recover for a loss until he performs his agreement to assign. The subrogation clause, in such a case, is material, and there can be no recovery against the insurer for a loss until this condition precedent is fulfilled, although the mortgaged property is not worth the amount of the debt secured, less the amount the insured is liable to pay: Dick v. Franklin Fire Ins. Co., 10 Mo. App. 376. In Home Ins. Co. v. Marshall, 48 Kan. 235, where an insurance company obligated itself to pay a loss to the mortgagee, who assigned the notes, mortgage, and policy to another with the knowledge of the insurer, and where the company paid the amount of the policy to the assignee, and, instead of discharging the mortgage, took an assignment of the notes, mortgage, and policy to itself, it was held that such payment should be considered as a satisfaction pro tanto of the amount due on the notes and mortgage. An insurer who has paid a loss to a mortgagee is not, however, entitled to be subrogated to the mortgage debt while any part of it remains unpaid. In other words, the insurer is not entitled to subrogation if any part of the debt is unpaid, unless he tenders to the mortgagee the balance due: Phenix Ins. Co. v. First Nat. Bank, 85 Va. 765; 17 Am. St. Rep. 101. So, where the assured has an executory contract for the sale of mortgaged premises at the time of the loss, the insurance company, upon paying the loss, cannot be subrogated to the rights of the insured, pro tanto, under the contract of sale: Washington Fire Ins. Co. v. Kelly, 32 Md. 421; 3 Am. Rep. 149; and an insurer has been held not entitled by subrogation to an assignment of a mortgage under the following circumstances: An owner of lands, who held a policy of insurance on the buildings thereon, verbally agreed to sell the property to her two sons. One-half of the consideration was to be paid in cash, or its equivalent; thebala nce to be secured by a mortgage on the property; and it was further stipulated that, upon the execution of the conveyance, the vendees should have an assignment of the policy to them as owners, and reassign it to her as collateral security upon her mortgage. The deed was given by the vendor, and the mortgage was also signed and acknowledged by the vendees, and by the wife of one of them, but, the wife of the other not being present, the mortgage was left in the vendor's custody until the absent wife could be brought to sign it, when the balance of the purchase money was to be adjusted and the arrangement as to insurance completed. Before the parties again met, the buildings were burned while the vendor held both the mortgage and the policy of insurance. In an action by the insurance company it was held that, upon payment of the amount of the policy, it was not entitled, by subrogation, to an assignment of the mortgage: Nelson v. Bound Brook Mut. Fire Ins. Co., 43 N. J. Eq. 256; 3 Am. St. Rep. 308; reversing Bound Brook Mut. Fire Ins. Co. v. Nelson, 41 N. J. Eq. 485.

Carriers-Subrogation Clauses-Clauses in the Policy or Bills of Lading Defeating the Right to Subrogation.-An insurer of property, upon paying the loss, is entitled to subrogation to the right of the owner to recover from a carrier or bailee primarily liable for such loss: Deming v. Merchants' Cotton Press etc. Co., 90 Tenn. 306; Railway Co. v. Manchester Mills, 88 Tenn. 653; The Sidney, 23 Fed. Rep. 88. But the insurer's right to subrogation may be defeated by agreement or by the terms of the bill of lading. Thus, if the owner of cotton delivered to a compress company, as agent for a carrier, under an agreement that the compress company shall procure insurance thereon, has himself procured insurance, an advancement or loan by the insurer of the amount of its policy is a payment of the insurance, which will prevent a recovery by either the insurer or the owner for the failure of the

compress company to procure insurance, although such advancement or loan is made upon the express condition that it shall be repaid upon such recov ery, and though the insurance contract requires such loan to be made: Deming v. Merchants' Cotton Press etc. Co., 90 Tenn. 306. Again, while a common carrier may, by contract with the owners, secure to himself, in case of dam age or loss for which the carrier would be liable, the benefit of any insurance to be effected by the owner, the abandonment to the insurers against. marine perils of goods damaged during their transportation, under such a contract, does not give to the insurers any right of action against the carrier: Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173. Nor can the insurer successfully defend an action on its policy where its right of subrogation has been destroyed by conditions inserted in a bill of lading. Thus, where liquors were to be shipped, a policy was made "as per form attached." By the attached form the insurer's liability was limited to a certain sum, and the insured had the right, in case of loss, to collect such sum from the company and to release it from all liability. The body of the policy, however, contained a provision that any claim against the carrier for loss should be assigned to the insurer. There being a collision between these conditions and the subrogation clause in the body of the policy, it was held that the latter must give way, that the provisions of the attached form must prevail, and that it was no defense to an action on the policy that the shipper, by accepting a bill of lading giving to the carrier the benefit of all insurance on the goods, had destroyed the insurer's right of subrogation: St. Paul etc. Ins. Co. v. Kidd, 55 Fed. Rep. 238. Again, in another case, the plaintiffs shipped a cargo of leather, under a bill of lading giving to the carrier the full benefit of any insurance on the goods. They were injured through the negligence of the carrier's employees, and suit was brought upon a policy issued thereon by the defendant. The policy provided that, in case of loss, the defendant should be subrogated to plaintiffs' claims against the carriers, not exceeding the amount paid by said insurer, and that plaintiffs would make no agreement or do any act whereby this right of action against the carrier for losing or injuring the leather should be released or cut off. This provision in the bill of lading was held to cut off the rights of the insurer to be subrogated to the rights and remedies of the owner against the defaulting carrier, and to defeat a recovery by the plaintiffs upon the policy: Fayerweather v. Phenix Ins. Co., 118 N. Y. 324. This, of course, shows that the right, by way of subrogation, of an insurer, upon paying for a total loss of the goods insured, to recover over against the carrier, is only that right which the insured has. This proposition is also sustained by Wager v. Providence Ins. Co., 150 U. S. 99. Hence, if a bill of lading provides that the carrier, when liable for the loss, shall have the full benefit of any insurance that may have been effected upon the goods, such provision is valid as between the carrier and the shipper, and limits the insurer's right of subroga tion, upon paying the loss to the shipper, to recover over against the carrier: Wager v. Providence Ins. Co., 150 U. S. 99. As between a common carrier of goods and an underwriter upon them, the liability to the owner for their loss is primarily upon the carrier, while the liability of the insurer is only secondary: Wager v. Providence Ins. Co., 150 U. S. 99; The Sidney, 23 Fed. Rep. 88; Railway Co. v. Manchester Mills, 88 Tenn. 653; and, if the carrier is actually and in terms the party insured, the underwriter can have no right to recover over against the carrier, even if the amount of the policy has been paid by the insurance company to the owner on the order of the carrier: Wager v. Providence Ins. Co., 150 U. S. 99. The following cases further

illustrate the operation of clauses in the bill of lading to defeat the insurer's right of subrogation. While certain goods were in transit by railroad it was stipulated in an open policy of insurance upon them that the company should, in case of loss, be subrogated to all claims against the carrier. The goods were shipped under a bill of lading, which provided that, in case of loss resulting in any liability of the railroad company, it should have the benefit of any insurance which might have been effected on the goods. The goods covered by the policy were destroyed in a railroad collision, and, in an action by the insured against the insurance company, it was held that he could not recover, he having, by the bill of lading, defeated the right of subrogation against the carrier to which the insurance company was enti tled: Carstairs v. Mechanics' etc. Ins. Co., 18 Fed. Rep. 473. So, if it is stipulated in bills of lading that the carrier shall not be liable for loss by perils of navigation, and that, in case of loss for which the carrier shall be liable, he shall have the benefit of insurance effected by the insurers, and a loss occurs, the proximate cause of which is a peril of navigation, but the remote cause of which is the negligence of the carrier, and the insurer pays the loss to the shippers, he is not subrogated to their rights against the carrier, and can maintain no action against the latter: Phoenix Ins. Co. v. Erie etc. Transportation Co., 10 Biss. 18. In an action by an insurance com. pany for damages to property insured by it, and by reason of which insurance it is compelled to reimburse the insured, and to be subrogated to the latter's rights, it is no defense, in an action against the railroad company, that the insurance company has never complied with the state law relating to foreign insurance companies, the insurance company being entitled to be subrogated to the rights of the insured as to the injury to such property, notwithstanding the fact of such noncompliance: Phoenix Ins. Co. v. Penn sylvania R. R. Co., 134 Ind. 215.

PAYMENT VOLUNTEERS-RELEASE.-Before subrogation or substitution can be decreed, payment to the creditor must have been made. His demand must be satisfied so as to relieve him from trouble, expense, and risk. A mere tender of payment, accompanied with a demand for the assignment of the debt, is not sufficient; and the right to subrogation may be denied on account of the laches of the applicant: Forest Oil Company's Appeal, 118 Pa. St. 138; 4 Am. St. Rep. 584; Carter v. Neal, 24 Ga. 346; 71 Am. Dec. 136. It is also a general principle that a mere volunteer is not entitled to subrogation: Skinner v. Tirrell, 159 Mass. 474; 38 Am. St. Rep. 447; note to Ex parte Hardin, 27 Am. St. Rep. 830. The payment, therefore, by one of several insurers of more than his share of a loss, and his assignment of his right to contribution, cannot create any cause of action in favor of his assignee if each of the insurers agreed to pay only such proportion of the loss as the amount of insurance assumed by him bore to the whole amount for which insurance had been effected, because, in paying more than his share of the loss, the insurer was a mere volunteer: Hanover Fire Ins. Co. v. Brown, 77 Md. 64; 39 Am. St. Rep. 386. So, if the insurer, after payment of the dam. ages by the wrongdoer, voluntarily pays the policy he cannot maintain an action against the wrongdoer: Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; 29 Am. Rep. 171. Neither does the right to subrogation extend to rights of action or of indemnity released by the assured before the insurance is effected: Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213; and see subdivision of this note designated as "Carriers." If, in a suit by one for the use of another, the use plaintiff, under stress of suit by the nominal plaintiff, pays a fire loss resulting from the alleged negligence of the defendant

by which an explosion of natural gas occurred which set on fire and damaged the property of the nominal plaintiff, and the nominal plaintiff, in consider. ation of a certain sum, released the defendant from "all claims and demands of every kind arising out of the explosion," it being understood that the release did not "affect the claim of the property owners against insurance companies for loss occasioned by fire, and which claim the property owner shall be entitled to receive, in addition to and independently of the sum paid by the defendant," such release is no bar to an action by the use plaintiff to recover the amount of the fire damages from the defendant; and parol evidence is inadmissible for the purpose of proving that the intention of the parties was to bar a recovery for damages by fire as well as by explosion. The insurance company can, in such a case, maintain a suit in the name of the insured for the loss from fire paid by it. In other words, the insurer is subrogated to the rights of the insured: Fidelity etc. Trust Co. v. People's Natural Gas Co., 150 Pa. St. 8. While the insured could, in such a case, settle with and release the gas company from all claim for injuries not cov ered by the insurance, without prejudice to his right to recover from the insurers for the loss occasioned by the fire (Insurance Co. v. Fidelity etc. Co., 123 Pa. St. 523; 10 Am. St. Rep. 546), yet, if the policy contains a covenant that the insured will, on receiving payment of the policy, assign his cause of action to the insurers, the covenant of the insurers for payment of the loss by fire, being made dependent upon the covenant of the assured to assign the cause of action against the wrongdoer, performance by the insurers can. not be enforced without performance or an offer to perform by the insured: Niagara Fire Ins. Co. v. Fidelity etc. Co., 123 Pa. St. 516; 10 Am. St. Rep. 543, and note. In the absence, however, of such an express covenant by the insured, the refusal of the assignment of the cause of action, demanded by the insurer, in advance of the payment of the loss, would be no defense to a cause of action by the insured against the insurance company: Insurance Co. v. Fidelity etc. Co., 123 Pa. St. 523; 10 Am. St. Rep. 546; and the insurance company can, in such a case, maintain a suit in the name of the insured for the loss from fire paid by it, without an assignment of the claim, or formal order of subrogation, against the party whose negligence caused the fire: Fidelity etc. Trust Co. v. People's Natural Gas Co., 150 Pa. St. 8.

If the insured receives the damages from the wrongdoer before payment. by the insurer, the amount so received will be applied pro tanto in discharge of the policy; and if the wrongdoer pays the insured after payment by the insurer, with knowledge of that fact, it is a fraud upon the insurer, and he will not be protected from liability to the latter: Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; 29 Am. Rep. 171. In such a case the insurance company may, even without the consent of the insured, maintain an action at law, in his name, against the wrongdoer, to recover the amount paid on the policy. And a release by the insured to the wrongdoer being, under such circumstances, a fraud upon the insurance company, and void for that reason, it would be no defense to such action: Monmouth etc. Ins. Co. v. Hutchinson etc. R. R. Co., 21 N. J. Eq. 107. Where the insurance company has indemnified the insured the latter cannot legally release his cause of action against the wrongdoer, because the company is entitled to be subrogated to his rights: Hart v. Western R. R. Corp., 13 Met. 99; 46 Am. Dec. 719. Thus, if an insurance company issues a policy upon certain buildings for fifteen hundred dollars, which buildings are worth three thousand four hundred dollars, and are afterward destroyed by fire through the negligence of a railroad company, and the owner receives damages from the AM. ST. REP., VOL. XLIV. -47

railroad company in the sum of eighteen hundred dollars, and executes release of all claims and demands for the loss, the release containing a statement that the settlement is not intended to discharge the insurance company from any claim of the owner against it, but is intended simply as a full settlement with and discharge of the railroad company, and the insurance company afterward pays the amount of the insurance, and sues the railway company to recover the amount paid, the clause in the release as to the claim against the insurance company must be regarded as in the nature of a proviso or exception from the general purview of the release, limiting its effect to a release of the balance, retaining the claim against the insurance company and excepting its rights to a remedy over. Therefore, the release, as to the insurance company, is of no effect. It could not interpose it as a defense to an action upon the policy, and its right to subrogation is not affected thereby: Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; 29 Am. Rep. 171. If one who has sustained a loss by fire occasioned by the fault of a railroad company receives payment for such loss from an insurance company in which he was insured, and also a gross sum, in satisfaction of damages, from the railroad company, he holds so much of this sum as would be necessary to reimburse the insurance company, in trust for such company, which may recover the same by a suit in equity: Monmouth County etc. Ins. Co. v. Hutchinson, 21 N. J. Eq. 107.

Proper Parties Plaintiff.-In Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618, it is held that, if insured property is willfully and maliciously burned by a third person, no action can be maintained by the insurer, in his own name, and against the wrongdoer, for the money paid on the loss. And in Connecticut Mut. Life Ins. Co. v. New York etc. R. R. Co., 25 Conn. 265, 65 Am. Dec. 571, where the insurance company sought to recover the amount of a policy paid by it upon the death of the insured, whose death was alleged to have been caused by the negligence of the railroad company, it was held that the insurer could enforce its right of subrogation only in the name of the insured. But it is now quite well settled that, when an insurer has paid a loss to the insured, he may maintain an action in the name of the insured to obtain redress from the one respon sible for the loss: Wager v. Providence Ins. Co., 150 U. S. 99; The Planter, 2 Woods, 490; Hall v. Railroad Companies, 13 Wall. 367; Railway Co. v. Manchester Mills, 88 Tenn. 653; Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; 29 Am. Rep. 171; Hart v. Western R. R. Corp., 13 Met. 99; 46 Am. Dec. 719. If the insurer pays the insured the full value of the property destroyed, the insurer may maintain an action in his own name against the one responsible for the loss, because, by operation of law, the whole beneficial right to indemnity from the wrongdoer has been vested in the insurer: Norwich Union Fire Ins. Soc. v. Standard Oil Co., 59 Fed. Rep. 984. He is, therefore, under a statutory provision providing that "every action must be prosecuted in the name of the real party in interest," the real and only party in interest, and the proper party, under such a statute, to bring the suit: Marine Ins. Co. v. St. Louis etc. Ry. Co., 41 Fed. Rep. 643. The insurance company is also a proper party plaintiff where no other person has any right or interest in the claim: Connecticut Fire Ins. Co. v. Erie By. Co., 73 N. Y. 399; 29 Am. Rep. 171. An insurance company subrogated to the rights of the insured by paying a loss caused by the wrong of a third person cannot, however, maintain an action against the latter in its own name, if the loss exceeds the amount of the insurance paid. In such a case the action must be brought in the name of the insured, because the beneficial