equitable right to its production, nor would it appear that the new statutes as to evidence make any difference in this respect.

In practice, however, the covenant is very often waived, where the insurers are satisfied as to the custody in which it is intended that the deed shall remain, and they are *content with attested copies and a [*325] parol undertaking, or in some cases an indemnity is given. When policies in several offices are comprised in the same deed, it is not unusual to deposit it with one company for the benefit of the rest; but the company holding it would not be advised to enter into a covenant for its production. When the deed including policies in several companies has been once delivered to one of them, that company will be entitled to retain it, notwithstanding the larger amount of the insurances effected with the others.

18. Upon the payment of the claim, the insurers are entitled to the delivery of the policy; but it does not follow that, because the policy cannot be produced, an action upon it cannot be sustained.

19. When an instrument is negotiable, and the interest in it passes from hand to hand by delivery, its loss is an insuperable bar to an action at law;(a) but where it is not negotiable (and policies of assurance are not so,) this is not the case. A distinction was formerly taken between instruments of the latter class of a parol nature, or under hand only, and those which are under seal, and therefore specialties; and at one time, in consequence of the rules respecting profert and oyer, an action upon an instrument under seal could not be sustained without the possession of it. This strictness has, however, been long since modified by the rule that profert might be excused in the declaration on the grounds that the instrument was lost or destroyed, or was in the possession of the defendant; and now that profert and oyer have been abolished, it would seem that in all cases an action may be sustained upon proof of the execution or grant of the policy, which may be readily done under the new law of evidence, by calling the officers of the company, and obtaining the production of the office books. Since an assignee acquires no right of action, the company would incur no liability by paying the claim to the grantee, provided that no notice of lien has been given by the [*326] assignee; and the payment of the claim would be a discharge both at law and in equity. Should it, however, be necessary for the assignee to proceed in equity, the bill must contain an offer to give a proper indemnity under the direction of the court, and an affidavit of the loss must be annexed. (6) In such a case it has been said, that the offer entitles the court to require an indemnity not strictly attainable at law, and founds a just jurisdiction. (c) At the same time it has been considered, that if recovery can be had at law, equity will not entertain the bill, notwithstanding the offer of indemnity; but, having regard to the rights of the party paying the money, the propriety of this exception has been doubted, (d) for he is entitled upon payment of such a security to have it delivered up to him as a voucher of its payment, or extinguish

(a) Hansard v. Robinson, 7 B. & C. 90.__ { (¿) Walmsley v. Child, 1 Ves. 344. (c) 1 Ves. 344, 345. 446, 2 Ves. 38, 16 Ves. 430. 439, 7 Ves. 19. 21, 9 Ves. 468, (d) Mossop v. Eaden, 16 Ves. 430.

469.

ment: and it may have been assigned in equity to a third party; and although in such a case the assignee would be affected by all the equities between the original parties, yet the insurers may not always, after a great length of time, be able to establish those equities by competent proof; and, at all events, he may be put to serious expense and trouble to establish his exoneration from the charge. The jurisdiction of courts of equity under such circumstances seems perfectly within the principles on which such courts ordinarily proceed to grant relief, not only in cases. of absolute loss, but of impending or probable mischief or inconvenience; and a bond of indemnity, under such circumstances, is but a just security to the promisor against the vexation and accumulated expenses of a suit. It would therefore seem equally reasonable for the company to require such a bond, whether the claim was one upon which recovery might be had at law or in equity only.(e)

*20. A question may be raised as to the effect of the statutes of limitation upon a claim of this nature; but from the form in [*327] which policies are for the most part granted, namely, making the sum assured payable not at the expiration of a certain time after the death of the assured, but "after satisfactory proof of the death shall have been given to, or received by, the directors," the point can rarely be of importance; the statutes do not begin to run until the cause of action arises, after which twenty years would be a bar when the policy was under seal, (f) and six years when it was under hand only; (g) but the cause of action would not arise on such policies upon the death, but upon the proof. Hence, ignorance of their rights is not likely to prejudice the representatives of an assured person. A question might, however, be raised where the directors had received proof aliunde, as where another person had assured the same life by a separate policy, and received the assurance moneys. When the policy is upon the life of the assured and he dies intestate, the statute could not in any possible case begin to run until the grant of letters of administration by the Ecclesiastical Court.(h)

21. Lastly, should the insurers, in ignorance of their rights and of the facts of the case, have paid a claim upon a void policy,-as, for example, where it was obtained fraudulently, or without an insurable interest to support it,-they will be entitled to recover the money, unless it has been paid after the commencement and under the pressure of legal proceedings against them, or voluntarily, or under a mistake not of the facts, but of the law. (i)

[*328]

*CHAPTER III.

ENFORCEMENT OF CLAIMS.

1. WHEN the policy has become a claim, the payment of the assurance moneys, unless duly made by the company, may be enforced by the assured; or, where the policy has been effected by him upon his own life, by his personal representatives. When the policy has been assigned, the assignee, as in the case of a purchase upon a sale, will be entitled to sue the office in the name of the assignor, or, as the case may be, of his executor; and a court of law will take notice of the equitable interests of the assignee;(a) and, in so simple a case, a court of equity will probably refuse to interfere without some special circumstances calling for its intervention-more particularly, if the deed of assignment contains a power of attorney, which is subsisting at the time of the suit. (b) But if there are special circumstances, and if it is represented that the assignor, notwithstanding the right which the assignee has obtained to sue in his name, will interfere and prevent the exercise of that right, a court of equity will interpose; and if the assignor or his representative refuse to allow the matter to be tried at law in his name, will compel them to do so; (c) and also has a jurisdiction in the first instance to compel payment to the assignee, especially when there is collusion between the parties by whom the payment is to be made and the assignor; and in

[*329] such a case will set aside a release fraudulently given to the assurers by the latter, (d) which, indeed, would be also done by a court of law, in not allowing the release to be pleaded.(e) The assignor is, however, entitled to be indemnified against the costs of the action, which a court of equity will restrain until security is given.(ƒ)

2. The right of the assignee to sue in the names of the personal representatives of the assured is, however, further controlled by the possession of the probate or letters of administration by the latter. Prior to the Common Law Amendment Act, profert must have been made of these, and oyer might have been demanded, in which event their nonproduction was a bar to this action. A certificate from the Prerogative Court was not a substitute for them. This was decided expressly in a case shortly before the act, in which a policy had been assigned by a deed absolute in form, but in fact intended as a mortgage only. The claim was made for the payment of the full sum assured, which exceeded the debt, and was resisted by the insurers at the request of the widow and executrix.(g) Profert and oyer are now abolished; (h) but it is conceived that the same result would ensue under the plea ne unques executor, for the real plain

(a) Bauerman v. Radenius, 2 Smith's Leading Cases, 236.

(b) Keys v. Williams, 3 You. & Coll. 466-7.

(c) Gardeners v. Parker, 3 Mad. 184.

(d) Hammond v. Messenger, 9 Sim. 327. (e) Phillips v. Clagett, 11 M. & W. 90. (f) Annerly v. Simon, 4 Mad. 390. (9) Willey v. Bignold, 11 Jur. 309. C.B.

(h) 15 & 16 Vict. c. 76, s. 55.

tiff would have no power to compel the nominal plaintiff to produce any documents in his possession.

3. As we have already observed, when the policy has been assigned and the legal and equitable rights are vested in different parties, the office is in general entitled to a receipt, not only from the equitable claimants, but also from the party who possesses the legal right. This arises from the legal and equitable doctrines relating to the assignment of choses in action. Such an assignment not being recognised in a court of

law, but being good in equity only; the recovery in equity by [*330] the assignee, would be no answer to an action at law by the assignor, in whom the legal right to sue would still remain, and who might exercise it to the prejudice of the party liable, who would then be driven to the circuitous process of filing another bill against the plaintiff at law to stay his proceedings.(i) When, therefore, it is necessary to enforce payment of the claim in a court of equity, the assignor or his executors (as the case may be) must be made parties to the suit, in order that the legal rights may be bound by the decree of the Court.(7)

4. The distinction taken between the legal and equitable title is well shown in the case of Glyn v. Locke,(7) before Lord Chancellor Sugden, in Ireland. In this case, two policies were effected by A., upon his life, with the Globe Insurance Office; one for 4257., in his own name, and the other for 17007., in the name of B., as trustee. Shortly afterwards A. assigned these policies, by deed, to B., upon certain trusts, for the payment of debts, and advances then made and thereafter to be made by B. on A.'s account, and subject thereto for A.'s daughters, as he should appoint. The deed of assignment contained no proviso that the receipt of the trustee should be a good discharge for the amounts insured. Upon A.'s death, claims were made upon the office by B.'s executor, and notices were served upon the company by A.'s administrator, by one of his daughters, and the husband of another daughter, cautioning the company against paying the amount to B.'s executor. Upon a bill of interpleader being filed, another notice was served on the company by A.'s administrator, withdrawing his claim to the two policies, and the bill was subsequently taken as confessed against him, and also against A.'s daughter. *The Lord Chancellor considered that the case stood upon en[*331] tirely different grounds with regard to the two policies. As to that for 17007., the legal right to sue being in B.'s executor, and the nature of the trusts of the deed being such as to absolve the company from seeing to the application of the money, he considered that the bill must be dismissed with costs. But as regards the policy for 4257., he observed, "that policy was effected by the settlor, and, therefore, the person who had the legal right to recover was his personal representative, who, unfortunately, insisted upon the company paying hin the amount of both policies. The notice shows that he was acting under a misapprehension of his rights, but, nevertheless, claiming for the general benefit of the family. I do not feel at liberty to say this was not a case for in

(i) Daniel Ch. Pr. 207-8; Brace v. Harrington, 2 Atk. 235; Ray v. Fenwick, 3 Bro. C. C. 25; Cathcart v. Lewis, 1 Ves. J. 463. (1) 3 Dru. & War. 11.

(k) Mitford, 206. 179. Dan. Ch. Pr. 202.

terpleader, for here was a conflict." The question, it will be remarked, had become entirely one of costs, and the Lord Chancellor continued: "As to so much of the bill as relates to the policy for 4257., I think that the plaintiffs are entitled to their costs up to the service of the notice of the administrator withdrawing his claim. If the bill was filed in error as to that policy, the fault lay with the defendant; but upon the service of that notice the company. ought to have stopped, because it was his claim alone that entitled them to file the bill; and the moment he withdrew his claim, from that time the smaller policy stood upon the same ground as the policy for 17007." Again, in another case(m) before the late Master of the Rolls in England, an assured deposited a policy on his own life with a creditor, to secure a sum due, and further advances, and thereupon the usual notice was given. Subsequently he assigned the policy to the same party by deed, containing a power of attorney to receive the insurance moneys when payable, and, in addition, a full receipt clause. On the death of the assured, the company refused to pay without the receipt of his personal representative (whom they alleged to be a necessary party to a bill,) or *an indemnity. The per[*332] sonal representative was accordingly made a party, and disclaimed any interest; and thereupon payment of the money was decreed, with interest at 4 per cent., from three months after the decease of the assured; but no costs were given.

5. It does not appear that the rules to be derived from the preceding cases are altered, in the first instance, by the provisions of the New Chancery Procedure Act, (n) but by the 44th section it is enacted, “that if in any suit or other proceeding it shall appear that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit, or other proceeding, on such notice to such person (if any) as the Court shall think fit; and orders so made by the Court shall bind the estate of the deceased in the same manner as if a duly constituted personal representative had been made a party." This section will doubtless be applicable to all cases in which the interest of the personal representative is merely nominal, the object being to bind the estate ;(o) but it does not appear clear that it will be held so, when an account has to be taken between the plaintiff and the estate of the deceased, as in the case of a mortgage; perhaps, it might be so when the receipt clause is ample, or the provisions of the deed are equivalent thereto.(p)

6. No interest was formerly recoverable in an action upon a policy, notwithstanding that the sum insured was not paid at the time stipulated ;(2) but now it is enacted by a late statute, that the jury, on any inquisition of damages, may, if they shall think fit, give damages in the

(m) Ottley v. Gray, 16 Law J. C. 512. (n) 15 & 16 Vict. c. 86.

(0) Groves v.

(p) Chaffers v. Headlam, 9 Hare, App. 46. (2) Higgins v. Sargent, 3 Dowl. & Ry. 613.

Lane, 9 Hare, App. 47.