Flemming alone, no action of covenant could be maintained upon it in the name of the plaintiff. Secondly, that no evidence whatever was given, tending to prove that the plaintiff had an interest in the policy at the time it was procured by Flemming; or, in other words, that Flemming, at the time, intended the policy for the benefit of De Bollè, the plaintiff, and, therefore, the defendant was entitled to a verdict, unless the plaintiff should choose to take a nonsuit.

As to the first objection, though the learned judge inclined to think it was one that could not be got over, yet he gave no decided opinion or direction in regard to it; but, on the second, he charged the jury positively, that no such evidence had been given, and, therefore, they were bound in law, to give a verdict in favor of the defendants, and could not do otherwise. If the direction of the judge to the jury ought to have been in favor of the defendants on the first objection, still the verdict ought not to be set aside, though the direction given by him on the second were erroneous: because it must ever remain a bar to the recovery of the plaintiff, in this action at least, seeing he can by no possibility get rid of it. We, however, do not think that the charge was erroneous upon the second objection; but still, as the point involved in the first, has been made by the defendant's counsel, and argued on both sides, it may not be improper, on account of its importance, as it respects the practice, to express our opinion upon it.

A covenant may be defined to be an agreement between two or more parties, reduced to writing, and executed by a sealing and delivery thereof; whereby some of the parties, named therein, engage, or one of them engages with the other, or others, or some of them, therein also named, that some act hath or hath not already been done; or for the performance or nonperformance of some specified duty. A covenant then being an agreement, it is plain that in legal as also in common parlance, there must be at least two parties to it; or it can not be regarded as an agreement or covenant in any sense. And it would seem to be equally plain that no such covenant can be deemed perfect, unless the names of the parties are set forth or made known by it in some way; for without this it does not appear, that there are parties to it; quod non apparet, non est, seems to be the rule in this respect; and without parties, it is obvious there can be no agreement or covenant. Nor can a person be made a party to a mere personal covenant in a deed, who does not appear to be such, or whose name does not appear, in any way,

on the face of it, by averment, so as to enable him to maintain an action thereon in his own name. In Green v. Horne, 1 Salk. 197, where the plaintiff declared in covenant, that A. being indebted to him, and arrested at his suit, the defendant, in consideration that he would order the bailiff to let A. go at large, undertook and covenanted with the plaintiff to bring in the body of the said A. and deliver him into the custody of the bailiff such a day, etc., the defendant prayed oyer of the deed, which was: "I (the defendant) do promise and engage myself to bring in the body of A. to the custody of B., bailiff, such a day;" and upon its being demurred to by the defendant, the court held that the plaintiff could not set forth matter of fact in his declaration, not contained in the deed itself, so as to alter the case; also, that the plaintiff was no party to the deed, nor so much as named in it; and though covenant might be brought on a deedpoll, yet the plaintiff must be named in it. It will also appear from every case on the subject where an action of covenant has been sustained upon either a deed-poll or an indenture, that the name of the plaintiff was mentioned as covenantee in or on the face of the deed; though it will be seen that, to maintain the action, it is not requisite that the covenantee should execute the deed, by sealing and delivering it in either case; for it is the execution of the deed by the covenantor, which gives the right of action: Clement v. Henley, 2 Roll. Abr. 22; Faits, F, pl. 2; Petrie v. Bury, 3 Barn. & Cress. 353; Vernon v. Jeffreys, 2 Stra. 1146; S. C., 7 Mod. 353. And hence a stranger by sealing a deed inter partes, may bind himself by his covenant therein to one of the parties, though a party thereto can not covenant with another who is no party: Salter v. Kidgly, Carth. 76; S. C., Holt, 210; 1 Show. 58; East Skidmore v. Vandsteven, Cro. Eliz. 56; S. C., nom. Scudamore v. Vandenstene, 2 Inst. 673; 2 Roll. Abr. 22; Faits, F, pl. 1; Storer v. Gordon, 3 Mau. & Sel. 322; Metcalfe v. Rycroft, 6 Id. 75; Berkely v. Hardy, 5 Barn. & Cress. 355; S. C., 8 Dow. & Ry. 102; Barford v. Stuckey, 5 J. B. Mon. 23; S. C., 2 Brod. & B. 333; 1 Bing. 225. These authorities with the following establish a distinction between a deed inter partes and a deed-poll, showing that in the latter a party may covenant with a stranger and also with other persons, to do several other acts, for which every one severally may have his action: Cooker v. Child, 2 Lev. 74; S. C., 3 Keb. 94, 115; Lowther v. Kelly, 8 Mod. 115;. Lucke v. Lucke, Lutw. 93, Nels. fol. ed.; Clement v. Henley, 2 Roll. Abr. 22; Faits, F, pl. 2. Here the deed being inter partes, makes the objection against the plaintiff's maintain

ing this action upon it still stronger, if possible, than if it were a deed-poll.

It has, however, been argued that the right of a plaintiff to maintain an action on a commercial or maritime instrument, is not subject to all the rules of the common law, which obtain in regard to other instruments; and that the instrument in this case, though a deed, yet being of a maritime character, and made with Joseph Flemming, not merely for his benefit, but for that of all whom it might concern, the plaintiff, by showing that he was concerned or interested in it, ought to be permitted to maintain this action in his own name. It is true bills of exchange have always been held assignable according to the custom of merchants, contrary to the rule of the common law, which declares all choses in action not to be so. It may, however, be well questioned whether policies of insurance have ever been considered assignable at law, even when not under seal. The authorities referred to by the counsel for the plaintiff, go no further, at most, than to show that they have been regarded as assignable only in equity; placing them, in this respect, on the same footing with choses in action at common law: See Marsh. Ins. 800; Gourdon v. Ins. Co. of N. A., 3 Yeates, 327; S. C., 1 Binn. 330, in note; Rousset v. Same, 1 Id. 429; Delany v. Stodart, 1 T. R. 22. It is true that the plaintiff in Rousset v. Ins. Co. of N. A., appears to have been but the assignee of the policy; but no exception was taken, on that ground, to his maintaining the action. The court, however, expressly recognize the rule of the common law in this respect, as to choses in action being applicable to policies of insurance; for the late Chief Justice Tilghman, in delivering his opinion, mentions the case of Gourdon v. Ins. Co. of N. A., and says: "The charge of Chief Justice Shippen, delivered with the approbation of all the judges, established a principle decisive of the question now before us; that is to say, that a policy of insurance was to be considered as other choses in action, which are not assignable by the common law, but only in equity; and consequently the assignee takes it liable to all defalcations, to which it was subject before the assignment." The defendant being willing there that the plaintiff should maintain his action in his own name, subject to the defalcation claimed by the defendant, the court could not, with any propriety, have turned the plaintiff out of court, because he had brought the action in his own name instead of that of his assignor; the objection being purely technical, the defendant had

a right to waive it, and to permit the plaintiff to try it upon principles of equity and according to its intrinsic merits.

In support of this present action, the case of The Maryland Ins. Co. v. Graham, in 3 Har. & J. 62, has been cited, and much relied upon. It is clear, however, from the report of it, that the court sustained the action there, upon the ground that the plaintiff was expressly named in the policy; which is not the case here. It would, therefore, rather seem to support the rule laid down above, that covenant can only be maintained in the name of a party to, or the covenantee named in the deed, or his legal representatives.

It may be admitted, however, that where a broker or other person causes himself to be insured on an interest " as well in his own name (which is expressly mentioned therein), as in the name and names of all persons whatsoever, to whom the same may in any way appertain," being the form used here, and considered of the like import, with a shorter form, frequently used in this county, wherein the party effecting the policy is insured for himself and whom it may concern," it is competent for those persons to whom the interest insured appertains, though not expressly named in the policy, to maintain in their own námes, actions of assumpsit to obtain an indemnity for losses occasioned by means of the perils insured against. But this is upon the ground that not only the consideration, to wit, the premium paid for the insurance, is considered as having moved from him, but likewise upon that of his being the party actually injured by the loss. It is a general rule, that the action of assumpsit accrues to the person from whom the consideration for the promise proceeded, and who will be the party injured if not fulfilled; and, therefore, in his name only can it be maintained: See Blymire v. Boistle, 6 Watts, 182 [31 Am. Dec. 458], and the cases referred to by Mr. Justice Sergeant, in delivering the opinion of the court. But in regard to an action of covenant which is founded upon a deed, the moving or original cause for executing it is not looked to for the purpose of maintaining the action, because the sealing and delivering the deed is a sufficient consideration for that; and renders it binding upon the covenantor to the covenantee alone, though the consideration which actually induced the making of the covenant, should appear in the deed to have come from a third person; and whether the covenant or obligation created thereby appears to be for the benefit of the covenantor or a third person, the action must be brought in the name of the

covenantee: Shep. Touch. 369; Bro. Obl. 72. Joseph Flemming being the only covenantee named in the deed here, we therefore think that no action can be supported upon it against the defendants, unless it be brought in his name.

Now, as to the second objection: There can be no question here, but the form of the policy is sufficient to include and protect the interest of the plaintiff, provided it was intended to be so at the time of its being effected. All the authorities on the subject would rather go to show that the intention of the party effecting the insurance, at the time of doing so, ought to lead and govern the future use of it; and that no one can by any subsequent act, entitle himself to claim the benefit of it without showing that his interest was intended to be embraced by it when it was made. The case of Boduy v. Union Ins. Co., Cond. Marsh. 473, was decided on this principle as it appears to me. There the assured, supposing three thousand dollars to be shipped on his account in the West Indies, insured that sum in his own name, but using the form "and for whom it may concern," and it happening that only the sum of eleven hundred and twentyfive dollars was shipped on his account, another person, Boduy, having money on board the vessel, wished, no doubt, by the consent of the person in whose name the policy was made, to recover compensation for the loss of his specie under the same policy; but Judge Washington ruled that he had no claim, as he neither procured the insurance himself, nor authorized it to be made; and it appearing not to have been intended for him. Mr. Phillips, in his treatise and collection of cases on this subject, lays down the rule in these words, page 57: "In many policies the insured is so described, that any person may be comprehended and avail himself of the contract, by proving his interest and showing that the policy was intended for him." And again, on page 61, after giving an abstract of several cases referred to by him, and the decisions thereon, where the form of the policies was "for whom it might concern," or in terms of like import, he observes, "from these cases it seems, that a policy containing this general description may inure to the benefit of the person effecting it, or to that of any other person for whom he intends it, and who has requested him to effect it, or adopts it when made." This would not only seem to be the fair deduction from the authorities on the subject, but to be supported likewise by reason, principles of sound policy, and natural justice. For if no evidence were required to be given, tending either to show that the plaintiff had, previously to the policy's