this does not affect the right of the insured to recover for the benefit of the other parties in interest.1

An assignee must, generally, bring a suit in the name of the assignor. But if there be a promise of the insurers to the assignee, he may bring the action in his own name.

And in

1 Copeland v. Mercantile Ins. Co., 6 Pick. 198.

2 Hobbs v. Memphis Ins. Co., 1 Sneed, 144; Jessel v. Williamsburgh Ins. Co., 3 Hill, 88. The policy in this latter case contained the usual clause, that the interest of the insured should not be assigned without the consent of the corporation. The insured assigned his interest with their consent, and the assignee sued in his own name. The court held that the action should have been brought in the name of the assignor, and the plaintiff was therefore nonsuited. But, in Louisiana, it seems that the assignees might maintain an action, in their own names, in such a case. Hermann v. Louisiana State Ins. Co., 7 La. 502.

8 The general principle of law is well settled that an assignment of a chose in action, with the consent of the debtor, gives the assignee the right to sue upon it in his own name. Currier v. Hodgdon, 3 N. H. 82; Morse v. Bellows, 7 id. 549, 565; Moar v. Wright, 1 Vt. 57; Bucklin v. Ward, 7 id. 195; Hodges v. Eastman, 12 id. 358; Smith v. Berry, 18 Maine, 122; Warren v. Wheeler, 21 id. 484; Barger v. Collins, 7 Harris & J. 213, 219; Thompson v. Emery, 7 Foster, 269. The same is true of the contract of insurance. Wiggin v. American Ins. Co., 18 Pick. 158; Wiggin v. Suffolk Ins. Co., id. 145; Wilson v. Hill, 3 Met. 66; Fogg v. Middlesex Mut. F. Ins. Co., 10 Cush. 337, 345; Phillips v. Merrimack Mut. Ins. Co., 10 Cush. 350; Flanagan v. Camden Mut. Ins. Co., 1 Dutch. 506. In Folsom v. Belknap Co. Mut. F. Ins. Co., 10 Foster, 231, it was said that if the charter or by-laws of a mutual company contain a provision that an assignee may become a member of the company, if the assignment is made and ratified, he may sue in his own name. But, in this case there being no such provision, it was held that, although the assignment had been agreed to, yet the action should have been brought in the name of the assignor. In Bodle v. Chenango Co. Mut. Ins. Co., 2 Comst. 53, A effected insurance in his own name, on certain goods, and then sold part of them to B, but did not transfer the policy. The defendants agreed that the insurance might stand. A loss having occurred, an action was brought in the names of both in a court of equity. Held that this was the proper and only form of relief, for an action at law would not lie in such a case in the names of both. If the act of incorporation allows the assignee to sue in his own name, if the subject has been transferred to him, he must aver that he became the purchaser, or assignee of the subject-matter insured, and a general averment that he became and was interested in the buildings insured, and that the insured transferred all his right, and interest in the policy to him is not sufficient. Granger v. Howard Ins. Co., 5 Wend. 200. And, in such a case, if A and B are insured jointly, and A sells out to B, it has been held that no action will lie in the names of A and B, for the assignee should sue in his own name. Ferriss v. North American F. Ins. Co., 1 Hill, 71; Mann v. Herkimer Co. Mut. Ins. Co., 4 Hill, 187; Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210; Howard v. Albany Ins. Co., 3 Denio, 301; Conover v. Mut. Ins. Co. of Albany, id. 254. In Tennessee, the action must be in the name of the assignors for the benefit of the assignee. Hobbs v. Memphis Ins. Co., 1 Sneed, 444.

some of our States, assignees of choses in action, may bring actions in their own name; but subject to all equities of defence.

In some policies there is a provision that an assignee (usually one who is such with the knowledge and consent of the insurers) may bring an action upon it in his own name. And this applies to an assignment made during the continuance of the risk.1

SECTION II.

AGAINST WHOM, AND WHEN THE ACTION MAY BE BROUGHT.

If there be double insurance, it may be brought against all the insurers, or either severally; and the insurer who pays will have his claim for contribution against the others. And the same rule is applied where there are several distinct underwriters on the same policy. This is now unusual in this country; and not so common as it once was in England. And there it is usual in such cases to enter into what is called "a consolidation rule," the effect of which is, that all the suits and rights of action await and abide the decision of one of them.3

4

There may be an action at law on an agreement to make out and give a policy; or an action of trover for a policy if it is made out; and this last action is said to lie where an agent writes that he has effected a policy, and has not.5 So a bill in equity may be brought for a policy duly executed, or to correct

1 See Ferriss v. North American F. Ins. Co., 1 Hill, 71; Carter v. United Ins. Co., 1 Johns. Ch. 463.

2 Newby v. Reed, 1 W. Bl. 416; Wiggin v. Suffolk Ins. Co., 18 Pick. 145.

* This practice is so peculiarly a part of English jurisprudence, that we do not think it necessary to treat of it at length. The learned reader will find it fully discussed in 2 Arnould on Ins. 1277-1285.

* Hamilton v. Lycoming Mut. Ins. Co., 5 Barr, 329. See also, Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 405, per Nelson, J. If the policy is made out but not delivered, an action of assumpsit will lie on the contract. Blanchard v. Waite, 28 Maine, 51; Loring v. Proctor, 22 id. 18.

• Harding v. Carter, Park, Ins. 4.

6 Perkins v. Washington Ins. Co., 4 Cow. 645, 6 Johns. Ch. 485; Palm v. Medina Co. Mut. F. Ins. Co., 20 Ohio, 529. And when a court of equity has acquired jurisdiction of the case, it will proceed and give final relief, and not turn the party over to

errors in a policy, where the remedy at law is imperfect or inadequate.1

Insurers who accept an abandonment made to them, acquire thereby, in general, the rights of action of the insured, which refer to the subject-matters insured; but they must bring the actions, as assignees, that is, in the names of the insured.2

Policies sometimes stipulate that the insurers shall not be bound to pay the loss, until sixty days, or ninety days, or some other period, after proof of loss. This means after the usual and customary preliminary proof; and not the full and legal evidence necessary to maintain the action.3

This proof must depend upon all the circumstances of the case. Thus, if the master is a prisoner, and is therefore unable to make a protest, less strict evidence of the loss is required.* So if there are special provisions in the policy which make the

an action at law on the policy. Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Union Mut. Ins. Co. v. Commercial Mut. M. Ins. Co., 2 Curtis, C. C. 524, 19 How.

318.

1 See ante, p. 38, n. 2.

2 See ante, ch. 10, s. ix. p. 416, and p. 418, n. 2.

3 In Lawrence v. Ocean Ins. Co., 11 Johns. 241, 260, the law on this subject is stated by Thompson, C. J., as follows: "The clause in the policy making preliminary proof necessary, before payment of the loss can be demanded, requires only reasonable information to be given to the underwriters, so that they may be able to form some estimate of their rights and duties, before they are obliged to pay; this clause has always been liberally expounded, and is construed to require only the best evidence which the party possessed at the time." See also, Child v. Sun Mut. Ins. Co., 3 Sandf. 26; Talcot v. Mar. Ins. Co., 2 Johns. 130; Barker v. Phoenix Ins. Co., 8 id. 307. But the insurer is entitled to all the documents which the insured has. Those generally presented are the protest of the master, the surveys, all communications which have been received, and in the case of the cargo, the bill of lading and invoice. See Allegre v. Maryland Ins. Co., 6 Harris & J. 408, where it was held that the insurers were entitled to receive the invoice of the cargo. And although a document would not be admissible in evidence in a suit on the policy, yet if it is material it should be exhibited to the insurers as a part of the preliminary proof. American Ins. Co. v. Francia, 9 Barr, 390.

Munson v. New England Mar. Ins. Co., 4 Mass. 88. In Child v. Sun Mut. Ins. Co., 3 Sandf. 26, one of the owners, who was the managing agent in whose name the policy was effected, produced the register of the ship, and made an affidavit that the vessel had sailed twenty months before from the Sandwich Islands, and had not been heard from for fifteen months. It was held that this was sufficient proof of the loss. So an abandonment may be made on the information which the insured have received "of the loss, and before they are in the possession of the protest. Craig v. United Ins. Co., 6 Johns. 226, 249. See also, Barker v. Phoenix Ins. Co., 8 Johns. 307.

production of certain documents of great importance, the insured is bound to produce them, or to account for their non-production, as the survey, under what is called the "rotten clause.”1 The insurer may, however, waive his right to have full preliminary proofs presented, and he does this by refusing to pay the loss, such refusal not being based on any objection to the proofs.2 When the policy contains the clause in respect to time, mentioned on the preceding page, the right of action does not, of course, begin until the specified period has elapsed after the proof is presented. There is in some policies, at least in fire policies, a clause requiring that the action shall be brought within six months (or some other definite period) after the occurrence of the loss. And this clause has been held to be valid.

But a pro

1 Haff v. Marine Ins. Co., 4 Johns. 132, Anthon, N. P. 14.

2 Francis v. Ocean Ins. Co., 6 Cow. 404; Ocean Ins. Co. v. Francis, 2 Wend. 64; M'Intyre v. Bowne, 1 Johns. 229; Vos v. Robinson, 9 Johns. 192; Martin v. Fishing Ins. Co., 20 Pick. 389; Allegre v. Maryland Ins. Co., 6 Harris & J. 408. In Child v. Sun Mutual Ins. Co., 3 Sandf. 26, it was held that if the preliminary proofs are not objected to, they are presumed to be waived. In Johnston v. Columbian Ins. Co., 7 Johns. 315, the preliminary proofs were submitted by the insurers to their agent, who stated the amount of the loss to be partial, and this was paid into court. It was held that the act of the agent admitted the sufficiency of the proof in the first instance, and that the payment of the money into court admitted that the insured had a cause of action. But where the president of an insurance company, on being asked what further proof was required, answered, "The policy will show," it was held that the answer was not a tacit admission that there was no objection taken to any defect in the preliminary proof that had been furnished, nor a waiver of such proof. Spring Garden Mut. Ins. Co. v. Evans, 9 Md. 1.

3 Bryant v. Commonwealth Ins. Co., 6 Pick. 131; Camberling v. M'Call, 2 Yeates, 281, 2 Dall. 280; Barker v. Phoenix Ins. Co., 8 Johns. 307; Ames v. New York Union Ins. Co., 4 Kern. 253. In Allegre v. Maryland Ins. Co., 6 Harris & J. 408, it is held that the stipulation of the parties that the loss is to be paid in a certain time, looks only to the case of an amicable adjustment by themselves; and that when this cannot be made, the insured is absolved from the operation of the stipulation, and the right of action immediately accrues. This question is one which is of much importance in the law of contracts generally, and we have considered it in our work on that subject. See 2 Parsons on Contracts, 179. On the authorities there cited we do not consider it as yet settled whether a mere refusal to perform an act which the party has, by the terms of his contract, till a certain day to perform, will give the right of immediate action, though if he incapacitates himself from the performing it, it would seem that the right of action accrues at once.

Cray v. Hartford Ins. Co., 1 Blatchf. C. C. 280; Wilson v. Ætna Ins. Co., 27 Vt. 99; Amesbury v. Bowditch Mut. F. Ins. Co., 6 Gray, 596; Ketchum v. Protection Ins. Co., 1 Allen, 136. And in Fullam v. New York Union Ins. Co., 7 Gray, 61, it was held that it did not take the case out of the general rule that the company was a stock company and doing business in another State. In 41

VOL. II.

vision that a suit shall be brought in the county where the insurer has his place of business, has been held not to be binding on the parties,1 though the distinction which is made between these two clauses, seems to us to be somewhat nice.2 But it is clear

Wilson v. Ætna Ins. Co., the action was commenced within the time specified, but the plaintiff, without fault on his part, became nonsuit in consequence of a defect in the proof of the destruction of the policy which was destroyed with the property insured. Another action was then commenced after the expiration of the time, and the court held that it was too late. But in French v. Lafayette Ins. Co., 5 McLean, 461, it was held that such a clause was of no effect.

1 Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174; Hall v. People's Mut. F. Ins. Co., id. 185. But as in Massachusetts all acts of incorporation are made public acts (Rev. Stats. c. 2, § 3), the legislature, by providing in an act of incorporation that all suits in certain cases shall be brought in a particular county, thereby repeals to this extent all other public acts which are inconsistent therewith, and a suit can be brought in the cases specified only in the particular county, but such an act is to be construed strictly, and if the precise case pointed out does not occur, the insured may bring his action in any county. Boynton v. Middlesex Mut. F. Ins. Co., 4 Met. 212.

2 The reason for this difference between the two classes of cases is thus stated by Shaw, C. J., in Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174, 180: "The time within which money shall be paid, land conveyed, a debt released, and the like, are all matters of contract, and depend on the will and act of the parties; but in case of breach, the tribunal before which a remedy is to be sought, the means and processes by which it is to be conducted, affect the remedy, and are created and regulated by law. The stipulation, that a contracting party shall not be liable to pay money, or perform any other collateral act, before a certain time, is a regulation of the right, too familiar to require illustration; a stipulation, that his obligation shall cease if payment or other performance is not demanded before a certain time, seems equally a matter affecting the right. A stipulation, that an action shall not be brought after a certain day, or the happening of a certain event, although, in words, it may seem to be a contract respecting the remedy, yet it is so in words only; in legal effect it is a stipulation that a right shall cease and determine if not pursued in a particular way within a limited time, and then it is a fit subject for contract, affecting the right created by it." It is, however, difficult to see why the time in which the action is to be commenced, is not part of the remedy as much as the place where the same shall be brought. The case of French v. Lafayette Ins. Co., 5 McLean, 461, was decided on the ground that the clause as to time affected the remedy and not the contract, and that as the statute of limitations prescribed the proper time in which a suit might be brought, which was the time fixed by the policy of the law, the clause fixing a different time was in conflict with it, and therefore void, and was an attempt to discharge or bar a right of action before the right accrued, and was therefore contrary to the principle that a release can only operate upon an existing claim.

If this question, in reference to policies of insurance, may be illustrated by what has been held in regard to other agreements in delay or avoidance of rights of action, it might be said, that it has been held that an agreement not to sue on a note within twenty years is not good, and a suit may be brought within the time. Lowe v. Blair, 6 Blackf. 282. And in Berry v. Bates, 2 Blackf. 118, it was held that an agreement