Page:Federal Reporter, 1st Series, Volume 9.djvu/546

 UNION INS. 00. D. GLOVBB. 631 �admit that It bear^ his signature, but he testifles that he bas not the least racollection of it, and asserts that, if he did give it, it was that E. K. Glover miglit have authority from him to collect $1,000 from the company if it de- clined to pay a total loss, but was ready to pay that sum as for a partial loss. ihis explanatlon is of no moment, as on the seveath of July, two days prior to the order, C. C. Glover bad given E. K. a power of attorney, which author- ized him to collect the policy, and under which he was fully empowered to receive any sum the company might be willing to pay, althougli not the full amount of the policy. �Mrs. Sberman, a sister of C. C. Glover, with her busband, have been intro- duced as witnesses by him, but the court does not find in their testimony anything which would justify the court in discrediting the sworn statements of both B. K and William H. Glover that the $1,000 was a personal loau made to C. C. Glover by E. K. Glover, the pay ment of which was securedby the order on the company and the delivery of the duplicate policy. The counsel of C. C. Glover insist that if such should be the flnding of the court, still E. K Glover was not thereby authorized to maintain an action on the policy in the name of 0, C. Glover and collect from the company the amount 80 loaned to C. C. Glover; that the order wUs not an assignment of the policy and of whatever might be collected therefrom, but was for a portion only of the fund, and did not create an equitable lien in favor of E. K. Glover for the amount of the order. �In support of his views the learned counsel relies on Palmer v. Merrill, 6 Cnshing, 287. �That case was an action at law to recover from an administrator a portion of the amount by him collected from an insurance company on a policy of insurance on the life of defendant's intestate for $1,000, a portion of this sum, $400, having been assigned to the plaintifi by an order writter^ on the policy, but the policy had always been retained by the intestate. It did not appear that plaiutiff, prior to the death uf the insured, had any knowledge of the assign- ment or had ever seen the policy, so that there was never any deliv- ery to him of the policy or of the assignment. The court hold that the action could not be maintained, but the case is essentially differ- ent from the present, which is a bill in equity, by the holder of the fund, against the assignor and assignee, to -whAm the policy and order were both delivered. �The question now for decision is not whether E. K. Glover can maintain his action in the state court to recover from the insurance company the $1,000 loaned by him to C. C. Glover or the full amount due on the policy, but it is whether, in this bill of inter- pleader brought by the company, the court will determine the eqtiita- ble rights of the respective parties, and whether E. K. has acquired ��� �