
    Maryland Insurance Company vs. Grahams.
    Appeal from Baltimore County Court. Covenant by the appellee against the appellants. The declaration stated, “That whereas by a certain deed made between Thomas Graham of the one part, and The Maryland Insurance Cornpany of the other part, at Baltimore county, on the twenty-fourth day ofSeptember, in the yea)- one thousand eight hundred and two, which deed,sealed with the seal of The Maryland Insurance Company aforesaid, the said Graham here into court brings, the date, whereof is on the day and year aforesaid, the said Graham, according to the usage and custom of merchants, (through and by fhigh Young and William Young, merchants, trading in partnership under the name and firm of Hugh and William Young, his attorneys and agents.) in his own name, did make insurance, and cansé himself to be insured against all risks, lost or not lost, at áud from New Geneva to The Nátches, with liberty to touch at Charleston on the OhioN &c. (in the words of thé policy.) “And it was also further agreed by the said deed, that in casé of any loss or misfortune; it should be lawful for the said Graham, the assured, his factors, servants and assigns, to site, labour and travel for, in and abmit the defence, safeguard and recovery, of the said goods and merchandizes, or a.&y part thereof, withoutprejudice to the said insurance, to the charges Whereof The Maryland Insurance Company aforesaid, by the said deed, did covenant and agree to contribute, according to the rate and quantity of the sum. therein insured; and so The Maryland In * mrance Company aforesaid were content, and by the said deed did bind themselves to the sáid Graham for the trite performance of the covenants in the said premises, con - fessing themselves paid the consideration due to them fob the said assurance, by the said Graham, after the rate of five per centum on the cargo of the said boat called The New Geneva, so by them insured against all risks. And it was also covenanted and agreed, by the said deéd, between 7 he Maryland Insurance Company aforesaid, and the said Graham, that thé said GrahaWi should abate two per centum to 'The Maryland Insurance Company, in case of the loss Of the said cargo in the said voyage, and that such loss should be paid by The. Maryland Insurance Company, to the said Graham, in ninety days after the proof and adjustment thereof,the amount of the note given for thesaid premium ofinsur*. anee, if unpaid, being first deducted. And it was also further covenanted and agreed by the said deed, mutually between the said parties, that if any disputes should arise relating' to a loss on the said policy of insurance, the same should be referred to two persons, one to be chosen by the said C-raham, the assured, the other by The Maryland Insurance Company aforesaid, which said two persons should have power to adjust the same; and if they should differ, to choose a third, any two of whom agreeing, their determination should be obligatory on both parties. In witness whereof The Maryland Insurance Company aforesaid did, by the president thereof, subscribe the sum of sixteen thousand two hundred and sixteen dollars current money, thereby assured, and cause the common seal of the said company to be affixed to the said premises, iti Baltimore, *° w^* ^le county aforesaid, on the day and year aforesaid, as by x’eference to the said deed will fully appear. And although he the said Graham hath welt and duly performed, fulfilled and kept, all and singular the covenants,” ,&c. “contained in the said deed or policy of assurance, on his part to be performed,” &c. “and hath fully paid and satisfied The Maryland InSur anee Company aforesaid, a large sum of money, to wit, the sum of eight hundred and twelve dollars and five cents current money, as a premium and reward for the assurance of the above mentioned sixteen thousand two hundred and sixteen dollars. The said Graham in fact faith, that the said boat or vessel called The Heiv Geneva, at the time of making the deed or policy, to wit, on” &c. “at,” &c. “was in safety, and that divex-s goods,” &c. “of a large value, to wit, of the value of,” &e. “were then and there «hipped by the said Graham in and onboard of the said boat or vessel, to be carried therein from” &c. “to,” &c. “upon the voyage in the said writing or policy of assurance mentioned, whereof The Maryland Insurance Company aforesaid, to wit, at,” &e. “had notice; and being so in safety afterwards, that is to say, on,” &c. “departed and sailed,” &c. (in the usual manner stating the loss of the vessel, of which the company had notice.) “And the said Graham then and there requested The Maryland Insurance Company aforesaid, to pay him the said Graham the said sutil of money insured by them as aforesaid, which The Maryland Insurance Company aforesaid ought to have paid to the said Graham, according to the form and effect of the covenant contained in the said deed or policy of assurance; yet The 'Maryland Insurance Company aforesaid, not regarding their said px-omises,” &c “have not paid to the said Graham the sum of money assured,” &c. concluding in the usual manner of such declarations. The policy of insurance was in the usual manner, stating, that “whereas Hugh and William Young, for account of Thomas Graham, do make insurance, and cause theqiselves, and their and every of them, to be insured, lost or not lost, at and from New. Geneva to the Hatches, with liberty to touch at Charleston on the Ohio,” &c. “and in case of any loss or misfortunes, it shall be lawful to and for the assured, their factors, servants and assigns, (and the assured on their part agree and engage by themselves, their factors, ser» ■yants or assigns,) to sue, labour and travel, for, in and about the defence, safeguard and recovery of the said ° J , goods or merchandizes, or any part thereof, without prejudice to this insurance, to the charges whereof we the assurera will contribute according to the rate and quantity of ¿he sum herein insured; and so we the assurers are con» tented, and do hereby bind The Maryland Insurance, Company to the assured, their executors, administrators and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for the assurance by the said assured, or their assigns, after the rate of five per cent, on cargo by said boat insured against all risks. And in case of loss, the assured is to abate two per cent, and such loss to be paid in ninety days after proof and adjustment thereof, the amount of the note given for the premium, unpaid, being first deducted. And it is mutually agreed, that if any disputes shall arise relating to a loss on this policy, it shall be referred to two persons, one to be chosen by the assured, the other by The Maryland Insurance Company, which two persons shall have power to adjust the same; but in case they cannot agree, then those two persons shall choose a third, and any two of them agreeing, their determination shall be obligatory on both parties. In witness whereof The Maryland Insurance Company have, by the president, subscribed the sum insured, and caused their common seal to be annexed to these presents in Baltimore, the twenty-fourth day of September one thousand eight hundred and two.” The general issue was pleaded. Verdict and judgment for the plaintiff, from which the defendants appealed to this court.
    
      In on action covenant on a policy of insurance, stating that H and W Y for ' account of T G-{the plaintiff-) did make insurance, ami cause them» selves^ and their and every of them, to be insured, &e. and 'the assurers, (being a corporate body) executed the Policy under their common seal. The declaration stated that the plaintiff, according to the usage .& custom of merchants, (through and byH&WY his attorneys and agents.) m ' his men name, did make insurance &c. Held (hat the sction.was well brought.
    
      The cause was argued before Chase, Ch. J. Buchanan, Gantt, and Earle, J.
    
      Martin, for the Appellants.
    This action is founded upon a policy of insurance executed by an incorporated company, under their common seal, which therefore is considered a specialty, and the action must be covenant or debt. No person cart sue upon the policy but he who can be considered a party to the specialty. The policy cannot, as to the assurers, be considered a specialty, and as to the assured a simple contract. An agent cannot seal an instrument for another, so as to be obligatory. This principle is established in Burnett vs. Kensington, 7 T. R. 207. Hugh and William Young alone can bring the 0 ° . ° action, and be considered parlies to the specialty, Godin vs. The London Assurance Company, 1 Burr. 489, was covenant on a policy executed by The London Assurance Company. Godin, & Co. brought the action in their own names, yet they were only the agents who made the in» surance for the use of TJhthoff. In 7 Wentw. 38, is a declaration against The London Assurante Company by Jacob Mendes Da Casta, yet he was only the agent who effected the insurance for Solomon Israel. No person can declare upon a policy under seal, but he, who in consideration of law, is party to the specialty. The agents in these kind oí policies do declare upon them in their own names; therefore, he for whose use the insurance is effected, is not-considered a party to the policy so as to declare in Ids own name. The case of De Ghetoff vs. London Assurance Company, 3 Brown's P. C. 525, also establishes the principle, that a suit at law must be in the name of the party who effected the insurance. A charter party executed by the master, though said to be done on behalf of the owners, doth not furnish a direct action grounded upon the instru-merit itself against them. Abbott, 146, (122.) But the owner? must be made responsible by a special action on the case, or by a suit in equity. Abbott, 88, (80.) The rule of the law of England is, that the force and effect ' which that law gives to a deed under seal, cannot exist unless executed by the party himself, or by someone in his presence and by his direction; or in his absence bv an agent authorised by another deed. And in all these cases the deed must be made “in the name of the principal,” and not by the agent in his name, for the use of his principal. Abbott, 146, (122, 123.) If an obligation be made to J D to the use of J S, it is a good obligation to J S in equity, but he cannot sue at law. The suit must be in the name of J D. Shep. Touch. 369.
    ■ In this case the declaration is not supported by the poli~ cy. The declaration states, that “the said Graham, according to the usage and custom of merchants, (through and - by Hugh and William loung his attorneys and agents,) in his own ñame, did make insurance', and cause himself to be insured,” The policy declares, “that Hugh and William Young, for account of Thomas Graham, do make insarar.ee, and cause themselves, and them, and each of them, to be insured.” The declaration says, “It was further agreed by said deed, that in case of loss, &c. it should be lawful for the said Graham, hisfactors, servants md assigns, to sue,” &e. The policy says, “in case of loss, ¿he. it shall be lawful to and for the assured, (to wit, Hugh and William Young,) and their factors,” &c. The declaration says, “and so The Maryland Insurance Company aforesaid did bind themselves to the said Graham for the true performance,” &c. The policy says, ‘ "do bind themselves to the assured, (the said Hugh and William,) their executors,” &c. The declaration says,, “confessing themselves paid the consideration due to them for the said insurance by the said GrahamThe policy says, “by the said assured, (the said Hugh and William,) or their assigns.” The declaration says, “and it was agreed by the said deed between the said Graham and The Maryland Insurance Company aforesaid, that in case of loss the said Graham should abate two per cent, to The Maryland Insurance Company aforesaid, and that such loss should be paid by The Maryland Insurance Company aforesaid, to the said Graham, in ninety days,” &c. The policy has only these words, “and in case of loss the assured, (Hugh and William,) is to abate two per cent, and such, loss to be paid in ninety days,” &c. The declaration says, ir# case of disputes they are “to be referred to two persons,, one to be chosen by the said Graham,” &c. The polity only says, “one to be chosen by the assured,” to wit, Hugh and William Young. Thus the court will perceive, that the declaration is, as if the insurance had been effected by Gra-. ham in his own name, but through his attorneys. Whereas the policy is. entered into by Hugh and William Young in their own names, though for the use of Graham•, and lienee comes within the decisions referred to in Jlbbott and Shepherd’s 7'ouchstone, tha.t though Graham has an equitable interest in the policy, yet the suit upon the policy must be in the name of Hugh and- William Young. Thai the suit at law must be brought in the name of him who has the legal title, whoever may be interested, is so clear, that it would be superfluous to cite authorities to prove it. The court are however referred to one of a very recent date, and of high respectability, Lewis vs. Harwood, 6 Cranch, 32. In that case TPhetcroft assigned a bond given to him by Lewis, to T. & B. Harwood, who instituted a suit thereon in the Circuit Court of the U. S. for tbe district of Virginia, against Lewis, in their own names. A trial was 0 " 7 ° ^ , . , had, and a judgment given in their favour. Lewis brought the case, byjwrit of error, before the Supreme Court of the U. S. where the judgment was' reversed, because, though the defendants in error were indisputably justly entitled to the money, yet the suit was brought in a wrong name.
    
    
      tf. Dorsey, for the Appellee.
    It is conceded that the only remedy on the policy is debt or covenant. The latter remedy has been resorted to; and the only question is, whether this action can be sustained in the name of Graham? In S Wentw. 378, there is a declaration in the.name of the assured on a similar policy. The case of Godin vs. The London Assurance Company, cannot affect the present case. There the insurance was effected by Godin, Guion, & Co. and was made as well in their own names, as for and in the name and names of all and every person or persons to whom the same doth, may,'or shall appertain, in alL or in part; and Godin, Guión, & Co. endorsed on the policy, that the insurance was made by the order of TJhthoff. In that case no objection was made to the right of the plaintiff to sue, but the only question was, whether, the person, for whose benefit the policy was effected, had an insurable interest in tbe thing insured. Besides, the person for whose benefit the insurance was made, was not mentioned in the policy. Abbott, 123, (147,) reports a case which unquestionably shows the present action may be maintained. “If a charter party is expressed to be made between parties, but runs thus — This charter party witnessed, that C, master of the ship W, with the consent of A and B the owners thereof, lets the ship to freight to E and F, and the instrument contains covenants by E and F, to and with A and B; in this case A and B may bring an action upon the covenants expressed to be made with them A’ , In the case before the court the policy of-insurance is not expressed to be made between The Maryland Insurance Company of the one part, and Hugh and William Young of the other; but in these words: This policy of insurance witnesseth, that Hugh and William Young, for account of Thomas Graham, do make insurance; and the covenants contained in the deed are between The Maryland Insurance Company and the assured, to wit, Thomas Graham, and ubis suit is founded on the covenants made by the company to and with the assured. The case cited from Shepherd's Touchstone does not apply, because there was no covenant between the obligor and the cestui que use. It is difficult to conceive how the case of Burnett vs. Kensington, 7 T. R. 207, can be brought to bear on the present case, as this suit is founded on a deed executed by The Maryland Insurance Company by their corporate seal.
    In answer to the objections urged on the ground of the supposed variances between the declaration and the policy, it is sufficient to observe, that the instrument is declared -on according to its legal eftect.
    In De Ghetoff vs. London Assurance Company, 3 Brown's P. C. 525, the policy was effected in the name of Be Conninck, and the names of the assured did not appear on the face of the policy. And it was held that De Conninck, the trustee, might bring an action of covenant on the policy. If the names of the parties assured had appeared on the instrument, then the assured might have sustained an action in their own names, according to the principles established in the case cited from Abbott.
    
    It has been the uniform practice in this slate to institute suits in this way, and the objection has never before been suggested, in a case decided by the supreme court of the U. S. at the last term, a similar declaration was sustained. Bigcloiu and Proud effected a policy similar to the present one, for and on account of Jacques linden, with The Maryland Insurance Company, yin action was brought in the circuit court of the U. S. held at Baltimore, on the policy, in the name of the assured against the company, and the plaintiff obtained a verdict and judgment. The cause way removed to the supreme court of the U. S. on bills of exceptions, and the judgment below affirmed. Maryland Insurance Company vs. Ruden, 6 Cranch, 388. The case of M‘Donough vs. Templeman, 1 Harr. & Johns. 156, supports the present action. In that case Burrows executed the agreement for and on account of Mil)onovgh, and the declaration was in covenant in the name of McDonough, and was sustained; but the court held, that The George Tovm Bridge Company, and not Temp lemon, ought to have been sued, as he executed the agreement as their agent.
   JTTiD GHENT AFFIRMED  