SEC. 487. When the policy is under seal, which is seldom the case in this country, an action of debt' or covenant' should be brought thereon, and assumpsit will not lie,' and if assumpsit is brought upon a sealed policy, and a verdict for the plaintiff is rendered thereou, it will be arrested on motion,' but where, under Codes or Practice acts all distinctions between remedies upon specialties and simple contracts is abolished, assumpsit will lie upon a sealed policy. So if the policy is renewed by a receipt, not under seal, the character of the instrument is changed from a specialty to a simple contract, and assumpsit is the proper remedy. And upon all policies, not under seal, assumpsit is the proper form of action. It is held, however, that where a policy under seal contains a provision for its being kept in force for any future time, by payment of the premium, which is indorsed thereon, the instrument does not lose its character as a specialty, and the remedy is in debt or covenant. And it seems that an action of debt cannot be maintained upon a sealed policy, where the

'People's Ins. Co. v. Spencer, 53 Penn. St. 353; Sunderland, etc., Marine Ins. Co. v. Kearney, 16 Q. B. 925; Peoria Marine, etc., Ins. Co. v. Whitemill, 25 Ill. 466. Luciani v. American F. Ins. Co., 2 Whart. (Penn.) 167.

Marine Ins. Co. v. Young, 1 Cr. C. C. (U. S.) 332.

'Marine Ins. Co. v. Young, ante.

'Protection L. Ins. Co. v. Palmer, 81 Ill. 88.

Flannagan v. Camden, etc., Ins. Co., 25 N. J. 506; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Mutual Ins. Co. v. Deale, 18 Md. 26; Luciani v. American F. Ins. Co., 2 Whart. (Penn.) 167.

'Franklin F. Ins. Co. v. Massey, 33 Penn. St. 221.

insurer has the right to pay in money or rebuild. In such case, covenant is the proper remedy.' Where a person agrees to procure insurance for another, and fails to do so, or does it so negligently that the policy does not benefit the assured, an action on the case is the proper remedy.' Where a parol contract to insure, or of insurance, is entered into, and no policy is issued, an action of assumpsit upon the contract made is the proper remedy, and in such a case, the assured may recover the amount of his loss, not exceeding the sum agreed to be insured,' or he may resort to a court of equity, to compel the issue of a policy according to the terms of the contract, and the court will not only direct specific performance, by the issue of a policy, but will also compel the payment of a loss sustained under it. In an action upon a policy, the declaration or complaint must set forth the contract, substantially, a loss under it by the peril insured against, and must also aver performance, on the part of the assured, of all conditions precedent contained in the contract, and when the application is made a part of the policy, it must be set forth, or so much of it as is of the essence of the contract."

Who may sue.

SEC. 488. In the absence of a statute authorizing an assignee of a chose in action to bring suit thereon in his name, an action upon a policy, although upon its face made payable to a third person in case of loss, or assigned, with the consent of the assured, as collateral security, must be brought in the name of the assured,' and the rule is not changed by the fact that the policy is made payable to the assured "or his assigns." But when the property is sold, and the policy is assigned, with the consent of the insurer, knowing that the entire insurable interest is vested in the assignee, the assignment, and assent

'Flanagan v. Camden, etc., Ins. Co., 25 N. J. 506.

Wilkinson v. Caverdale, 1 Esp. 75.

'Angel v. Hartford Ins. Co., 59 N. Y. 171.

'See page 32 et seq. ante.

Bobbitt v. Liverpool, etc., Ins. Co., 66 N. C. 70.

Jessel v. Williamsburgh F. Ins. Co., 3 Hill (N. Y.) 88; Gourdan v. Ins. Co. of N. America, 3 Yeates (Penn.) 327; Bayles v. Hillsborough Ins. Co., 27 N. J. 163; Woodbury Savings Bank v. Charter Oak Ins. Co., 29 Conn. 374; Flynn v. N. American L. Ins. Co., 115 Mass. 449; Blanchard v. Atlantic Mut. Ins. Co.. 33 N. H. 9; Folsom v. Belknap, etc., Ins. Co., 30 id. 231; Conover v. Mutual Ins. Co., 1 N. Y. 296; Rollins v. Ins. Co., 26 N. H. 22; 3 Ben. F. I. C. 377; Conover v. Mutual Ins. Co., 1 N. Y. 290; 2 Ben. F. I. C. 677; Exchange Bank v. Rice, 107 Mass. 37.

'Beemer v. Anchor Ins. Co., 16 U. C. (Q. B.) 485; Orchard v. Etna Ins. Co., 5 U. C. (C. P.) 445.

thereto, is held to operate as a new contract with the assignee, and he may maintain an action thereon in his own name, and an action in the name of the assignor will not lie.' But when the assured conveys the property, and takes a mortgage back to secure the payment of the purchase money, and he assigns the policy to the purchaser, who re-assigns it to the assured, with the consent of the insurer, the assured may still sue thereon in his own name.' Where the policy is open, and payable "to whom it may concern," an action may be maintained in the name of any person, having an insurable interest in the property, whose interest and relation to the property is such that he can be said to have been within the contemplation of the parties, and the declaration must show such interest and relation; or the person interested may maintain an action in the name of the assured, for his benefit, and such is the better practice. Where a policy is taken out by an agent, in his own name, for his principal, the insurer being aware of the facts, the principal may sue in his own name, or in the name of the agent.

6

When a policy is issued to a carrier, he may maintain an action to recover the entire loss, he standing as trustee for the owner, for all the amount recovered in excess of his own interest.' In such cases, however, when the assured brings the action, he should set forth the interests in respect of which he sues, and it should also be shown, or at least appear, that he had authority to cover such interest. This may be done by proof of express authority, or an usage," or by the ratification of the act by the party in interest, at any time before judgment.' A policy under seal, although professedly made for the benefit of third

'Mann v. Herkimer, etc., Ins. Co., 4 Hill (N. Y.) 187; Summers v. U. S. Ins. Co., 13 La. An. 504.

'Kingsley v. N. E., etc., Ins. Co., 8 Cush. (Mass.) 393; Sanders v. Hillsborough, etc., Ins. Co., 44 N. H. 238.

'Fleming v. Ins. Co.. 12 Penn. St. 391; Anonymous, Skinner, 327; Waring v. Indemnity Ins. Co., 45 N. Y. 606; Williams v. Ocean Ins. Co., 2 Met. (Mass.) 203; Adrich v. Equitable Ins. Co., 1 A. & M. (U. S.) 272; Strahn v. Hartford Ins. Co., 33 Wis. 648.

4

Ilinois F. Ins. Co. v. Stanton, 57 Ill. 354; Protection Ins. Co. v. Wilson, 6 Ohio St. 553; Walsh v. Washington Ins. Co., 32 N. Y. 427; Waring v. Indemnity Ins. Co., 45 N. Y. 606; Sturm v. Atlantic Ins. Co., 6 J. & S. (N. Y.) 281.

Stillwell v. Staples, 19 N. Y. 401; Seamans v. Loring, 1 Mass. (U. S.) 127; Solmes v. Rutgers F. Ins. Co., 3 Keyes (N. Y.) 416; Mattey v. Manufacturer's Ins. Co., 29 Me. 337.

Goodall v. N. E. Mut. F. Ins. Co., 25 N. H. 169.

'See Chap. 8.

De Forest v. Fulton Ins. Co., 1 Hall (N. Y.) 84.

'Bridge v. Niagara Ins. Co., 1 Hall (N. Y.) 247; Jefferson Ins. Co. v. Cotheal, 7 Wend. (N. Y.) 72.

persons not named, must be sued in the name of the assured,' but if the person for whose benefit the policy is made, is named in the policy, as, if it is issued to "A., on account of B.," B. may maintain an action thereon, in his own name.'

3

Where a policy is made, "loss, if any, payable to A. and the insured, as their interest shall appear," the action must be in the name of the insured. Generally, when the policy, upon its face, shows that it was made for the benefit of third persons, exclusively, the beneficiaries may maintain an action in their own name, or in the name of the assured, for their benefit. Thus, the cestui que trust may maintain an action upon a policy issued to A., as trustee of B. The assignee may bring an action upon the policy in the name of the assured, and the assignment is ample evidence to establish his authority to do so. The assignor cannot prevent him from doing so, and cannot release, discharge or control the action. But in such cases, the assured may show that the interest of the assignee has been quieted."

When, by statute, the assignee may maintain an action upon a chose in action assigned to him, the assignee not only may maintain an action upon the policy in his own name, but he must thus bring the action,' unless his interest has been quieted. So, too, the assignee may sue when the insurer, either before or after the loss, upon a sufficient consideration, has promised to give him the benefit of the policy."

When a policy, assigned to a third person, is renewed in his name, and the premium is paid by hiin, he may maintain an action for a loss in his own name. So, where a policy in a mutual company is assigned with the consent of the company, and the assignee gives a new premium note, the policy becomes a new contract with him, and he may sue thereon in his own name.' If the policy is under seal, unless the assignment is also under seal, the action must be in the name of the

10

American Ins. Co. v. Insley, 7 Penn. St. 233; De Balle v. Penn. Ins. Co., 4 Whart. (Penn.) 68.

'Maryland Ins. Co. v. Graham, 3 H. & J. (Md.) 62.

'Owens v. Farmers' J. S. Ins. Co., 57 Barb. (N. Y.) 518.

'Hillyard v. Mut. Ben. Ins. Co., 35 N. J. 415.

'Nevins v. Rockingham, etc., Ins. Co., 25 N. H. 22.

"Summers v. U. S. Ins. and Trust Co., 13 La. An. 504.

Grosvenor v. Atlantic Ins. Co., 17 N. Y. 391; Cone v. Niagara Ins. Co., 60 N. Y. 619; aff'd, S. C., 3 T. & C. 33; Clinton v. Hope Ins. Co., 45 N. Y. 544; Frink v. Hampden Ins. Co., 45 Barb. (N. Y.) 384; Ripley v. Astor Ins. Co.

Demill v. Hartford Ins. Co., 4 Allen (N. B.) 341.

'Peoria, etc., Ins. Co. v. Harvey, 34 Ill. 46.

10 Stimpson v. Monmouth, etc., Ins. Co., 47 Me. 379; Shepherd v. Union, etc., Ins. Co., 38 N. H. 232.

assured.' In all cases, the assignee, in order to maintain the action, must show that he had an insurable interest in the property at the tiine of loss."

When a policy is made payable to two or more persons, the action should be in the name of all.' When, however, a policy issues to two or more joint owners, and one has sold his interest to his co-owner, in those States where, by statute, the assignee of a chose in action may maintain an action in his own name, an action will lie only in favor of the joint owner or owners to whom the policy has been assigned, or in whom the entire title vests. Where a sale by one joint owner to another is held not to amount to an alienation, within the meaning of the term as employed in policies, it would seem that, to recover a loss after such sale, the action must, in the absence of the assent of the insurer to such sale, or of a statute authorizing an action in the name of an assignee, be brought in the name of the persons named in the policy as the assured, setting forth the facts as to the transfer, and the interest of the real owner in the loss." But if, after notice of such sale or transfer, the insurer promises the assignee to pay the loss to him, the assignee may, upon proper averment of the facts, maintain an action in his own name." The doctrine stated, ante, that the action may be brought in the name of both joint owners, after one has parted with all his interest therein, militates seriously against the rule that a policy is void as to one who has no insurable interest therein at the time of loss, and has been denied in several cases; and in a New York case, it was held that no recovery could be had at law upon the policy in such a case, and that the only remedy of the party in interest was by bill in equity; and this would seem to be the most consistent doctrine. But whatever may be the rule in such cases, it is settled that when a policy is issued to partners, upon the death of one

8

'Bayles v. Hillsborough, etc., Ins. Co., 23 N. J. 163.

7

Bayles v. Hillsborough Ins. Co., ante; Graham v. Fireman's Ins. Co., 2 Dis. (Ohio) 255.

Marsh v. Robinson, 4 Esp. 98.

'Murdock et al. v. Chenango Ins. Co., 2 N. Y. 210; see statement of case, p. 561, n.; Hoffman v. Ætna Ins. Co., 32 N. Y. 405; see statement of case, p. 560, n. 4, 'Pierce v. Nashua F. Ins. Co., 50 N. H. 297; see statement of case, p. 566, n. 6; Tate v. Citizen's, etc., Ins. Co., 13 Gray (Mass.) 79.

'Pierce v. Nashua Ins. Co., ante; Wood v. Rutland Co. Ins. Co., 31 Vt. 552; see statement of case, p. 567, n. 4.

'See opinion of ALDIS, J., in Wood v. Rutland, etc., Ins. Co., ante; also, Hoffman v. Etna Ins. Co., ante, and the cases referred to therein.

8 Bodle v. Chenango Mut. Ins. Co., 2 N. Y. 53.