B. & S. 782. Where the production of the certificate as to the loss by some person or official named is required, it is no excuse that he capriciously refuses to give it. Worsley v. Wood, 6 T. R. 710; Cornell v. Hope Ins. Co., 15 Mart. (La.) 223; Roumage v. Mechanics' Ins. Co., 13 N. J. 110; Noonan v. Hartford Ins. Co., 21 Mo. 81; Leadbetter v. Etna Ins. Co., 13 Me. 265; Johnson v. Phoenix Ins. Co., 112 Mass. 49; 17 Am. Rep. 65. Where the certificate required is that of the nearest magistrate, the court will construe it liberally, and not hear nice measurements. Turley v. N. A. Ins. Co., 25 Wend. (N. Y.) 374. Where there were two nearer, but they were creditors of the insured, it was held proper to go to a third. Taylor v. Roger Williams Ins. Co., 51 N. H. 50; Wright v. Hartford Ins. Co., 36 Wis. 522. A mere notice that such certificate will be required is not enough to make it obligatory. Taylor v. Ætna Ins. Co., 13 Gray (Mass.), 434.

If the papers offered to them are defective, they must call attention to the defect and insist upon it, and require farther information. Charleston Ins. Co. v. Neve, 2 McMullen (S. C.), 237; Patterson v. Triumph Ins. Co., 64 Me. 500; State Ins. Co. v. Maackens, 38 N. J. L. 564; Imperial Ins. Co. v. Murray, 73 Penn. St. 13; Killips v. Putnam Ins. Co., 28 Wis. 472; 9 Am. Rep. 506; Lycoming Ins. Co. v. Dunmore, 75 Ill. 14. All information which the insurers gain by going into an investigation after having received imperfect proofs, inures to the benefit of the insured, so far as it supplies any deficiency. Sexton v. Montgomery Ins. Co., 9 Barb. (N. Y.) 191; Maher v. Hibernia Ins. Co., 67 N. Y. (22 Sick.) 283. If they make no inquiry for proofs, but make a general investigation of the matter for themselves, it is a waiver. West Rockingham Ins. Co. v. Sheets, 26 Gratt. (Va.) 854.

Phil

The insurers are estopped to rely upon any fault which they have contributed to produce, as by refusing to allow the insured to see the proofs which they had furnished, he desiring to perfect them. Cornell v. LeRoy, 9 Wend. (N. Y.) 163. Where the insurers point out certain defects, they cannot afterward object to others not then named. lips v. Protection Ins. Co., 14 Mo. 220. A waiver is not established by proof that an agent said it would be all right (Boyle v. N. C. Ins. Co., 7 Jones' L. [N. C.] 373), or that an officer, in reply to a question what further proofs were required, answered that the policy would show (Spring Garden Ins. Co. v. Evans, 9 Md. 1), or an officer's statement that the company would be disposed to do what was right in answer to an excuse for failure to give notice. Smith v. Haverhill Ins. Co., 1 Allen (Mass.), 297. The extent of the waiver will be determined by the particular facts of the case, but an express waiver of notice is not a waiver of the preliminary proof, or the particular acVOL. IV.-11

count required by the policy when they are treated as separate acts. Desilver v. State Ins. Co., 38 Penn. St. 130. If evidence is offered that the notice and preliminary proofs were delivered to the insurer and no objection was made to them, it is enough without proof of their contents (Hincken v. Mutual Benefit Ins. Co., 50 N.Y. [5 Sick.] 657); even where the contract provides that any waiver shall be in writing on the policy, this was held not to prevent an estoppel on the insurers from a failure to object when good faith required it. Blake v. Exchange Ins. Co., 12 Gray (Mass.), 265. Where the policy requires a particular account, its nature must depend upon the circumstances of the loss and the character of the property. It is an account of the particulars of the nature, quality and quantity of the effects, and of the damage sustained in order to aid the insurers to form a judgment as to the amount of the loss, and also of the cause of the loss. Catlin v. Springfield Ins. Co., 1 Sumn. (C. C.) 434. Where the insurers may make a personal inspection so much particularity is not required. Haff v. Mar. Ins. Co., 4 Johns. (N. Y.) 132. The fact of loss within the risk, the subject-matter and the amount of injury sustained, are all that it is necessary to state. It is not necessary to state the interest of the insured unless specially required. Gilbert v. North American Ins. Co., 23 Wend. (N. Y.) 43; Miller v. Eagle Ins. Co., 2 E. D. Smith (N. Y.), 268. Where the party from loss of books and papers or other causes is unable to give more than a general statement of the aggregate value of the property lost, he is excused. McLaughlin v. Washington County Ins. Co., 23 Wend. (N. Y.) 525; Norton v. Rensselaer and Saratoga Ins. Co., 7 Cow. (N. Y.) 645; Bumstead v. Dividend Ins. Co., 12 N. Y. 81; Hoffman v. Ætna Ins. Co., 1 Robt. (N. Y.) 501; S. C., 32 N. Y. (5 Tiff.) 405. But it must state the amount of loss and that it is on the goods insured. Lycoming Ins. Co. v. Updegraff, 40 Penn. St. 311. Where the notice is required to state the value of the parts re. maining, it is enough to state a total loss, where only stone and brick of a small value remain and the insurance does not cover the real loss. Wyman v. People's Equity Ins. Co., 1 Allen (Mass.), 301. Where it is provided that the insured shall produce his books and papers, he must bring forward all that he has (O'Brien v. Commercial Ins. Co., 63 N. Y. [18 Sick.] 108; Jube v. Brooklyn Ins. Co., 28 Barb. [N. Y.] 412), but he is excused by their loss in the fire. Mechanics' Ins. Co. v. Nichols, 16 N. J. 410. He may correct the statement before suit, and such correction will not be evidence of fraud. Jones v. Mechanics' Ins. Co., 36 N. J. 19; 13 Am. Rep. 405. Error or even some degree of over estimate is not fraud, but a statement known to be false and unjust is fraud. Chapman v. Pole, 22 L. T. (N. S.) 306; Ins. Co. of N. A. v. Mc

Dowell, 50 Ill. 120; Ins. Co. v. Weides, 14 Wall. (U. S.) 375; Planters' Ins. Co. v. Deford, 38 Md. 382. Where it is provided that fraud or falseswearing in the proofs shall prevent recovery, it must be intentional and in regard to some material matter. Moadinger v. Mechanics' Ins. Co., 2 Hall (N. Y.), 490; Marion v. Great Republic Ins. Co., 35 Mo. 148; Franklin Ins. Co. v. Updegraff, 43 Penn. St. 350; Park v. Phonix Ins. Co., 19 Up. Can.; Button v. Royal Ins. Co., 4 F. & F. 905; Clark v. Phoenix Ins. Co., 36 Cal. 168; Maher v. Hibernia Ins. Co., 67 N. Y. (22 Sick.) 283. A difference between the estimate of the insured and the amount found by a jury, even if considerable, will not sustain the defense of false swearing, although it may be some evidence on the point. Franklin Ins. Co. v. Culber, 6 Ind. 137; Moore v. Prot. Ins. Co., 29 Me. 97; Marchesseau v. Merchants' Ins. Co., 1 Robt. (La.) 438; Israel v. Teutonia Ins. Co., 28 La. Ann. 689; contra, Levy v. Baillie, 7 Bing. 349; Wall v. Howard Ins. Co., 51 Me. 32. If the proofs disclose a defense, the insured is bound by it unless he amends. Campbell v. Charter Oak Ins. Co., 10 Allen (Mass.), 213; Irving v. Excelsior Ins. Co., 1 Bosw. (N. Y.) 507. If the payment is got by fraudulent proofs on which the insurer so far relied that they would not otherwise have paid the loss, the sum paid may be recovered back again. Hartford Ins. Co. v. Mathews, 102 Mass. 221. So, if the payment is in ignorance of some good defense. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Anderson v. Pitcher, 2 B. & P. 164; De Hahn v. Hartley, 1 T. R. 343; S. C., 2 id. 186. But a clear mistake must be established. Elting v. Scott, 2 Johns. (N. Y.) 157; Berkshire Ins. Co. v. Sturgis, 13 Gray (Mass.), 177. A mistake of law is not enough. Perry v. Newcastle Ins. Co., 8 U. C. Q. B. 363. A statement in the proofs that the premises were vacant may be explained by parol. Cummins v. Agricultural Ins. Co., 67 N. Y. (22 Sick.) 268. The insured must see that his proofs reach the insurer. Hodgkins v. Montgomery County Ins. Co., 34 Barb. (N. Y.) 213.

§ 3. To whom payable. The name of the insured does not always appear in the contract, as where the insurance is made for whom it may concern, or the description may be uncertain or ambiguous, as, for instance, an insurance payable to "the estate of A." In such case parol evidence is admitted to make clear who were really meant. Clinton v. Hope Ins. Co., 45 N. Y. (6 Hand) 454; Mathews v. Queen City Ins. Co., 2 Cinn. (Ohio) 109. Where the policy has been assigned, the loss is of course payable to the assignee, and he may sue in his own name, if the assignment has been assented to, otherwise in the name of the insured. Kingsley v. N. E. Ins. Co., 8 Cush. (Mass.) 393; Phillips v. Merrimack Ins. Co., 10 Cush. (Mass.) 350; contra, Jessel v. Wil

.

liamsburgh Ins. Co., 3 Hill (N. Y.), 88. If the policy is payable, in case of loss, to a third person, he may sue in his own name. Motley v. Manufs. Ins. Co., 29 Me. 337; Cone v. Niagara Ins. Co., 60 N. Y. (15 Sick.) 619; Hadley v. N. H. Ins. Co., 55 N. H. 110. But the insured may sue in his own name with the consent of the person to whom the policy is payable. Turner v. Quincy Ins. Co., 109 Mass. • 668; Patterson v. Triumph Ins. Co., 64 Me. 500; Illinois Ins. Co. v. Stanton, 57 Ill. 354; Martin v. Franklin Ins. Co., 38 N. J. 140; 20 Am. Rep. 372; St. Paul Ins. Co. v. Johnson, 77 Ill. 598. But one for whose benefit insurance is made cannot sue. Bailey v. N. E. Ins. Co., 114 Mass. 177; 19 Am. Rep. 329. Where there is an order indorsed on the policy and assented to by the company, the payee may sue in his own name. Barrett v. Union Ins. Co., 7 Cush. (Mass.) 175. In mutual companies, however, where the insured becomes a member of the company, the assignee cannot sue in his own name until he has taken the place of his assignor. Blanchard v. Atlantic Ins. Co., 33 N. H. 9; Mann v. Herkimer County Ins. Co., 4 Hill (N. Y.), 187. If the policy be in the name of the agent of several parties, it may be sued in his name. Barnes v. Mutual Ins. Co., 45 N. H. 21; Bridge v. Niagara Ins. Co., 1 Hall (N. Y.), 247. So, if issued to a broker for whom it may concern. Prot. Ins. Co. v. Wilson, 6 Ohio St. 553. An administrator has no interest in real estate insured, and cannot recover the insurance on a loss occurring after his appointment. Beach v. Bowery Ins. Co., 8 Abb. Pr. (N. Y.) 261; contra, Germania Ins. Co. v. Curran, 8 Kan. 9. Where a mortgagee insures his interest for his own benefit, the mortgagor cannot claim to have it applied on the debt (White v. Brown, 2 Cush. [Mass.] 412), but if the insurance is made by agreement with him and at his cost, he can. Concord Ins. Co. v. Woodbury, 45 Me. 447. Where the insurance is made by agreement between the mortgagor and the mortgagee, there is no subrogation of the insurance company on payment (Kernochan v. N. Y. Bowery Ins. Co., 17 N. Y. 428), even though the policy provides for an assignment of the mortgage to the insurers (Foster v. Van Reed, 5 Hun [N. Y.], 321), and so in case of an incomplete sale. Clinton v. Hope Ins. Co., 45 N. Y. 454. Where the mortgagee insures his own interest, he may recover, even after his debt has been paid. Norwich Ins. Co. v. Boomer, 52 Ill. 442; 4 Am. Rep. 618. The mortgagee has no interest in an insurance effected by the mortgagor. McDonald v. Black, 20 Ohio, 185: Columbia Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507; Mandegraaff v. Medlock, 3 Port. (Ala.) 389. If the insurance is in the name of the mortgagor, but payable to the mortgagee, it may be paid to the mortgagor after the mortgage is

satisfied. Ennis v. Harmony Ins. Co., 3 Bosw. (N. Y.) 516. The assignee of a vendor's interest in a contract for the sale of land, which provides for an insurance by the vendee, for the vendor, is equitably entitled to the money due from such insurance, and the insurer is bound after notice, although the policy forbids an assignment without the insurer's consent. Cromwell v. Brooklyn Ins. Co., 44 N. Y. (5 Hand) 42; 4 Am. Rep. 641. Where a tenant agrees to insure for the benefit of his landlord, the premises being divided, the landlord is entitled to the whole in case of loss. Hamilton v. Fleming, 9 Ct. Sess. Cas., 3rd ser. (Scotch) 329. The payment of the loss did not, at common law, give the insurer any right to claim damages from the person who caused the fire (London Ass. Co. v. Sainsbury, 3 Doug. 245), unless he owed them some duty. Rockingham Ins. Co. v. Bosher, 39 Me. 253; Conn. Ins. Co. v. N. Y. & N. H. R. R., 25 Conn. 265; Anthony v. Slaid, 11 Metc. (Mass.) 290. On the other hand, it is no defense to the person who caused the destruction of another's house by fire, that the owner has received full indemnity by the insurance. Hayward v. Cain, 105 Mass. 213; Harding v. Townshend, 43 Vt. 536; 5 Am. Rep. 304; Weber v. Morris & Essex Railroad, 35 N. J. 409; 10 Am. Rep. 253; Perrott v. Shearer, 17 Mich. 48; Collins v. N. Y. Central Railroad, 5 Hun (N. Y.), 503. But the insurers have a right of subrogation, under which they may use the name of the insured to recover from any person liable to him the amount they have been compelled to pay. Monmouth County Ins. Co. v. Hutchinson, 21 N. J. Eq. 107. If the insured sue the wrong-doer first and recover satisfaction from him, he loses any claim against the insurers. Mason v. Sainsbury, 3 Doug. 61. Thus, insurers may use the name of the insured to recover indemnity from a railroad company which set the fire, and the owner has no control over the action. Hart v. Western Railroad, 13 Metc. (Mass.) 99; Hall v. N. & C. R. R., 13 Wall. (U. S.) 367; Gales v. Hailman, 11 Penn. St. 515; Peoria Ins. Co. v. Frost, 37 Ill. 333. There must be full payment before the right arises. People's Ins. Co. v. Strachle, 2 Cinn. (Ohio) 186; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 338; Kyner v. Kyner, 6 Watts (Penn.), 221. The insured cannot release the wrong-doer so as to bar the insurer of his right. Hart v. Western Railroad, 13 Metc. (Mass.) 99. This right only exists in favor of those who have a relation of contract with the party suffering the loss. A stranger cannot gain the right, nor does he diminish the liability by satisfying the loss to the insured. People's Ins. Co. v. Strachle, 2 Cinn. (Ohio) 186. Unless the insured is affected by some arrangement with the mortgagor, the insurer, who has paid the loss to the mortgagee, cannot claim an assignment. Suffolk Ins.