[*333] nature of interest over and above the money recoverable, *in all actions on policies of assurance made after the passing of that act.(r) The statute does not give interest at all events from the time at which the money becomes payable, but enables a jury to give it in its discretion. And equity would follow the law, equally awarding it in a proper case, (s) although the discretion of a court of equity is not controlled by the act.(t) No interest would, therefore, be recoverable, except upon the expiration of the stipulated time after the death, and after a valid discharge had been tendered for the insurance moneys. Thus, prior to the statute, no interest was given on the sum assured by a policy which had been lost, and which the office in consequence had refused to pay (u) and this would appear to remain unaltered by that statute.(v) Every case must depend upon its own particular circumstances; but where the company is in the position of being liable to pay the money at any instant, there appears no equity to compel it to make or retain an investment at its own hazard. (w) In a case in which there was likely to be great delay and difficulty, it is conceived that the company could always prevent any question by giving notice to the claimant that the money was lying at their bankers, making no interest, and by never reducing their floating balance below the specified amount.(x) 7. When there are conflicting claims at law, and the respective claimants each require payment of the sum assured, upon an action being brought by one of them relief may be obtained by the office by a motion by way of interpleader, under the 1 & 2 Will. 4, c. 58.(y) As however, it can scarcely happen but that the claim of one *party is of a purely equitable character, upon receiving notice of the con[*334] flicting claims, relief must be sought by the insurer by a bill of interpleader. It is not necessary to wait until an action is brought or other proceedings taken, nor even until an apparent title is shown in each de fendant, but as soon as the conflict of claims arises, the insurers are entitled to be protected against the double vexation, and may file a bill against the rival claimants, praying that they may interplead, and for protection in the interim against their demands, which will be granted by injunction restraining any action at law against the plaintiff in equity.(z) 8. To justify a bill of interpleader, it is not sufficient that there should be an imperfect title,-there must be a conflict of claims. The recent case of Fenn v. Edmonds (a) well illustrates what is a conflict. In March, 1842, a policy effected with the Asylum Company upon the life of one Robert Stuart was assigned by A. B., the assured, to a mortgagee to secure a debt of large amount, with power for the mortgagee to demand and sue for the sum assured in the name of A. B., her executors, or administrators. Notice of the assignment was duly served upon the (r) 3 & 4 Will. 4, c. 42. (In re Powell's Trust, 10 Hare, 134. Coote on Mortgages, 3 edit. 438. (8) Bignold v. Audland, 11 Sim. 23. (u) Bushman v. Morgan, 5 Sim. 635. (w) Wolfe v. Findlay, 6 Hare, 66. (z) Calcraft v. Roebuck, 1 Ves. 221; see Sug. Vend. 793, et seq. (y) Collier v. Laurie, 3 C. B. 334; 13 M. & W. 800; 15 M. & W. 194. (2) East and West India Dock Company v. Littledale, 7 Hare, 57. (a) 5 Hare, 314. company, and subsequently, in November in the same year, A. B. became bankrupt. In April, 1844, the sum insured became payable by reason of the death of Robert Stuart, and in the course of the next month the solicitors of the insurers applied to the solicitors of the assignees, inquiring whether they had any objection to the payment being made to the mortgagee, or if they would concur in the discharge to the company. To this letter an undecided reply was given by the assignees; and upon the 8th of June following an action was brought against the company by the mortgagee in the name of the bankrupt. Upon this the solicitor of the company again applied to the assignees, to the same effect as before, and giving *notice of the action, to which the solicitor of the as[*335] signees replied, that he was not in a position to answer the letter. Upon this an interpleader bill was filed by the company against the bankrupt, the mortgagee and the assignees, and it was held by Sir James Wigram, V. C., that the bill was properly filed. "Looking," he said, "at the nature of the security and the property which it conprised, and the right of action against the company; looking also to the correspondence which took place before the bill was filed, and the answers of the assignees in the suit, which do not exclude their claim, I cannot say that the company might not have been liable to pay the sum due upon the policy a second time, if they had not instituted this suit." By the terms of the decree the costs were payable in the first place out of the fund in court, and untimely by the assignees. 9. The money is usually paid into Court for the benefit of the party to whom, upon the hearing, it shall be found due; and the office is entitled to costs, to be paid by the party wrongfully claiming; and in the last case they seem to have been given in the first instance out of the fund;(6) and not only in the Court in which proceedings are commenced, but also in the Court above, in the event of an appeal, and that whichever party is successful.(c) To sustain this title to costs, however, the insurer must not seek for any further relief, and hence where a bill was filed for protection against conflicting claims, in respect of a sum of money payable under a life policy, upon which interest would be recoverable at law, and the bill disputed the liability to pay such interest, it was held that it could not be sustained as a bill of interpleader; and raising also a question as to the costs of an action commenced against the plaintiff, was dismissed as multifarious, and that notwithstanding *the plaintiff had amended his bill, and submitted to pay such [*336] sum on account of interest as the Court might direct. (d) 10. When it is necessary to enforce payment of the sum assured in a court of law, the answer to the question against whom the action is to be brought will depend upon the constitution of the particular office, and the form and provisions of the policy upon which the demand arises. be remembered that the form of action, when the policy is not under (6) Fenn v. Edmonds, 5 Hare, 314. "The plaintiff, it would seem, has a lien on the fund when the suit is properly instituted."-Seton on Decrees, 341. Sed vide Martinius v. Halmuth, 2 V. & B. 407; 7 Hare, 59. (c) Masterman v. Lewin, 2 Phil. 189. (d) Bignold v. Audland, 11 Sim. 23. seal, will be assumpsit; when it is so, covenant; or debt, when the sum to be recovered is liquidated.(e) 11. When the company is incorporated either by Royal Charter or Act of Parliament, the policy will be under their common seal, and the action must be brought against the corporation as such; in which case it must appear by attorney made under the common seal, and execution can be levied upon the partnership property alone. 12. When the policy is issued by a company established prior to the Joint Stock Companies Registration Act, the action may be brought against the directors signing the policy, as if upon a covenant or undertaking by them. Thus in Bawden v. Howell, (f) when it was objected that all the members of a loan society should have been joined as plaintiffs, to two of whom a promissory note had been given on behalf of the society, it was held that such joinder was unnecessary, and in giving judgment, Maule, J. said, "The case is perfectly free from doubt. It is a matter of every-day occurrence for the business of unincorporated companies to be transacted in the manner in which the affairs of this society are conducted. Policies of assurance are generally signed by three directors; and it has never been suggested that the whole of the company *must sue and be sued upon such policies." When the policy is not under seal, [*337] not only, however, are the subscribing directors chargeable, but every other shareholder may be sued separately, or in conjunction with any other or others of his co-partners, and with or without the subscribing directors.(g) 13. It is, it is true, a general rule, that in actions upon contract every partner must be made a defendant, but it is also true that all contracts with partners are joint and several, each being liable to pay the whole, and that the objection of the nonjoinder of any of them must be raised by a plea in abatement by the defendants.(h) To this plea the statute 3 & 4 W. 4, c. 42, seems in the cases in question to form an insuperable impediment; for it is thereby enacted(i) that no such plea shall be allowed, unless the co-defendant whose nonjoinder is pleaded be therein stated to be resident within the jurisdiction of the Court, and unless the place of his residence be stated with convenient certainty in an affidavit verifying such plea. The plea should, moreover, mention all the defendants not joined, as otherwise, if the plaintiff takes issue on the plea, he will recover a verdict;() and if one of several co-contractors reside out of the jurisdiction, there can be no plea in abatement for nonjoinder of those within it.(?) Hence, when the parties are very numerous, as in the case of a jointstock company, the plea cannot, practically, be used. 14. When a contract is under seal, those only who are parties to it can be sued upon it; and unless it is several, as well as joint, the right Sunderland Marine Insurance Company v. Kearney, 15 Jur. 1006. Q. B. 3 Man. & Gr. 642; Hallet v. Dowdall, 16 Jur. 476, Exch. per Parke, B. Rice v. Shute, Burr. 2611. (i) Sect. 8. Crellin v. Calvert, 14 M. & W. 11. (2) Zoll v. Lord Curzon, 4 C. B. 249. of action will survive, and must, in the case of the death of one or more of the covenantors, be enforced against the survivors or survivor of them and his executors or administrators. It is immaterial that the defendants no longer fill the characters of directors or *trustees; the [*338] construction of such a policy being that it is a personal covenant or undertaking on their part, which they have been duly authorised to enter into by the company, and against which they are subsequently entitled to relief on performance of the contract; and that although, by the terms of the policy, they may simply order and appoint that the capital stock of the company shall stand charged with the payment of the sum assured.(m) In such a case, when the funds alone are expressed to be charged, the construction of such an instrument is that of a covenant by the subscribing directors upon a condition, namely, that the funds prove adequate, and they will be personally liable upon an averment that they are so, unless the contrary is pleaded.(n) In equity, also, the directors subscribing the policy will, in the first instance, be the proper parties to represent the company, either as plaintiffs, as when a bill is filed praying that the policy may be delivered up to be cancelled, or as defendants, upon the refusal of the company to satisfy a claim thereon. The other members having authorised the directors to enter into obligations for them, and having thus placed them in a situation of responsibility to third parties, will be bound by a decree against them; (o) and, in any case, it will be unnecessary that all the co-partners should be made parties, according to the well-known rule that, when the persons in the same interest are inconveniently numerous, they may be represented by a limited number of them.(p) 15. When a private Act has been obtained, it will be convenient to proceed in accordance with its provisions: but, unless the terms of the Act are imperative, it does not follow that a claimant must do so; on the contrary, he may still proceed against parties executing the policy, or against an individual shareholder. (2) When the policy is *is[*339] sued by a company completely registered under the Joint-Stock Companies' Registration Act, the claim must be enforced against the company according to the provisions of that Act. (r) 16. The general principles on which demands are to be enforced upon policies of insurance are greatly modified by the stipulations which are now usually, if not universally, contained in such instruments, to the effect that the contract is to be satisfied out of the funds of the undertaking alone. The rule that partners are both jointly and severally liable upon every one of the partnership contracts so that a partner in any such undertaking, whose interest is scarcely more than nominal, may become answerable upon the default of his co-partners for the entire liabilities of the concern, to his last shilling and his last acre, holds universally. But this liability exists according to the contract upon which (m) Gurney v. Rowlings, 2 M. & W. 87 (n) Dawson v. Wrench, 3 Exch. 229. (o) Barker v. Walters, 8 Beav. 96. (p) Ibid. (9) Beech v. Sir F. Eyre, 6 Scott, N. R. 327, 5 M. & G. 415; Blewett v. Gordon, Dowl. N. S. 815; Phelps. Lyle, 1 Ad. & Ell. 113. (r) See sects. 25. 66, 67, 68, and ante, p. 130. the demand is to be made, and into which the general rule of law is not to be allowed to import, as against individual shareholders, any increased responsibility. It has, indeed, been questioned whether such provisions are lawful, and whether they must not be rejected as repugnant to the original contract, and therefore void; but this objection seems to be fallacious for although an agreement, inter se, would not vary the liability of partners towards a third party, there can be no doubt but that the general liability of individual partners may be varied, or modified, by agreement with the party with whom they contract.(s) Of course such a clause might be void, if so imperfectly expressed as to be incapable of any reasonable and definite construction, although the intention might be guessed at. But, short of this, the Court will grapple with the difficulty, however great, in the construction of these provisions. 17. In the very important case of Hallet v. Dowdall,(t) *in the Exchequer Chamber, a clause of this nature was much con[*340] sidered. The policy was not under seal, and contained the following proviso: "And it is declared and agreed, by and between the said com-. pany and the assured, that the capital stock and funds of the said company shall alone be liable to answer and make good all claims and demands whatsoever, under, or by virtue of this policy; and that no proprietor of the said company, his or her heirs, &c., shall be in anywise subject or liable to any claims or demands, nor be in anywise charged by reason of his policy, beyond the amount of his or her share in the capital stock of the said company, it being one of the original and fundamental principles of the said company that the responsibility of the individual proprietors shall, in all cases, and under all circumstances, be limited to their respective shares in the said capital stock." The action was brought by the assured against four shareholders and one director who had not subscribed the policy. The questions raised were, first, whether there was a joint contract by all the shareholders (including the directors) to pay out of the capital stock, and of this opinion were two of the judges (Cresswell and Williams, JJ.); (u) secondly, whether the joint contract was not by the entire body, but by the directors only who had signed the policy, and of this opinion were Alderson, B., and Martin, B.; thirdly, whether there was a separate right of action against every shareholder, to the amount of his unpaid subscription, analogous to that founded by the 36th section of the Companies' Clauses Consolidation Act (8 & 9 Vict., c. 16,) whereby, after a fruitless execution against the company, execution may be issued by leave of the Court, to the like extent, against any of the shareholders, or to the separate and limited liability of ordinary underwriters upon a marine policy, as was thought by Martin, B.; fourthly, whether there was, in fact, any liability at law upon the "policy, as was questioned by Parke, B. It seems to have been considered that, in such a case it was necessary to [*341] aver the sufficiency of the funds, although it has been said that it had Hallett v. Dowdall, 16 Jur. 473, per Platt, B. (t) 16 Jur. 462, Exch. (u) Concurring with Coleridge, Wightman, and Erle, JJ., in the Court below. |