arising under the law of mandate, and perhaps as under the law of bailment. Certainly it was not a case of bailment, for nothing whatever was bailed, and nothing whatever was received; nor was it a case of mandate, if a mandatary, as commonly defined, and by Kent himself,1 is a gratuitous bailee, who is requested to do or have something done about the thing bailed.

A mandate, however, may perhaps be only a voluntary commission, offered and undertaken, wholly without compensation; and in this sense, the defendant in Thorne v. Deas was perhaps a mandatary.

The essential question upon which this case actually depended, was this: was the defendant a gratuitous accepter of a commission? The court came to the conclusion, from the attendant circumstances, that he had never intended to ask or receive a compensation, and would have had no right whatever to demand one, had he performed the service. And if this be assumed, there can be no doubt whatever, that the case was decided aright.

The general rule, however, must be this: if A asks B to render him a service, and B. agrees to do it, and does it, B thereby acquires a right to demand from A a reasonable compensation, which A is accordingly bound to pay. And this obligation of A to pay for the service when rendered, is a good consideration for the promise to render it.

We doubt whether there be any exception to this rule. But there certainly may be a waiver of the right of the agent or servant to his compensation, which may be express, or it may be implied from some special relation of the parties, or any circumstances which indicate an agreement or understanding of the parties that there shall be no pay for the service. We are however quite confident that this waiver cannot be always, or even

the promise is given, either by doing a wrong thing, which would be malfeasance, or by doing a right thing in a wrongful and injurious way, which would be misfeasance. 12 Kent, 558. So it seems to be considered as belonging to the law of bailment, in 1 Smith's L. C. 82, and cases gathered to illustrate Coggs v. Bernard. But we consider that the delivery and acceptance of any letter, or parcel, or money, or note, or indeed of any chattel, makes a new case of it, and brings in a new consideration. Durnford v. Patterson, 7 Mart. La. 460; Shillabeer v. Glyn, 2 M. & W. 145; Robinson v. Threadgill, 13 Ired. 39; Whitehead v. Greetham, 2 Bing. 464, 1 McLellan & Y. 205, and 10 J. B. Moore, 183.

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;1 and if it be sealed, debt (as provided by English statutes) or covenant;3 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.

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 interest may also bring the action in his own name.

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.

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.

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

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

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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. 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.4

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.

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.