the same against loss by fire; the loss,
if any, being, by the terms of the po-
licy, made payable to "Seth Grosve-
nor" (the plaintiff), "mortgagee." In
an action by the plaintiff' upon the po-
licy, this Court, holding in obedience
to The Traders' Ins. Co. v. Robert, and
to Tillou v. Kingston Mu. Ins. Co. that,
no acts of the mortgagor, done after
the issuing of the policy, could affect
the rights of the mortgagee under it, or
to recover upon it; also held, that the
admission of evidence that, when the
defendants were applied to, to issue the
policy, they were told that the interest
of the mortgagee was to be insured,
and they advised, as the best mode, the
insertion of his name in the policy, as
it was done; could not prejudice the
defendants, and was not, therefore, an
error entitling them to a new trial.
Grosvenor v. The Atlantic Fire Insu-
rance Co. of Brooklyn.

469

21. The mortgage, owned by the plain-
tiff, being one that the insured had ex-
ecuted to E. Kellogg, and the latter
had assigned to the plaintiff, at the
same time guaranteeing its payment;
it was also held that Kellogg was, un-
der the code, a competent witness for
the plaintiff: The action cannot, by
reason of Kellogg having given such a
guaranty to the plaintiff, be said to be
prosecuted for the immediate benefit of
Kellogg. At most, he is merely inte-
rested in the result.

id.

2.

by his principal as possessing that au-
thority, a sale made by him to an inno-
cent purchaser, although in violation
of his duty, and of his secret instruc-
tions, cannot be impeached. But the
mere possession of goods, by a factor or
commission merchant, is not evidence
to the world that he has an unlimited
authority to sell them, so as to preclude
the owner from impeaching a sale made
by him, by showing that the goods were
entrusted to him for a wholly different
purpose. Cook v. Beale & Adams. 497

It is true, there are some dicta that
support this proposition, and that have
led to its adoption by some of the text
writers; but there is no express adju-
dication, and the cases relied on as jus-
tifying it, when carefully examined,
are found to lead to an opposite con-
clusion.
id.

3. A sale made by a factor or agent not
entrusted with the documentary evi-
dence of title, or with the goods them-
selves for the purpose of sale, is not
rendered valid by the provisions of the
Factors' Act. On the contrary, the
6th section of the act, by a necessary
implication, declares such a sale to be
void.
id.

FIRE INSURANCE.

The insurance, in this case, by a policy
against fire, was upon "the printing,
and book materials, stock, paper, stereo-
type plates, fixtures, printed books, and
steam-engine, and machinery, contained
in the buildings, described in the policy,
and privileged for a printing office,
bindery, and book store, and steam
boiler in the yard." The Jury found
that when the policy was effected, the
use of camphene for fine work in the
printing of books, was a general and
established usage among printers, and
that its use for this purpose was not
only more advantageous than that of
any other article, but was necessary.
The 8th condition, annexed to the po-
licy, provided among other things, that
the Company should not be liable for a
loss by fire," occasioned by camphene
or other inflammable liquid." The loss
claimed, in the opinion of the Court,
was not "occasioned by camphene,"
in the true meaning of the exception.
Harper v. The City Insurance Co. 520

A request by the defendant to the
plaintiff, to attend, as physician and
surgeon, upon a third person, and a
promise by the defendant to the plain-
tiff that, if he will so attend, the de-
fendant will pay therefor, and the be-
stowing of such attendance by the
plaintiff, upon such request, and rely-
ing solely upon such promise, render
the defendant liable to pay what such
attendance is reasonably worth. His
promise need not be in writing to be
obligatory. It is an original undertak-
ing. The fact that he was under no
obligation, prior to making such request
and promise, to furnish or procure such
attendance, does not make it essential
to the validity of such a promise, that
it be in writing. Hanford v. Hig-
gins.

441

at any time, give notice to the plaintiff,
that he will not be liable for attendance
or services subsequently rendered, and
on so doing, the plaintiff can make no
claim on him for services or attendance
subsequent to such notice.
id.

FRAUD.

Vide 159 and 281.

FRAUDS; STATUTE OF.

1. The payee and first endorser of a note,
cannot recover against the second en-
dorser, either in an action on the note
itself, or on the allegation and proof of
a verbal agreement, that the note was
endorsed by the second endorser to
accommodate the maker, and to secure
payment to the first endorser, of a loan
of money made to the maker on the
security of such endorsement, and on
the agreement of the second endorser
to pay the note at maturity, if the
maker did not. Hauck v. Hund. 431.

2. To allow a recovery in such a case
would violate the rule which prohibits
the clear legal import of a written con-
tract to be varied by parol, and would
violate the Statute of frauds, which de-
clares all agreements to answer for the

FREIGHT.

Vide ante, 177.

G

GUARANTY.

A guaranty, before the Code, was
assignable, so as to give an equitable
title to the assignee, although he could
not sue thereon in his own name; but,
under the Code, it is not merely assign-
able, but the action thereon must be
brought in the name of the assignee,
as the real party in interest. Small v.
Sloan.
352

There is no presumption and no rule
of law that can warrant a Court or jury
to infer, from the mere fact that the
body of an instrument or endorsement
is not in the hand-writing of the signer,
that it has been altered, or that it did

1. In an action, by a guest, against an
inn-keeper to charge him with the loss
of money or valuable articles, it is a
good defence, that actual notice had
been given to the plaintiff, that a safe
had been provided for the purpose men-
tioned in the act "to regulate the
liability of hotel-keepers," although no
notice, stating that fact, was posted, at
the time, in the room occupied by such
guest. The act, although not in terms
yet by a necessary implication, sanc-
tions the defence. Purvis v. Cole-

2.

3.

cies. Reinsured from November 30th,
1854, 12 o'clock, at noon, to the expira-
tion of the policy."

Held, that such agreement was a con-
tract of reinsurance, and that the plain-
tiffs could not sue upon it. That any
moneys recoverable under it, for a
breach of it, would be the property and
assets of the Company so reinsured.
That the plaintiff's had no right to such
moneys, nor any lien upon them to
satisfy a loss under the policy issued to
them, notwithstanding the Company
which insured them had failed before
such loss occurred. That the word
"assured" in such agreement meant the
Company re-insured, and not the as-
sured in the original policies, and that
it could not be shown by paro! that it
was the understanding between the
defendant and such agent at the time
the agreement was executed that the
word, "assured," as used therein, was
intended to apply to, and designate the
persons insured by the original policies.
Carrington et al v. Com. Fire and
Marine Ins. Co. Jersey City.

152

Although the maxim that
แ causa
proxima non remota spectatur," is the
rule that governs the liability of In-
surers, yet in its application, the words,
"proximate cause,' are not to be un-
derstood in their strict and limited
sense, as meaning only the cause that
immediately precedes and directly oc-
casions a loss. Tilton v. The Hamilton
Fire Ins. Co.
367

1. The American Mutual Insurance Com-
pany of Amsterdam, having insured the
plaintiffs against loss or damage by fire,
and having issued some nineteen other
policies insuring the like number of 5.
other persons or firms; its agent, while
such policies were in force, entered
into an agreement with the defendants,
The Commercial Fire and Marine In-
surance Company, of Jersey City, by
which agreement the latter "reinsure
the American Mutual Insurance Com-
pany of Amsterdam, upon the follow-
ing policies issued by them," (specify-
ing the said twenty policies,) "loss, if
any, payable to the assured upon the
same terms and conditions, and at same
time, as contained in the original poli-

id.

substantial agreement between the
statements and the testimony, and that
the latter was rather explanatory than
contradictory, and that the necessary
result of both was that, the plaintiff, if
not the legal, was the equitable owner
of all the property insured.

Held, therefore, that the property, on
which the loss was claimed, and which
was a stock of goods, in a certain store,
was properly described in the policy as
"his (i. e. the plaintiff's) stock," there
being no other goods in the store to
which the description could be ap-
plied.
id.