? Throughout the policy, wherever the subject intended to be insured is spoken of, it is described, not as a partial interest, not as a mere lien for advances and charges upon the goods held in storage, but as the property itself, whatever might be the existing rights to it. Thus the insurance company covenanted to make good to the assured all such loss or damage, not exceeding the sum insured, as should happen by fire "to the property as above specified." What that specification was we have seen. The policy also contained a provision that, in case of fire, the "property" destroyed might be replaced by similar "property" of equal value and goodness. There are other like designations. Nowhere is any less interest in the goods insured alluded to than the entire ownership. The words of the policy are not satisfied if their import be restrained as the plaintiff in error seeks to confine it. The parties to whom the policy was issued were warehouse-keepers, receiving from various persons cotton and other merchandise on deposit. They were empowered by their charter to receive bailments and to make charges against the bailors for handling, labor, and custody. They were also authorized to make advances upon the goods deposited with them, and their charges, expenses, advances and commissions were made liens upon the property. They had, therefore, an interest in

the merchandise deposited with them, which they might have caused to be specifically insured. It was also at their option to obtain insurance upon the entire interest in the merchandise, whether held by them or by the depositors. Nothing in their charter forbids such insurance. It is undoubtedly the law that wharfingers, warehousemen and commission merchants, having goods in their possession, may insure them in their own names, and in case of loss may recover the full amount of insurance for the satisfaction of their own claims first, and hold the residue for the owners. Waters v. The Monarch Assurance Co, 5 Ellis & Blackburn, 870; London and N. W. R. Co. v. Glyn, 1 Ellis & Ellis, Q. B., 652; DeForest v. Fulton Ins. Co., 1 Hall, 136; Siter v. Morrs, 13 Penn. St. 219. Such insurance is not unusual, even when not ordered by the owners of goods, and when so made it inures to their benefit. And such insurance, we must hold, the warehouse company sought and obtained by the policy of the plaintiff in error. The words, "merchandise held in trust," aptly describe the property of the depositors. The warehouse company held merchandise in trust for their customers, not, it is true, as technical trustees, but as trustees in the sense that the goods had been intrusted to them. They were not empowered by their charter to hold property under technical trusts cognizable only in equity. Hence, when they sought insurance of merchandise held by them in trust, it must have been intended of such as they held in trust, in a mercantile sense, goods intrusted to them by the legal owners. That such is the meaning of the words, as used in this policy, we can not doubt. And such has been held by courts of the highest authority to be the meaning of similar words in fire policies. In Waters v. The Monarch Fire and Life Assurance Company, above cited, the policy was issued to persons described as corn and flour factors, who were in fact flour merchants, warehousemen, and wharfingers. It was on goods in their warehouses, and on goods in trust or on commission therein. The assured had in their warehouses goods belonging to their customers, deposited with them as warehouse-keepers, and on which they had a lien for charges for cartage and warehouse rent, but no further interest of their own. They made no charge to the customer for insurance, nor was the customer informed of the existence of the policy. It was ruled that the goods were held in trust, within the meaning of the policy, and, there having been a destruction by fire, that the assured were entitled to recover their entire value, applying so much as necessary to cover their own interest, and holding the remainder as trustees for the owners. Lord Chief Justice Campbell said, "it was not intended to limit the policy to the personal interest of the plaintiff; for in this and all other floating policies the promise is to make good the damage to the goods." A similar ruling was made in The London and Northwestern Railway Company v. Glyn, supra. There the plaintiff's, who were common carriers, had obtained insurance of goods against fire, in a company of which the defendant was treasurer. The policy declared £15,000 to be insured "on goods, their (the plaintiffs') own and in trust as carriers" in a certain warehouse, and it was stipulated that the company were to be liable to make good to the "assured" all loss which they, "the assured," should suffer on the property therein particularized. In an action on the policy it was held that, to the extent of £15,000, the whole value' of the goods in the warehouse in the plaintiffs' possession was insured by it, and not merely their interest in the goods; and that the plaintiffs would be regarded as trustees for the owners of the amount thus recovered, after deducting their charges as carriers.

In opposition to this construction of the policy now before us, our attention has been called by the plain

tiffs in error to a provision in the charter of the warehouse company, and to the notice accompanying the receipts they gave for the merchandise delivered to them in storage. The tenth section of their charter, after requiring that the receipts, warrants, or warehouse certificates issued by the corporation for goods, wares and merchandise in their possession, should be signed by the president or vice-president and secretary, and attested by the corporate seal, after requiring that copies of them should be registered, and declaring that they should be transferable by endorsement, enacted that every such receipt, warrant, or warehouse certificate should contain on its face a notice that the property mentioned therein was held by the corporation as bailees only, and was not insured by the corporation. Accordingly all the warehouse receipts did contain such notices. But we are unable to perceive how the facts can have any bearing on the proper construction of the policy. The company was not prohibited by its charter from obtaining insurance, to their full value, of the goods left with them in bailment. At most, the requirement of the charter was that they should not themselves become insurers. And the notice required to be given to the bailors meant no more than that neither the receiving of the goods nor the certificate of receipt amounted to a contract of insurance. It would be straining the language of the notice most unwarrantably, were we to treat it as amounting to an engagement that the company would not obtain insurance of the property from some corporation authorized to insure.

Without pursuing this decision farther, we have said enough to vindicate our opinion that the policy upon which this suit was brought covered the merchandise held by the warehouse company on storage, and not merely the interest of the bailees in that property. It follows, necessarily, that there was double insurance. The policy issued to the warehouse company, and those obtained by the depositors of the merchandise, covered the same property, and they were for the benefit of the same owners. The persons assured were the same; for if the policies taken out by Hough, Clendennin & Co. were upon their goods, notwithstanding that the memorandum that the loss, if any, was payable to the Baltimore Warehouse Company, as may be conceded was the case, so was the policy now in suit. The insurers were liable, therefore, pro rata, each contributing proportionately. It follows that the plaintiffs in error have no reason to complain of the refusal of the court below to affirm their first and seventh points, and none to complain of the instructions given to the jury respecting the extent to which the plaintiffs were entitled to recover, if they could recover at all.

The next question presented by the record, which we propose to consider, is raised by the fourth, the seventh, eighth, and ninth assignments of error. Those assignments complain of the affirmance of the plaintiff's fifth point, and of the disaffirmance of the defendants' third, fourth and sixth. Beyond doubt it was a question for the jury whether furnishing preliminary proof of loss was waived by the defendants or by their authorized agent, if there was any evidence of waiver to be submittted to them. And we think there was such evidence. The defendants were an insurance company of the State of New York. By the act of the Maryland legislature, which empowered them to do business in Maryland, the agent of the company was required to have authority "from the parent office or offices to settle losses without the interference of the officer or officers of the said parent offices." Mr. Coale was their agent, and clothed with such authority. He could, therefore, waive the presentation of preliminary proofs, and his waiver was binding on his principals. Franklin Fire Ins. Co. v. The Chicago Ice Co., 36 Md.

102. A waiver may be proved indirectly by circumstances as well as by direct testimony. If, after the time for presenting preliminary proofs had gone by, Mr. Coale acted and'spoke as if they had been presented in season; if, while resisting the claim upon his company, he placed his objections entirely upon other grounds, and never alluded to any failure of the plaintiffs to exhibit preliminary proofs until those other grounds were apparently swept away; if, after making a payment for a loss of twenty-four bales of cotton, and after he was notified that the policy would be retained in order to assert afterwards other claims upon it, he expressly waived another one of its conditions, for the purpose of giving to the plaintiffs a continuing right to bring suit, the jury might well have inferred that the condition of giving notice of the loss and making preliminary proof had been waived. Such conduct on his part was consistent with a conclusion that such a waiver had been made. It is difficult to account for it if there had been none. Yet all this evidence and more was before the jury. These assignments of error, therefore, can not be sustained.

The sixth assignment of error requires but a single remark. We do not see that the evidence warranted the hypothesis upon which the defendants' second prayer was based; but if it did, it would be impertinent to the case. If the plaintiffs were mistaken in regard to their rights as against other insurers, such a mistake can not affect their claim on the defendants' policy. The tenth assignment has already been shown to be unfounded by what we have heretofore said.

It remains only to notice some rulings of the circuit court in respect to offers of evidence. The court admitted in evidence, notwithstanding objection by the defendants, several statements or plans of adjustment of the loss, made by an expert, and founded upon different theories of the law. They were not admitted as evidence of the facts stated in them, or as obligatory upon the jury, but only for the purpose of assisting the jury in calculating the amount of liability of the defendants upon the several hypotheses of fact stated in them, and stated only hypothetically. It is impossible that the defendants could have been injured by their reception, and without some such assistance no intelligent verdict could have been rendered. The jury was left free to accept either hypothesis, or reject them all. We think there was no error in admitting the calculations.

Nor was there error in receiving the record of the suit of Hough, Clendennin & Co. v. The People's Ins. Co., in the Maryland courts, under the circumstances of the case. The present parties had agreed to extend the time within which this suit might be brought until the decision of the questions involved in the suit of Hough, Clendennin & Co. The record of that suit. therefore, was evidence to show its termination. But if not, it was merely irrelevant, and it is not shown that it tended in the least to mislead the jury. A judg ment is not to be reversed, because evidence was admit. ted at the trial which could have had no bearing upon the issue, unless it appears that it was misleading in its tendency.

The only remaining assignment of error is that the court would not receive any part of a letter written by the president of the warehouse company to Mr. Coale, the defendants' agent. The letter was an offer of compromise, and as such, upon well-recognized principles, it was inadmissible. And it contains no statement which can be separated from the offer and convey the idea which was in the writer's mind. The court was clearly right in rejecting it.

The judgment is affirmed.

NOTE.-The courts are liberal in sustaining the right of trustees and agents to effect insurances for the benefit of

parties really interested in the property, where the fact of the trusteeship or the beneficial interest of such other parties appears. Insurance Co. v. Chase, 5 Wall. 509; Crawford v. Hunter, 8 Term R. 14; Lucena v. Craufurd, 3 Bos. & Pul. 75; Clinton v. Hope Ins. Co., 45 N. Y. 454. But it should appear in the policy that such beneficiaries are referred to, though unnamed.

In Graves v. Boston Mar. Ins. Co., 2Cranch, 419, the plaintiff having effected insurance in his own name alone, on property on board a certain ship, " as property may appear," sued for the value of property belonging to a firm of which he was a member, but was allowed to recover the value of his interest only. Marshall, C. J., said: "It is true that Barnewall need not have been named in the policy; but the contract ought to have been so expressed as to show that the interest of some other person than Graves was secured, if such was to be the effect of the instrument." The contrast between this and the later case of Phoenix Ins. Co. v. Hamilton, 14 Wall. 504, illustrates the doctrine of the principal case. In 14 Wall, the insurance was taken out in the name of a firm of commission merchants, on" grain in store, their own or held by them, in trust or on commission, or sold and not delivered." This firm had in fact dissolved; but the remaining partner was allowed for a period to conduct business in the firm name, during which period the insurance had been effected. Suit was brought in the name of the firm, asking judgment for the value of the grain received on commission, and lost, for the use and benefit of the owners; and the defense was based on misrepresentation and concealment as to the dissolution of the firm, and want of insurable interest. The plaintiffs recovered on the ground that, in cases of insurance on goods held in trust or on commission, whose owners may be numerous and perhaps unknown to the factors, "it is not expected, nor would it be possible, that the insurers should be informed as to the ownership." While the issues in this case are not in form the same as those raised in the principal case, there is no substantial difference between the two cases. The latter, however, is the more valuable and important of the two, by reason of the clearer and more distinct enunciation of the character of such contracts, and the rights of the parties under them.

Besides the cases cited in this opinion, there are several others in accord with it on the principal proposition; among them are Stilwell v. Staples, 19 N. Y. 401; Waring v. Indemnity Fire Ins. Co. 45 N. Y. 606; Etna Ins. Co. v. Jackson, 16 B. Mon. 242; Home Ins. Co. v. Favorite, 46 Ill. 263; Phoenix Ins. Co. v. Favorite, 49 Ill. 259; Strohn v. Hartford Fire Ins. Co., 33 Wis. 650. In 46 and 49 Ill., the policies covered goods "their own, or held by them in trust or on commission," and the court held the word trust here to intend mere ordinary bailments, and the policies to cover goods stored for a compensation. In 33 Wis., it was in dispute whether the parol insurance was "for the benefit of himself and others having tobacco in store, and to be stored, in his warehouse," as claimed on one side, or was "on tobacco owned and held in store by him," as claimed on the other side. But this was held to be an immaterial difference; in either wording of the contract, it was held the warehouseman could sue for the benefit of the unnamed parties.

Hough, Clendening & Co. v. People's Fire Ins. Co., 36 Md. 398, appears to be the same case referred to in the principal opinion, and one of those in which arose the other insurance there referred to. It was in that case taken as well settled that "a person having goods in his possession as consignee, or on commission, may insure them in his own name, and, in the event of loss, recover the full amount of the insurance, and, after satisfying his own claim, hold the balance as trustee for the owner." Citing Story on Agency, § 111.

Many of these American cases, by referring to Waters v. Monarch Assurance Co., 5 El. & B. 870, as an authority, assign to that case a leading position on the subject. There the plaintiffs were warehousemen and wharfingers, and their policy covered "goods in trust or on commission." Lord Campbell held this to cover "goods with which they were intrusted, in the ordinary sense of the word," and added: "They were so intrusted with the goods deposited on their wharfs. I can not doubt the policy was intended to protect such goods; and it would be very inconvenient if wharfingers could not protect such goods by a floating policy." To similar effect are the Scottish cases of Donaldson v. Manchester Ins. Co., 14 Cas. C. Ses. 601, and Dalgleish v. Buchanan, 16 Cas. C. Ses. 332.

Several other cases illustrate different applications of the

same principle. Thus, in Durand v. Thouron, 1 Porter (Ala.) 238, and Watkins v. Durand, Id. 251, the owners of the destroyed property recovered from their bailee proportionate shares of the insurance moneys collected by him, it appearing that the policies had covered the property held in trust, and that the insurance, in fact, inured to the benefit of the bailors. The Alabama court referred to the case of Graves v. Boston Ins. Co., but distinguished it in principle from those enunciating the doctrine of the Baltimore warehouse cases. But Turner v. Stetts, 28 Ala. 420, presented a different state of facts. There the insured had taken in his own name a policy providing "that property held in trust or on commission must be insured as such," but not specially naming any trust property. He had collected the value of his own property only, the insurers declining to pay the value of any property held in trust. The bailor of some of the property destroyed sued the insured to recover a share of the insurance money, but relief was refused him.

Shaw v. Etna Ins. Co., 49 Mo. 578, presents the question in still a different aspect. Consignors of ice had ordered it insured by their consignees, who took out insurance in their own names. One barge of ice being lost, the consignees then assigned the policy to the consignors, who sued on it as assignees. It was held that, by reason of their orders to insure, the consignees were liable for the whole cargo, if lost and not insured, and that they had an insurable interest commensurate with such liability, thus equal to the full value of the cargo, which interest they could rightfully assign to their consignors.

In Millaudon v. Atlantic Ins. Co., 8 La. 557, the policy covered "goods, stock in trade, on consignment or held in trust." The goods destroyed were owned jointly by the insured and another, but the insured had a lien on the whole share of his partner for advances. This, it was held, entitled him to recover the full value of the goods destroyed; but it was based more upon the reference, in the policy, to "stock in trade," than upon that to goods "held in trust."

Difficulties have sometimes been encountered in applying the principle under discussion. Brichta v. N. Y. Lafayette Ins. Co., 2 Hall, 372, and Rafel v. Nashville M. & F. Ins. Co., 7 La. Ann. 244, were cases where the policy required special mention of goods held in trust or on commission; but no such mention was made of the goods in dispute, and whose value was sued for; so no recovery was allowed.

In Ayres v. Hartford Ins. Co., 17 Iowa, 176, the clause requiring goods "held in trust or on commission" to be specially mentioned was defined in the policy to intend "property held under a trust, or under the appointment of a court, or property held as collateral security." It was decided that property held under a secret trust, in fraud of creditors, was not within the requirement, and did not need special mention.

In Steele v. Franklin Ins. Co., 17 Penn. St. 290, the policy insuring property "for account of whom it may concern," was held to protect only such interests as were, by the parties, intended to be insured at the time of effecting the insurance, and evidence was admitted to ascertain who were the intended beneficiaries, which resulted in excluding the claimants. The court distinguished this case from Siter v. Morrs, supra, where the policy covered goods "held in trust or on consignment."

South Australian Ins. Co. v. Randell, 22 L. T., n. s., 843, was a peculiar case, arising under a policy requiring goods held in trust to be especially named. It was held that wheat of various parties, mingled by a bailee in one common mass, and to be accounted for either in wheat or money, was not such trust property as to be specially mentioned in the policy issued to the bailee.

Parks v. Gen. Interest Ass. Co., 5 Pick. 34, was an exceptional case, limiting the recovery of commission merchants, under a policy on goods "held in trust," to such goods as they had made advances on, and excluding all others, contrary to the general current of the authorities, as shown above. But a different result was reached in Lee v. Howard Fire Ins. Co., 11 Cush. 324. There the policy insured the plaintiff on goods "his own, or held by him for others on commission." The defendant had asked the lower court to instruct the jury, in accordance with the Parks case, that the plaintiff could recover the value of goods consigned to him, only to the extent of his interest therein. The court refused this instruction, and recognized the plaintiff's right to recover the full value of the consigned goods, notwithstanding the consignors had not stipulated for insurance, and did not know it was effected, and had