the making of the said policy, and during the said risk, and at the time of the death of the said T. B., was interested in the life of the said T. B. to the full amount insured thereon as aforesaid, (a) and that during the said risk and whilst the said policy remained in force the said T. B. died; and all conditions precedent have been performed, and all things and events have existed and can Mut. Life Ins. Co. supra, but substantially agrees with Life Ins. Co. v. Terry, 15 Wallace, 580; Fowler v. Mutual &c. Ins. Co. 4 Lansing, 202. In the late case of Cooper r. Massachusetts Mut. Life Ins. Co. 102 Mass. 227, which was an action on a policy of insurance on the life of a person who voluntarily killed himself, it was provided in the policy that it should be void if the assured should "die by suicide." The plaintiff, "in order to take the case out of the proviso," offered to prove that "the assured at the time of committing the act of self-destruction was insane, that he acted under the influence and impulse of insanity, and that his act of self-destruction was the direct result of insanity," but the judge ruled that such proof would not entitle the plaintiff to recover, and directed a verdict for the defendants. This ruling was sustained. Chapman C. J. having noticed the above cases, said: " Upon a careful consideration of the elaborate discussion of the matter, in the cases above cited, by the dissenting judges as well as by those in the majority, we think that, as applied to this case, there is no sub stantial difference of signification between the phrases shall die by his own hand,' 'shall commit suicide,' and shall die by suicide,' and that they include self-destruction, under the influence of insanity, within the limitation above stated." See, also, White v. British Empire Mut. Life Ass. Co. L. R. 7 Eq. 394; Nimick v. Mut. Benefit Life Ins. Co. 3 Brewster, 302; S. C. 3 Pittsb. (Pa.) 293; 10 Am. L. Reg. N. S. 102. But if no exception of suicide is made in the policy, it is not avoided by suicide committed by the party while insane; although felonious suicide would probably avoid such a policy on the ground of public policy. Horn v. Anglo-Australian & Univ. F. L. Ins. Co. 7 Jur. 673; 3 L. J. N. S. Ch. 511; 2 Bigelow, 602; Hartman v. Keystone Ins. Co. 21 Penn. St. 466; and the remark upon it by Hunt J. in Life Ins. Co. v. Terry, 15 Wallace, 586. As to policies on lives conditioned to be void, if the assured die in known violation of law, see Cluff v. Mut. Ben. Life Ins. Co. 13 Allen, 308; S. C. 99 Mass. 317; Overton v. St. Louis Mut. Life Ins. Co. 39 Missou. 122; Harper v. Phoenix Ins. Co. 19 Missou. 506; S. C. 18 Missou. 109; Bradley . Mut. Benefit Life Ins. Co. 45 N. Y. 422.] (a) Shilling v. Accidental Death Ins. Co. 2 H. & N. 42; and ante, 172, note (z). By the statute 14 Geo. 3, c. 48, s. 1, no insurance shall be made on the life of any person, or on any other event wherein the person for whose use or benefit or on whose account such policy shall be made, shall have no interest, or by way of gaming or wagering. And by s. 2, the name of the person inter ested therein, or for whose use or benefit or on whose account it is made, must be inserted therein. Hodson v. Observer Life Assurance Society, 8 El. & Bl. 40; every one has an insurable interest in his own life; Wainewright v. Bland, 1 M. & Rob. 481; [Campbell v. New England Mut. Life Ins. Co. 98 Mass. 381; Provident Life Ins. & Fire Co. v. Baum, 29 Ind. 236;] so has a wife in her husband's life; Reed v. Royal Exchange Assurance Co. Peake's Add. Ca. 70; [Thompson v. American Tontine L. & S. Ins. Co. 46 N. Y. 674; Baker v. Union Mut. Life Ins. Co. 43 N. Y. 283;] a husband in his wife's; Huckman v. Fernie, 3 M. & W. 505; [see Wight v. Brown, 11 Ct. of Sess. 2d Sess. 459;] and a creditor in his debtor's life. Anderson v. Edie, Park Ins. 640; [Morrell v. Trenton Mut. Life & Fire Ins. Co. 10 Cush. 282.] Except in the above cases, an insurer's interest must be pecuniary; Halford v. Kymer, 10 B. & C. 724; and the insurer can only recover to the amount or value of his interest. 14 Geo. 3, c. 48, s. 3. [Some of the cases go to sustain the proposition that one person has an insurable interest in the life of another, whenever there is a reasonable possibility that he will gain by the continued life of the latter, or will lose by his death. Miller v. Eagle Life & H. Ins. Co. 2 E. D. Smith, 268, 294; Hoyt v. N. Y. Life Ins. Co. 3 Bosw. 440.] The interest of a creditor insuring his debtor's life must exist at the time of making the policy, and the fact that it afterwards ceases or is satisfied aliunde, does not vitiate the policy or prevent the creditor from recovering the amount of his interest at the time when he effected the policy. Dalby v. India & London Assurance Co. 15 C. B. 365; 24 L. J. C. P. 2. In this respect a policy is not in the nature of an indemnity. [If the insured had an interest at the time the policy was issued, it is not necessary that he should have one at the time of the death. See Hebdon r. West, 3 B. & S. 579, 581; Rawle v. American Mut. Life Ins. Co. 27 N. Y. 282; Mowry &. Home Ins. Co. 9 R. I. 346; Ins. Co. v. Bailey, 13 Wallace, 616, 619; Robert v. New Eng. Mut. Life Ins. Co. 2 Disney, 106; Loomis v. Eagle Life Ins. Co. 6 Gray, 396, 401; Law e. London Indisputable L. P. Co. 1 K. & J. 223. So it is not necessary that a bona fide assignee of a policy, valid in its origin, should have any interest in the life insured. Valton v. National L. F. L. Ass. Soc. 22 Barb. 9; S. C. 20 N. Y. 32; St. John v. American Mut. Life Ins. Co. 13 N. Y. 31] A policy of insurance on the lives of cattle is an insurance on lives within 55 Geo. 3, c. 184. Attorney Gen. v. Cleobury, 4 Ex. 65. [As to what is an insurable interest and amount recoverable, see, further, Hebden v. West, 32 L. J. Q. B. 85; 3 B. & S. 579.] happened, and all periods of time have elapsed, to entitle the plaintiff to payment of the said sum of £- -, and to maintain this action for the same; yet the plaintiff has not been paid or satisfied the said sum of £- or any part thereof, out of the capital stock and funds of the said company or otherwise, and the same is wholly due and in arrear and unsatisfied. [Add count for money had and received, and account stated, as ante, 34, 35.] And the plaintiff claims £ 2. Upon a Policy of Insurance on the Life of a Third Person against an Insurance Company, setting the Policy out verbatim. (b) For that by a policy of insurance made by the defendants [or "signed by of the directors, and sealed with the common seal of the said company,” according to the mode of execution] it was agreed between the plaintiff and defendants as therein contained; and the said policy is in the words and figures following, that is to say [here set out the whole of the policy verbatim, with the conditions or such of them as are material; see ante, 168, 172-175]. And the plaintiff says that the person in the said policy called "A. B." and "the assured" was the plaintiff; and that the company called "The Company" were and are the defendants [aver the plaintiff's interest in the life and the death of the said the life insured, whilst the policy was in force, and the performance of all conditions precedent, and the non-payment of the sum assured, as in Form 1]. their 3. By Executors against an Insurance Company upon a Policy of Insurance under Seal effected by the Testator on his own Life. Commencement as ante, 13, Form 23.] For that the said company, by a policy of insurance under their common seal, dated [&c.], covenanted with the said O. P. (the testator), that they, the said company, or their successors, if corporate funds, property, and effects for the time being, including the amount of capital subscribed for, and not paid up, if any, after satisfying all prior claims and charges thereon, should be sufficient for the purpose, and if the current premium should have been paid, and the other regulations indorsed thereon should have been observed by the person entitled to the benefit of that assurance, would, within two calendar months next after satisfactory proof should have been made according to the rules, regulation, and practice of the said company for the time being, of the death of the said O. P., pay unto his executors or administrators the full sum of £- sterling, and all such other sums, if any, as the said company, by their directors, might have ordered to be added to such amount by way of bonus or otherwise, according to their practice for the time being: provided always, that that policy was made subject to the conditions and regulations thereon indorsed; and the said conditions and regulations indorsed upon the said policy were, amongst others, as follows: [here set out such of the conditions as amount to warranties, or exceptions to the defendants' liability, or relate to acts or events which are conditions precedent] and the said O. P. afterwards and during the said risk, and whilst the said policy was in force, departed this life; and that all the condi (b) See another form where the policy is set out verbatim, Pritchard v. Merchants' & Tradesmen's Mutual Life Insurance Society, 3 C. B. N. S. 622. [See Hodson v. tions and regulations indorsed upon the said policy were observed and performed, and all conditions have been fulfilled, and all events have happened and existed, and all periods of time have elapsed, to entitle the plaintiffs, as executors as aforesaid, to have the said sum of £- paid to them as executors as aforesaid; yet the said plaintiffs have not been paid the said sum of £- according to the said policy, and the same still remains wholly due and unpaid to them. And the plaintiffs, as executors as aforesaid, claim £———. [See Fowkes v. Manchester & London Life Assurance Ass. 3 B. & S. 917.] 4. By the Assignees of a Bankrupt upon a Policy effected by him upon his own Life. Cazenove v. The British Equitable Assurance Co. 6 C. B. N. S. 437; Jackson v. Forster, 1 El. & El. 463; ante, 173, note (z2). IV. ON POLICIES OF INSURANCE AGAINST DEATH OR INJURY BY ACCIDENT. OBS. See forms of declarations and law in the following cases: Hooper v. The Accidental Death Insurance Company, 29 L. J. Ex. 340; [5 H. & N. 546;] Trew. The Railway Passengers' Assurance Company, 5 H. & N. 211; 29 L. J. Ex. 218; as to what is accidental death, Shilling v. The Accidental Death Insurance Company, 2 H. & N. 42; 27 L. J. Ex. 16; Theobald v. The Railway Passengers' Assurance Co. 10 Ex. 45; Simpson v. The Accidental Death Insurance Co. 2 C. B. N. S. 257. [As to what is an accident, see Sinclair . Maritime &c. Co. 30 L. J. Q. B. 77.] An insurance against the death of a third person by accident is within the 14 Geo. 3, c. 48, s. 2, as to interest. Shilling v. The Accidental Death Insurance Co. 1 F. & F. 116, and supra. V. ON POLICIES OF INSURANCE AGAINST COMMERCIAL LOSSES. Bamberger v. The Commercial Credit Mutual Assurance Society, 15 C. B. 676; Solvency Mutual Guarantee Society v. York, 3 H. & N. 588. ON JUDGMENTS. OBS. An action of contract is maintainable upon judgments, although the transaction in its origin was wholly unconnected with any contract, the law implying, from the legal obligation, a contract or promise on defendant's part, to pay the sum recovered; 3 Bl. Com. 163; [1 Chitty Contr. (11th Am. ed.) 87, 88;] Russell v. Smyth, 9 M. & W. 810, 818; as upon judgments of the superior courts, or the inferior courts of record in this country; Read v. Pope, 1 Cr., M. & R. 302; Williams v. Jones, 13 M. & W. 628; 2 D. & L. 680; but an action is not maintainable in the superior courts on judgments of the modern county courts; Austin v. Mills, 9 Ex. 288; Berkley v. Elderkin, 1 El. & Bl. 805; or in such county courts on the judgments of the superior courts. 20 Vict. c. 108, s. 27. 19 & So an action lies upon the judgment of a foreign court; Walker v. Witter, Dougl. 1; Hall v. Odber, 11 East, 118; Smith v. Nicholls, 5 B. & C. 208; 7 Dowl. 283, S. C.; Meeus v. Thellusson, 8 Ex. 638; Reynolds v. Fenton, 3 C. B. 187; [1 Chitty Contr. (11th Am. ed.) 87, and note ();] unless it be contrary to natural justice, or to the law of the country in which the judg ment was given, or the country where the original contract was made; Becquet v. McCarthy, 2 B. & Ad. 951; Novelli v. Rossi, 2 B. & Ad. 737; Rei OBS. mers v. Druce, 23 Beav. 145; Barber v. Lamb, C. B. N. S. 95; 29 L. J. C. P. 234; Sheehy v. Professional Life Assurance Co. 3 C. B. N. S. 397; Cammell v. Sewell, 3 H. & N. 670; [Messina v. Petrococchino, L. R. 4 P. C. 144;] as upon an Irish judgment; Harris v. Saunders, 4 B. & C. 411; Sheehy r. Professional Life Assurance Co. supra; upon a Scotch decree for costs; Douglass v. Forrest, 4 Bing. 686; 1 M. & P. 663; Russell v. Smyth, 9 M. & W. 810; Cowan v. Braidwood, 1 M. & G. 882; Patrick v. Shedden, 2 El. & Bl. 14; Robertson v. Struth, 5 Q. B. 951; a colonial judgment or decree finding a sum certain due to the plaintiff as a balance on partnership accounts, and ordering payment thereof to the plaintiff; Henderson v. Henderson, 6 Q. B. 288; 2 Chit. Pl. 7th ed. 305; Henly v. Soper, 8 B. & C. 16; on the judg ment of a court baron; Dawson v. Gregory, 14 L. J. Q. B 286; on a decree of the high court of chancery for payment of a specific sum founded on equitable considerations only. Henderson v. Henderson, supra; Carpenter e. Thornton, 3 B. & Ald. 52; Henly v. Soper, 8 B. & C. 20. [It has, however, recently been held that it is no bar to an action on a judgment of a foreign court, in personam, that it appears on the face thereof, that the foreign tribunal has put a construction on an English contract, which was erroneous according to English law. Godard v. Gray, L. R. 6 Q. B. 139. See Houlditch v. Donegall, 2 Cl. & Fin. (Am. ed.) 470, note (2) and cases cited; Don v. Lippmann, 5 Cl. & Fin. (Am. ed.) 1, and note (4); 1 Chitty Contr. (11th Am. ed.) 87, note ().] An action is not generally maintainable on mere interlocutory orders or decrees of courts of law or equity: Carpenter v. Thornton, supra; Fry v. Malcolm, 4 Taunt. 705; Patrick v. Shedden, supra; Sheehy v. Professional Life Assurance Company, 2 C. B. N. S. 211, and supra; or upon a rule of court or upon a judge's order; Dent v. Basham, 9 Ex. 469; even though made by consent, and containing an undertaking on defendant's part to do some act; Hookpayton v. Bussell, 10 Ex. 24; The Thames Iron Works &c. Co. v. Patent Derrick Co. [1 Johns. & H. 93;] 29 L. J. Chanc. 714; but an action lies on the final order of the privy council for payment of the costs of an appeal. Hutchinson v. Gillespie, 11 Ex. 798. In an action on a judgment debt, the writ may be specially indorsed under Com. L. P. Act, 1852. s. 25, and final judgment signed if the defendant does not appear. Hodsoll v. Baxter, 28 L. J. Q. B. 61, Ex. Ch. [Verdict for plaintiff in action for personal injuries. Judgment signed after his death is regular. Common Law Procedure Act, 1852, s. 39. Kramer v. Waymark, L. R. 1 Ex. 241.] Costs. In an action upon a judgment recovered in any court in England or Ireland, the plaintiff is not entitled to costs, "unless the court in which such action on the judgment shall be brought, or some judge of the same court shall otherwise order." 43 Geo. 3, c. 46, s. 4. This does not apply to actions on judgments of nonsuit, &c. recovered by defendants. Bennet v. Neale, 14 East, 343. The plaintiff will not in general be allowed his costs if he might have issued execution or realized his judgment by other means. Wood v. Silleto, 1 Chit. Rep. 473; Hanmer v. White, 12 M. & W. 519; Mason v. Nicholls, 14 M. & W. 118. Aliter where defendant has acted vexatiously by pleading a false plea; Samuel v. Barker, 5 Taunt. 264; or the defendant has no goods, and the original judgment debt was under £20, so that the defendant could not be taken in execution. The application for an order for costs cannot be made at nisi prius; Jones v. Lake, 8 C. & P. 395; but must be made in the first instance to a judge at chambers, not to the court; Claridge v. Wilson, 26 L. J. Ex. 246; by summons, or rule nisi, supported by affidavit; Revell v. Wetherell, 3 C. B. 321; it ought not to be granted ex parte. Lomax v. Berry, 2 H. & N. 127. As to proceedings upon judgments by writ of revivor, see C. L. P. Act, 1852, s. 131, 132; post, Appendix. 1. On a Judgment of either of the Superior Courts at Westminster. Commencement as ante, 5. The venue must be laid in Middlesex. (c)] For (c) In actions on judgments of courts of tions on foreign judgments the venue may be record the venue is local and must be laid laid in any county. in the county where the record is; in ac day of, A. D. in the court of Q. B. that the plaintiff, on the [or "C. P." or "Ex. of Pleas"] at Westminster, by the consideration and judgment of the said court, recovered against the defendant the sum of £and £——— (d) for his costs of suit, whereof the defendant was convicted, (e) which judgment still remains in force unreversed and unsatisfied, and upon which the plaintiff hath not obtained any execution or satisfaction. And the plaintiff claims £. (ƒ) 2. On Judgments, &c. of Foreign or Colonial Courts, or Inferior Courts of Record. See forms of declarations in the several cases referred to in the Obs. supra. [3. Count on a Judgment of a French Court. day of A. D. That on the in the Empire of France, in a suit depending between the now plaintiff and defendant in the court of ——, being a court of the said empire duly holden, and having jurisdiction in that behalf, the plaintiff recovered against the defendant by the judgment of the said court, and according to the laws of said empire, the sum of francs, which is equivalent in money of the United States to $- and which the now defendant was by the said court adjudged and ordered to pay to the now plaintiff; and the said judgment is still in force and unsatisfied. Like counts. Vallée v. Dumergue, 4 Ex. 290; De Cossé Brissac v. Rathbone, 6 H. & N. 301. Count on a judgment obtained in a French tribunal of commerce by the repre sentative of the deceased drawer of a bill against the acceptor. Vanquelin v. Bouard, 15 C. B. N. S. 341. Count on a decree of the tribunal of commerce at Brussels. Reynolds v. Fenton, 3 C. B. 187; Meeus v. Thellusson, 8 Ex. 638. Count on a judgment of the supreme court of New York. Munroe v. Pilkinton, 2 B. & S. 11. That on the 4. Count on a Scotch Decree. day of A. D. in the sheriff's court of the county of in Scotland, in an action then depending in the said court at the suit of the now plaintiff against the now defendant, the plaintiff, by the judgment of the said court, then having lawful jurisdiction and authority in that behalf, recovered against the defendant the sum of £- -, for the debt due from the defendant to the plaintiff, for goods sold and delivered by the plaintiff to the defendant, with legal interest thereon at per cent. per annum, from the day of then last, until payment, and the sum of £— for costs of suit, which sums of money and interest the defendant was by the said court adjudged and ordered to pay to the plaintiff; and the said judgment is still in force and unsatisfied. (d) See Com. L. P. Act, 1852, s. 95. In an action on the judgment of an inferior court the declaration should allege that the cause of action arose within the jurisdiction of such court. Read v. Pope, 1 Čr., M. & R. 302; Williams v. Jones, 13 M. & W. 628. (e) An allegation of pro ut patet per recordam is not necessary. (ƒ) [A declaration, setting forth the recov ery by the plaintiff against the defendant of a judgment for a certain sum as damages and another certain sum as costs, which judgment remains in full force and not impaired, annulled, or satisfied, whereby an action hath accrued to the plaintiff to have and recover of the defendant the balance due thereon and interest, is sufficient on de murrer. O'Neal v. Kittredge, 3 Allen, 470. |