2 agreement," and on that account refuses to award him expenses in spite of Oct. 24, 1907. his success in the action. The Lord Ordinary cannot have meant to decide Selkirk v. that the defender's signature was obtained by the pursuer's representations, Ferguson. since he finds that his conduct in signing was inexcusable. The judgment Lord Kinnear. of the Lord Ordinary therefore comes to rest upon the opinion in law which he expresses when he says,-"However one must condemn Ferguson's conduct at this stage, it is impossible to come to any other conclusion than that he signed a document in terms materially differing from those of the document which he believed he was signing. It is no question of the misunderstanding of the import and effect of the document, it was error as to the document itself, and I cannot, therefore, hold Ferguson to be bound by his signature." I understand this to mean that the contract actually signed by Ferguson was not his deed, because he believed he was signing an instrument of a different character. Now, there is authority to the effect that when a man signs one document thinking it to be another and different document, he is not bound by his signature. The early English case to which the Lord President referred-Thoroughgood's case1-is an excellent illustration. There may be an element of fraud in such cases, but in the more recent decision of Foster v. Mackinnon, the law is expounded in a sense which seems to coincide with the Lord Ordinary's view, for it is said that an instrument, executed in the belief that it is one thing while in fact it is another, is invalid, not only on the ground of fraud, but on the ground that the mind of the signer does not accompany the signature, or in other words, that he never intended to sign, and in contemplation of law never did sign the contract to which his name is appended. But this is quite a different case. The defender knew the contract that he was signing. He knew that alterations had been made on the draft, and that the document which he was asked to sign was the deed so altered. He did not know what the alterations were, but he asked if they were material, and on being told by Mr Slark that they were not, he thereupon signed the deed. In these circumstances to say that he signed a totally different deed from the one which he thought he was signing, appears to me to be out of the question. The deed he signed was exactly the deed which he thought he was signing -to wit, a contract in the terms of the draft he had seen, but with alterations the nature and importance of which he did not know, but which he was content to accept in reliance on the opinion of Mr Slark. The true issue is whether the error under which he signed was induced by the other party to the contract, and on that issue the judgment of the Court must be for the pursuer. LORD DUNDAS concurred. LORD M'LAREN and LORD PEARSON were sitting in the Extra Division. THE COURT recalled the interlocutor reclaimed against, and decerned against the defender for payment to the pursuer of the sum of £250. JOHN ROBERTSON, Solicitor-DAVID PHILIP, S.S.C.-Agents. 1 Thoroughgood v. Cole, 1582, 2 Co. Rep. 9, b. 2 1869, L. R., 4 C. P. 704. No. 9. Oct. 25, 1907. Sime, 1ST DIVISION. JOHN STUART GOWANS (Sime, Sullivan, & Dickson's Trustee), MRS ISABELLA MOIR OR ADAM AND ANOTHER, Defenders (Reclaimers). Administration of Justice-Law-agent-Disclosure of former client's address. Where an agent has ceased to act for a party to a cause, it is his duty to furnish the opposite party's agent with his former client's address, if it is known to him, so as to enable that party to move the Court to proceed if further attendance is not made. In an action for payment at the instance of John Stuart Gowans, C.A., trustee under a trust-deed granted by Sime, Sullivan, & Dickson, stockbrokers, against Mrs Isabella Moir or Adam and her husband, decree was pronounced in favour of the pursuer, with expenses. The defenders reclaimed. When the case was called in the Short Roll on 23d October, no appearance was made for the reclaimers. Counsel for the respondent stated that the reclaimers' agents had informed the respondent's agents that they no longer acted for the reclaimers, but that they had intimated to their former clients that the case was put out for hearing. He further stated that the respondent's agents had requested the reclaimers' agents to supply them with the address of the reclaimers, in order that they might themselves give them intimation of the hearing, but that the address had not been supplied. The Court continued the case till the 25th October, and directed the Clerk of Court to write to the former agents for the reclaimers, requiring them to attend at the bar at 10 o'clock on the 25th in order to explain their failure to supply the respondent with the reclaimers' address. On 25th October a statement was made at the bar by counsel on behalf of the former agents of the reclaimers. LORD PRESIDENT.—We are satisfied with the explanation which has been given. I only wish to add that I should like it to be clearly understood by agents practising in the Court that, in every case in which they cease to act for a party, it is their duty to furnish the agent for the opposite party with the address of their former client, if it is known to them, so as to enable that party to move the Court to proceed if further attendance is not made. For the Court will not deal with the case as if all parties had been properly convened when no appearance is made for one of the parties, and the Court is told that the only intimation he has received of the hearing is intimation from his former agents; the intimation must be given to him by his opponent. The other Judges present were LORD KINNEAR and LORD DUNDAS. Thereafter intimation was duly given to the reclaimers. The case was called on 30th October, when, there being no appear- Oct. 25, 1907. ance for the reclaimers, the reclaiming note was refused, with additional expenses. FRASER & DAVIDSON, W.S., Agents. THE ALLGEMEINE DEUTSCHE Credit Anstalt AND OTHERS, Pursuers (Reclaimers).-Morison, K.C.-Jameson. THE SCOTTISH AMICABLE LIFE ASSURANCE SOCIETY, Defenders Sime, Sullivan, & No. 10. Oct. 26, 1907. Allgemeine (Respondents).-D.-F. Campbell-Spens. Insurance-Life Policy-Process-Declarator ab ante-Declarator of Credit Anstalt right to unmatured policy.-Assignees of an unsurrendered policy of life v. Scottish insurance raised an action of declarator during the lifetime of the insured, Amicable Life in which they called as defenders (1) the insurance company, and (2) former Assurance holders of the policy. The action concluded for declarator (1) that the purSociety. suers were in right of the policy, and (2) that the insurance company were bound, on the sums contained in the policy falling due, to make payment thereof to the pursuers, or the persons deriving right from them. The insurance company alone lodged defences. Held (aff. judgment of Lord Ardwall) that the action so far as directed against the company was incompetent and premature, and should be dismissed, in respect that, until the policy matured, it was impossible to say to whom the proceeds would be payable, and that the insurance company were not the proper contradictors in a question as to whom the policy in the meantime belonged. Lord Ardwall. ON 22d August 1884, a policy of insurance for £2000 was granted 1ST DIVISION. by the Scottish Amicable Life Assurance Society on the life of Oscar Philipp, in favour of Gustav von Portheim, merchant, Austria. By various assignments, into the details of which it is unnecessary to enter, the policy passed into the hands of the Allgemeine Deutsche Credit Anstalt and Erttel Freyberg & Company, both carrying on business as bankers at Leipzig, Germany, who thereafter wrote to the Scottish Amicable Society, asking that they should admit that the Credit Anstalt and Freyberg & Company were the persons in right of the policy. The Society replied that they could express no opinion. as to the validity of the title until they were called on to make a payment under the policy. The Credit Anstalt and Freyberg & Company then raised the present action of declarator, in which they called as defenders (1) the persons to whom at various times the policy had belonged, and (2) the Scottish Amicable Life Assurance Society. The summons concluded for declarator (1) that the pursuers had a good title to the policy in question, "and the contents and proceeds thereof"; (2) that the defenders, other than the Scottish Amicable Life Assurance Society, had no title to the policy; and (3) "that the defenders, the said Scottish Amicable Life Assurance Society, are bound, on the sums contained in the said policy becoming due and payable, to make payment thereof to the pursuers, or to any person or persons who may have derived right from them in and to the said certificate or policy, contents and proceeds thereof." At the date when the action was raised, Oscar Philipp was alive, the policy had not been surrendered, and the premiums payable thereunder had all been duly paid. After narrating the steps by which they had acquired the policy, the pursuers averred :-(Cond. 10) " In virtue of these assignments C Amicable Life Oct. 26, 1907. the pursuers are now in right of the said policy, but the defenders, the Scottish Amicable Life Assurance Society, have refused to acknowAllgemeine Deutsche ledge the right of the pursuers, or to go into the question of title Credit Anstalt until the sum contained in the said policy shall become payable. v. Scottish The pursuers desire to be in a position to deal with the said policy and to sell, assign, or surrender it should they so decide, and to exercise the lawful privileges of a duly qualified assignee recognised under the Society's deed of association. In consequence of the attitude adopted by the defenders to the pursuers it is necessary that their right and title should be judicially declared while the parties to the several transactions above narrated are still alive and their evidence is available." Two of the defenders did not compear, and decree in absence was pronounced against them. Two of the other defenders lodged minutes consenting to decree in terms of the declaratory conclusions of the summons, and decree was pronounced against them accordingly. The remaining defenders, the Scottish Amicable Society, lodged defences, and pleaded, inter alia;—(4) The action as laid is incompetent, in respect that the pursuers have no right to demand a declarator in the circumstances condescended on. (5) The action as laid is premature. (6) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons, in respect that they do not disclose any right in the pursuers to maintain this action against these defenders in respect of a policy which has not yet become a claim. On 2d February 1907 the Lord Ordinary (Ardwall) pronounced this interlocutor:-"Sustains the 4th, 5th, and 6th pleas in law stated for the defenders, dismisses the action so far as the same is directed against the defenders the Scottish Amicable Life Assurance Society, and decerns." * * "OPINION. In this case two firms of bankers in Leipzig, Germany, bring an action against the Scottish Amicable Life Assurance Society, and several persons who have at one time or other been interested in the policy libelled, for the purpose of having it declared that the pursuers have good and undoubted right and title to the extent of one-half each of the policy Number 34,186, dated 22d August 1884, and granted by the said Assurance Society on the life of the defender Oscar Philipp; that the other defenders have no right or title to the policy or to the contents or proceeds thereof, 'or to demand payment of the sums due thereunder when the same may become due by the death of the said Oscar Philipp or otherwise,' and—then follows the important conclusion directed against the Assurance Society alone for the purpose of having it declared that the Society are bound 'on the sums contained in the said policy becoming due and payable, to make payment thereof to the pursuers, or to any person or persons who may have derived right through them in and to the policy.' "By the policy the said Oscar Philipp becomes a contributor to the society, and undertakes payment of the premiums, and on that being done the policy provides as follows:-'then Gustav von Portheim, merchant, Prague, Austria, his executors, administrators, or assigns, shall be entitled to receive out of the stock and funds of the said society, after the death of the contributor, on proof of said death being made to the ordinary Committee of Management, the sum of £2000.' "Since the policy was entered into it has had a somewhat complicated history, as will be seen from the notices set forth in answers 2 to 9 of the defences. A glance at these notices shews that questions of very considerable difficulty, and among these possibly questions as to the law of foreign countries, would require to be investigated if the defenders, the Assurance Scottish The pursuers reclaimed, and argued ;-An action of declarator was Oct. 26, 1907. competent at the instance of any person in whom a right had vested, Allgemeine and who desired to have the validity of his title established.1 It was Deutsche not necessary that his title should in point of fact be disputed, and Credit Anstalt in any case a proper contradictor was before the Court in the person Amicable Life of the Scottish Amicable Society. The great benefit of this form of Assurance action was that it provided a means of determining questions of title Society. while parties were alive and while their evidence was accessible,2 and this consideration was peculiarly applicable to the present case, where the transactions connected with the assignments of the policy had been so complicated. All the parties who could have a claim to the policy had been called as defenders. In any event, the pursuers were entitled to decree in terms of the first two declaratory conclusions of the summons. Reference was also made to the Policies of Assurance Act, 1867 (30 and 31 Vict. cap. 144). Society, were to determine now who is in right of the policy, and accordingly when the pursuers wrote them in 1904 asking that they should admit that the pursuers were the persons in right of the policy, the Society wrote the letter of 17th March 1904, in which they say that they can express no opinion as to the effect or validity of the pursuers' title until they were called on to make a payment under the policy, when the whole title would require to be examined and reported on by the Society's solicitors. The Society having thus refused to pronounce any judgment on the question of title, the present action was brought for the purpose of having the pursuers' title to the policy declared, and the question to be determined now is whether the pursuers were entitled to make the request they did, and whether the present is a competent action against the Assurance Society. No further notice need be taken of the other defenders; two of them have put in consents to decree in terms of the declaratory conclusions of the summons, but none of them are subject to the jurisdiction of this Court, and therefore I propose to consider this action as one directed solely against the Scottish Amicable Life Assurance Society. It appears to me that upon the contract embodied in the policy of assurance, and having regard to the law and customs regarding such contracts, the present action is incompetent as directed against the Assurance Society. What they contract to do is to pay a certain sum on proof of death of the contributor, and they are compelled by Act of Parliament to record all notices of assignations and other documents of change of title to the policy, of which notice may be given to them. This they have regularly done. But there is nothing in the contract entitling any person who may acquire right to the policy to come to the Society before the sums in the policy fall due, and demand from them an acknowledgment of the validity of the title. The onerous nature of the demand thus made upon the defenders is obvious. The pursuers make no secret in the correspondence or on the record that the object of obtaining an acknowledgment or certificate of validity from the defenders is in order that they may realise or otherwise deal with the policy. Now, supposing the defenders to grant an acknowledgment of the validity of the pursuers' title, if the pursuers were thereafter to sell or assign the policy on the faith of that acknowledgment, the purchaser from them would be in a position at 1 Mackenzie's Trustees v. Mackenzie's Tutors, July 1, 1846, 8 D. 964; Harveys v. Harvey's Trustees, June 28, 1860, 22 D. 1310, per Lord Presi dent Inglis, p. 1326; Chaplin's Trustees v. Hoile, Oct. 30, 1890, 18 R. 27; Cairns' Trustees v. Cairns, 1907, S. C. 117. ? Earl of Mansfield v. Stewart, July 3, 1846, 5 Bell's App. 139, per Lord Brougham, p. 160. |