generally, implied from the mere silence of the parties in relation to the compensation.

We should say, therefore, that the general rule of law is, that one acting in regard to insurance transactions by the request of another, acquired a right to compensation, as perfect as if he stipulated for pay and it were promised him. And that if he did the work well, or did it ill, or neglected to do it at all, his rights, and the rights of others in respect to him, would be much the same as if he were a common paid agent.

CHAPTER XV.

OF THE RIGHTS OF ACTION; AND OF EVIDENCE.

THE rights and the forms of action, and the laws of evidence are the same in relation to contracts of insurance, that they are in relation to other contracts, excepting so far as the peculiar nature of these contracts has caused some qualification of the general rules. As we cannot give here a treatise on pleading or on evidence, we shall state little more than those rules which appear to apply to contracts of insurance specifically.

It may be well to remark that the action, if the policy is not sealed, should be assumpsit; and if it be sealed, debt (as provided by English statutes) 2 or covenant; or in States where these forms of action are superseded, by the special declarations which take their place.

If a policy under seal by its terms expires within a given time, and contains a clause for its renewal on payment of an annual premium, and this is done and the renewal indorsed on

1 In Kennedy v. Baltimore Ins. Co., 3 Harris & J. 367, it was held that assumpsit would lie against a corporation for money had and received for the benefit of the insured.

2 See 2 Marsh. Ins. 693. If an action of debt is brought, the plaintiff may recover a less sum than that demanded in the writ, where an entire sum is demanded, and it is shown by the counts to consist of several distinct accounts, or where the precise sum demanded is diminished by extrinsic circumstances. Hughes v. Union Ins. Co., 8 Wheat. 294.

8 Smith v. Universal Ins. Co., 6 Wheat. 176; Sullivan v. Massachusetts Mut. F. Ins. Co., 2 Mass. 318; Stetson v. Massachusetts Mut. F. Ins. Co., 4 Mass. 330; Watson v. Ins. Co. of North America, 1 Binn. 47; Baltimore Ins. Co. v. Taylor, 3 Harris & J. 198. In New York, an early statute declared that policies executed in a certain way, though not under seal, should have the effect of policies under seal, and allowed the party to sue either in covenant, or on the case. Ferriss v. North American F. Ins. Co., 1 Hill, 71, 73.

the policy, it has been held that unless the indorsements are under seal, the insured cannot maintain an action of covenant on the policy.1

SECTION I.

WHO MAY BRING AN ACTION ON THE POLICY.

The insured, by name, can, of course, sue on the policy. But if A be insured "for whom it may concern," or if other language is used of similar meaning and effect, A may bring an action for the benefit of all concerned; 2 or the party insured under such a clause, without being named, may bring an action in his own name. It has usually been said, that this was true only of policies not under seal; and the technical rules of law would appear to confine it thus. But a recent case in England, seems to extend it to sealed policies, by reasoning which is certainly ingenious if not convincing. If A is insured "for B;' or if A is insured "the loss payable to B," it is still more obvious that B may sue in his own name.5 And the party in also bring the action in his own name.

interest may

1 Luciani v. American F. Ins. Co., 2 Whart. 167.

2 Davis v. Boardman, 12 Mass. 80; Ward v. Wood, 13 Mass. 539; Copeland v. Mercantile Ins. Co., 6 Pick. 198.

8 Finney v. Fairhaven Ins. Co., 5 Met. 192; Oliver v. Commercial Mut. Mar. Ins. Co., 2 Curtis, C. C. 277; Blanchard v. Waite, 28 Maine, 51; Ruan v. Gardner, 1 Wash. C. C. 145; Williams v. Ocean Ins. Co., 2 Met. 303. In Maryland Ins. Co. v. Graham, 3 Harris & J. 62, the policy declared that A B and C D for account of E F, do make insurance, and cause themselves and their, and every one of them to be insured. It was held that E F might bring a suit in his own name.

* Sunderland Marine Ins. Co. v. Kearney, 16 Q. B. 925. This proceeds on the ground that it is not necessary that a person's name be set forth, but that it is sufficient if he be sufficiently designated in the deed, and that when insurance is made in such a way that the interests of third persons are covered, the covenant is with them, as well as with the person whose name is mentioned. In this country the action is generally brought in the name of the person procuring the insurance, unless the others interested are specifically designated, and there are dicta in some of the authorities to the effect, that no action would lie except in the name of the party mentioned. See American Ins. Co. v. Insley, 7 Barr, 223; De Bollè v. Pennsylvania Ins. Co., 4

Whart. 68.

5 Motley v. Manufacturers' Ins. Co., 29 Me. 337.

In Farrow v. Commonwealth Ins. Co., 18 Pick. 53, the agents of the owners were

But no person can maintain an action on a policy, unless he has an actual interest in the subject-matter of the insurance, and also in the policy or contract. Thus, if a mortgagor is insured for his own benefit, the mortgagee cannot sue on that policy, either in his own name or in that of the mortgagor; at law or in equity.2 But if the mortgagor or his lessee makes the policy for the benefit of the mortgagee, the mortgagee may adopt it.3

It may be remarked, that if a mortgagee causes himself to be insured for his own benefit, he cannot charge the premium to the mortgagor, unless there be a bargain between them to that effect.1

If persons are jointly insured, they must sue jointly.5

But if the policy be in the name of two or more, but only one of them named has any interest in the subject-matter, and the policy is so worded as to cover his interest, he may sue alone. And if there be two insured in one policy, and a joint action is brought, it seems that the several and separate interest of each may be proved. If the suit is commenced in the name of the nominal assured, for the benefit of several persons, and one of them revokes the authority of the plaintiff to recover his interest,

insured, loss payable to the agents. The insurance was declared to be for the owners, and it was held that they could maintain an action in their own names, the agents having assented to it. In Williams v. Ocean Ins. Co., 2 Met. 303, A was insured for whom it concerned. It was stated on the back of the policy that the insurance attached for A, B, and C, each one third, payable to A. It was held that A, B, and C might join in an action on the policy. In Jackson v. Farmers' Mut. F. Ins. Co., 5 Gray, 52, A was insured for $1,200, “in case of loss payable to J. S., mortgagee, to amount of $400." It was held that if the mortgagee assented, the insured might sue in his own name, although the loss was less than $400.

1 See cases ante, p. 30, n. 1.

2 Columbia Ins. Co. v. Lawrence, 10 Pet. 507.

3 Motley v. Manufacturers' Ins. Co., 29 Maine, 337.

4 Saunders v. Frost, 5 Pick. 259.

5 Blanchard v. Dyer, 21 Maine, 111.

6 Marsh v. Robinson, 4 Esp. 98. The policy in this case was effected in the names of Elizabeth Marsh & Son. The action was brought in the name of the son, who averred that he was solely interested; and Le Blanc, J., was of the opinion "That this averment let in the plaintiff to prove a sole interest in himself, notwithstanding the policy bore the joint names of two."

7 M'Cormick v. Ferrier, Hayes & Jones, 12.

this 'does not affect the right of the insured to recover for the benefit of the other parties in interest.1

An assignee must, generally, bring a suit in the name of the assignor. But if there be a promise of the insurers to the assignee, he may bring the action in his own name.

And in

1 Copeland v. Mercantile Ins. Co., 6 Pick. 198.

2 Hobbs v. Memphis Ins. Co., 1 Sneed, 144; Jessel v. Williamsburgh Ins. Co., 3 Hill, 88. The policy in this latter case contained the usual clause, that the interest of the insured should not be assigned without the consent of the corporation. The insured assigned his interest with their consent, and the assignee sued in his own name. The court held that the action should have been brought in the name of the assignor, and the plaintiff was therefore nonsuited. But, in Louisiana, it seems that the assignees might maintain an action, in their own names, in such a case. Hermann v. Louisiana State Ins. Co., 7 La. 502.

3 The general principle of law is well settled that an assignment of a chose in action, with the consent of the debtor, gives the assignee the right to sue upon it in his own name. Currier v. Hodgdon, 3 N. H. 82; Morse v. Bellows, 7 id. 549, 565; Moar v. Wright, 1 Vt. 57; Bucklin v. Ward, 7 id. 195; Hodges v. Eastman, 12 id. 358; Smith v. Berry, 18 Maine, 122; Warren v. Wheeler, 21 id. 484; Barger v. Collins, 7 Harris & J. 213, 219; Thompson v. Emery, 7 Foster, 269. The same is true of the contract of insurance. Wiggin v. American Ins. Co., 18 Pick. 158; Wiggin v. Suffolk Ins. Co., id. 145; Wilson v. Hill, 3 Met. 66; Fogg v. Middlesex Mut. F. Ins. Co., 10 Cush. 337, 345; Phillips v. Merrimack Mut. Ins. Co., 10 Cush. 350; Flanagan v. Camden Mut. Ins. Co., 1 Dutch. 506. In Folsom v. Belknap Co. Mut. F. Ins. Co., 10 Foster, 231, it was said that if the charter or by-laws of a mutual company contain a provision that an assignee may become a member of the company, if the assignment is made and ratified, he may sue in his own name. But, in this case there being no such provision, it was held that, although the assignment had been agreed to, yet the action should have been brought in the name of the assignor. In Bodle v. Chenango Co. Mut. Ins. Co., 2 Comst. 53, A effected insurance in his own name, on certain goods, and then sold part of them to B, but did not transfer the policy. The defendants agreed that the insurance might stand. A loss having occurred, an action was brought in the names of both in a court of equity. Held that this was the proper and only form of relief, for an action at law would not lie in such a case in the names of both. If the act of incorporation allows the assignee to sue in his own name, if the subject has been transferred to him, he must aver that he became the purchaser, or assignee of the subject-matter insured, and a general averment that he became and was interested in the buildings insured, and that the insured transferred all his right, and interest in the policy to him is not sufficient. Granger v. Howard Ins. Co., 5 Wend. 200. And, in such a case, if A and B are insured jointly, and A sells out to B, it has been held that no action will lie in the names of A and B, for the assignee should sue in his own name. Ferriss v. North American F. Ins. Co., 1 Hill, 71; Mann v. Herkimer Co. Mut. Ins. Co., 4 Hill, 187; Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210; Howard v. Albany Ins. Co., 3 Denio, 301; Conover v. Mut. Ins. Co. of Albany, id. 254. In Tennessee, the action must be in the name of the assignors for the benefit of the assignee. Hobbs v. Memphis Ins. Co., 1 Sneed, 444.