At pages 210 and 211 Lord Chancellor Westbury said: "It is quite true that a deed which professes to convey property which is not in existence at the time is as a conveyance void at law, simply because there is nothing to convey. So in equity, a contract which engages to transfer property which is not in existence can not operate as an immediate alienation, merely because there is nothing to transfer. But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel him to perform the contract, and that the contract would, in equity, transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired. This, of course, assumes that the supposed contract is one of that class of which court of equity would decree the specific performance. If it be so, then immediately on the acquisition of the property described the vender or mortgagor would hold it in trust for the purchaser or mortgagee according to the terms of the contract. For if a contract be in other respects good and fit to be performed, and the consideration has been received, incapacity to perform it at the time of its execution will be no answer when the means of doing so are afterwards obtained." Although the rule laid down in Mitchell v. Winslow and Holroyd v. Marshall is the English, and may also be considered as the American doctrine, yet there are a few equity cases following the rule at law. The principal case may be considered as the leading case among this class. But it, although never overruled, has been materially weakened by the recent case of Brett v. Carter, 2 Low. 458, in the United States district court for Massachusetts. In it, Lowell, J., speaking of the principal case, said: "Considering the decision by Judge Story in this circuit, and the reasons given by the court of Massachusetts for not following it, and the entire consistency of all the recent decisions with Judge Story's views, and the disappearance of Baron Parke's dictum, I am not prepared to say that if the supreme judicial court were now asked to review their decision in Moody v. Wright, it is at all certain they would reverse it; and under the circumstances I do not feel bound to hold that that case furnishes a settled rule of property which I must follow. So far from that, I believe that the law of Massachusetts in equity is, that a mortgage of after-acquired chattels is valid." As following the principal case, see Chynoweth v. Tenney, 10 Wis. 397; Hunter v. Bosworth, 43 Id. 583. All kinds of chattels to be acquired in the future may be mortgaged in equity: Jones on Chattel Mort., sec. 174. Thus the earnings of a vessel for a voyage not yet undertaken: Curtis v. Auber, 1 Jac. & W. 526; Langton v. Horton, 1 Hare, 549; In re Ship Warre, 8 Price, 256. Or the freight generally to be earned, without specifying any particular voyage: Douglass v. Russell, 4 Sim. 524; Leslie v. Guthrie, 1 Bing. (N. C.) 697; Lindsay v. Gibbs, 22 Beav. 522. So a reservation by a lessor of a hotel of a lien upon furniture afterwards to be put in it: Wright v. Bircher, б Mo. App. 322. It is essential that the after-acquired chattels intended to be covered by the mortgage should be definitely pointed out, in order that they may be distinguished from other chattels of the same kind: Brett v. Carter, 2 Low. 461. HART ET AL. v. WESTERN R. R. Co. [13 METCALF, 99.] WHERE SPARKS FROM RAILROAD COMPANY'S LOCOMOTIVE SET FIRE TO SHOP, and from the shop the fire spreads across a street to a dwellinghouse, the owner of such house can recover from the railroad company his loss, under a statute making it liable for an injury done "by fire communicated by its locomotive engine." INSURANCE COMPANY PAYING A Loss caused by sparks from a railroad company's locomotive, and for which the company is responsible, may recover from the railroad company such loss in the name of their assured, and a release executed by such assured to the railroad company is no bar to such action by the insurance company. TRESPASS on the case, founded on statute of 1840, c. 85, for loss caused by burning of plaintiff's dwelling-house. The following facts were agreed upon, viz.: That a carpenter shop was destroyed by fire communicated by the locomotive engine of defendants; that a high wind wafted the sparks from the shop, while burning, over a street sixty feet wide to plaintiffs' dwelling-house, and set it on fire; that plaintiffs were insured by the Springfield Mutual Fire Insurance Company, who requested plaintiffs to commence suit against defendants to compel payment of plaintiffs' loss, offering to indemnify plaintiffs from costs, and to save them harmless in reference to said suit; that plaintiffs refused, and demanded payment of their loss from said insurance company, which paid it, first notifying defendants that they did not release them from any claim they themselves or plaintiffs might have against them for said loss; that the insurance company then commenced suit in plaintiffs' name; that afterwards plaintiffs executed a written instrument declaring that they had received payment of their loss of the insurance company, and that they had no claim against defendants, and did not authorize the suit nor wish to have it prosecuted. It was further agreed that if receiving payment from the insurance company by plaintiffs was an equitable assignment to it of their claim against defendants, the release was in fraud of their rights, and defendants are liable for the loss. Otherwise plaintiffs are to be nonsuit. J. Willard and R. A. Chapman, for the plaintiffs. By Court, SHAW, C. J. This is an action of first impression, and is, we believe, the first brought upon the statute of 1840, c. 85, involving the present question. The action is brought, in fact, by the Springfield Mutual Fire Insurance Company, for their own benefit, in the name of the present plaintiffs, under the circumstances mentioned in the agreed statement of facts, on which the case was submitted to our decision. 1. The first question in order, it appears to us, is, whether upon the facts stated, the defendants were liable to anybody, and for any loss, by force of statute of 1840, c. 85; the defendants insisting that the case is not within the statute. The statute provides, sec. 1, that "when any injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said railroad corporation shall be held responsible, in damages, to the person or corporation so injured." It is contended that the plaintiff's building was not burnt ly fire communicated by a locomotive engine, within the meaning of the statute. And the case certainly presents a question of great importance, and of great difficulty. On the one hand, if the word "communicated" is used in the broad sense in which, without force or violence done to the language, it may be, to include all burnings, when a fire is communicated by the engine directly to one building, and thence by natural and ordinary means extending to others, without the intervention of any other means, the effect would be to charge the railroad company with damages to an unlimited amount, when a fire, thus originating in a village or city, has spread into a wide conflagration. The argument is earnestly urged, that the legislature could not have intended to impose a responsibility so serious and alarming; and it is insisted that the term "communicated" will bear, and ought to receive, a construction more limited, so as to restrain the operation of the statute to the case where the very particles of fire which fall upon, and kindle the flame in, the building burnt, must have emanated from the engine itself, without the intervention of any other object. If so restricted a sense as the latter had been intended by the legislature, it seems strange that they did not add some qualifying word, as "immediately" or "directly," to the word "communicated." Perhaps some light may be derived from a subsequent clause in the same section of the statute, which provides, that "any railroad corporation shall have an insurable interest in the property for which it may be so held responsible, in damages, along its route, and may procure insurance thereon in its own behalf." These latter words, we think, describe buildings being near and adjacent to the route of the railroad, so as to be exposed to the danger of fire from engines, but without limiting or defining any distance. In this view of the statute, it seems difficult to lay down any general rule. From the language made use of, we can not think it was intended to limit its operation to the very first building which might be touched with a spark or other fire from the engine, and not extend it to another building, contiguous though it may be, but belonging to another owner, which must necessarily burn with it. In the present case, the fire was transmitted, by ordinary and natural means, from the shop first touched by sparks from the engine, to the plaintiffs' dwelling-house, immediately across & street not very wide. The building burnt was, then, near the route of the railway. Under these circumstances, the court are of opinion, that the plaintiffs' house was injured by fire communicated by the locomotive engine of the defendants, within the true meaning of this statute; and that they are thereby held responsible in damages, to the plaintiffs, the persons injured. 2. The next question is, whether the insurance company, having, pursuant to their contract of indemnity, paid the loss to the plaintiffs, are entitled to maintain this suit in the plaintiffs' name, but for their own benefit, to recover the damages to which the defendants are liable by the statute. We consider this to be a statute purely remedial, and not penal. Railroad companies acquire large profits by their business. But their business is of such a nature as necessarily to expose the property of others to danger; and yet, on account of the great accommodation and advantage to the public, companies are authorized by law to maintain them, dangerous though they are, and so they can not be regarded as a nuisance. The manifest intent and design of this statute, we think, and its legal effect, are, upon the considerations stated, to afford some indemnity against this risk to those who are exposed to it, and to throw the responsibility upon those who are thus authorized to use a somewhat dangerous apparatus, and who realize a profit from it. This indemnity, provided by law against a special risk, may be considered as a quality annexed to the estate itself, and passing with it to any and all persons who may stand in the relation of owners, however divided and distributed such ownership may be. The effect of the statute is, to diminish the specific risk to which such buildings may be exposed, from their proximity to the railroad, and in this respect to put them upon an equality with other risks. Now, when the owner, who prima facie stands to the whole AM. DEC. VOL. XLVI-46 risk, and suffers the whole loss, has engaged another person to be at that particular risk for him, in whole or in part, the owner and the insurer are, in respect to that ownership and the risk incident to it, in effect one person, having together the beneficial right to an indemnity provided by law for those who sustain a loss by that particular cause. If, therefore, the owner demands and receives payment of that very loss from the insurer, as he may, by virtue of his contract, there is a manifest equity in transferring the right to indemnity, which he holds for the common benefit, to the assurer. It is one and the same loss, for which he has a claim of indemnity, and he can equitably receive but one satisfaction. So that, if the assured first applies to the railroad company, and receives the damages provided, it diminishes his loss pro tanto, by a deduction from, and growing out of, a legal provision attached to, and intrinsic in, the subject insured. The liability of the railroad company is, in legal effect, first and principal, and that of the insurer secondary; not in order of time, but in order of ultimate liability. The assured may first apply to whichever of these parties he pleases; to the railroad company, by his right at law, or to the insurance company, in virtue of his contract. But if he first applies to the railroad company, who pay him, he thereby diminishes his loss, by the application of a sum arising out of the subject of the insurance, to wit, the building insured, and his claim is for the balance. And it follows, as a necessary consequence, that if he first applies to the insurer, and receives his whole loss, he holds the claim against the railroad company in trust for the insurers. Where such an equity exists, the party holding the legal right is conscientiously bound to make an assignment, in equity, to the person entitled to the benefit; and if he fails to do so, the cestui que trust may sue in the name of the trustee, and his equitable interest will be protected. But we think this position is exceedingly well sustained by authorities. A case very much in point, in principle, is that of Mason v. Sainsbury, first reported as a manuscript case, in Marsh. on Ins., 1st Am. ed., 691, and since in 3 Doug. 61. It was an action against the hundred, brought on the riot act, to recover damage sustained by the plaintiff in the riots of 1780. The plaintiff had an insurance on which he had recovered, the insurance office having paid him without suit; and this action was brought in the name of the plaintiff, with his consent, for the benefit of the insurance company. It was decided by Lord Mansfield, and the whole court, that the plaintiffs were entitled |