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An affignment of the policy to one who has the effects in fured, is void.

no intereft in

Upon the death of the insured,

the policy is

continued to his reprefentative.

The contribufocieties

tion

СНАР. IV.

Of the Affignment of the Policy.

A POLICY of infurance, being a chofe in action, is, in ftrictnefs, not affignable at law. But, like every other chofe in action, it may be affigned in equity; and courts of law now take notice of fuch affignment; fo that the ancient rule of the common law, being often found injurious to the interefts of a commercial country, is now, in a manner, difregarded, or at least evaded. But the mere affignment of the policy, would be of little avail, without an affignment of the fubject matter of the infurance alfo. The affignee could derive no benefit from the policy, unless the intereft of the infured were transferred with it; becaufe, as we have already fhewn, the infured must not only have an intereft in the fubject matter of the infurance, at the time of infuring, but also at the time the lofs happens. (a)

In the printed propofals of all the offices it is declared that, upon the death of an infured, his intereft in the policy fhall be continued to his reprefentative to whom the property infured belongs, provided fuch reprefentative, before any new payment be made, procure his right to be indorsed on the policy at the office.

In the propofals of the Hand in Hand fire-office, it feem to allow is declared, that if the premises infured should be affigned, the affignment the aflignment must be entered at the office; and that of their policies without affignments of policies fhall be entered at the office, exprefs per- within 42 days after they are executed; or else the affignee fhall have no benefit thereby. And in the pro

million.

any

pofals

(a) Per Lord King, Ch. in Lynch v. Dalzell, inf. 698; Per Lord Hardwicke Ch. in the Sadler's Company v. Badcock, inf. 700; vid. fup. 684.

pofals of the Union fire-office, it is declared, that every member transferring his policy, fhall, within three months, give notice to the directors, and bring their policies to the office, to have fuch transfer indorfed.

The Westminster office merely defires that the affignment shall be entered at the office as foon as poffible. So that, it would feem, the policies of thefe three contribution focieties may be affigned, without any exprefs permiffion from the respective offices for that purpofe; and that it is fufficient if the affignment be brought to the refpective offices to be entered.

But the other offices give notice, generally upon the policy, that it fhall be of no force if affigned, unlefs fuch affignment be allowed by an entry in the books of the office, or indorfed on the policy. So that it feems to be a fettled rule in all the offices, not to allow any transfer of any policy, without the confcnt of the managers. This is perfectly reasonable. The offices may choose for whom they will infure; they are not obliged to infure for every person that may apply to them. In fome instances, character may be a fufficient reafon for a refufal. But the offices would be deprived of this option, if any perfon insured might affign his policy to whom he pleased, without their concurrence, This will appear from the following cafe.

And it

On the 28th of July 1721, one Richard Ireland obtained a policy from the Sun fire-office for the insurance of his house, being the Angel inn at Gravefend, with his goods therein, from lofs and damage by fire: was agreed, that fo long as Ireland thould pay five fhillings a quarter, the fociety would fatisfy the faid Ireland, his executors, adminiftrators, and affigns, his lofs not exceeding 1000 1. according to the exact tenor their printed propofals. Some confiderable time afterwards, Ireland died, leaving his fon Anthony his fole executor Who brought the policy to the office, and had an indorfement made thereon, that the fame belonged to him; and he afterwards paid one year's premium up to Chriftmas 1727. In August 1727, the houfe was destroyed by fire; and fome time afterwards, the plain

of

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infured affigns the policy to A. figns to him his intereft in the policy. Thefe affignments of the policy being

and B. alfo af

fire happened,

and without the confent of the office, the affig

nee cannot re

cover the lofs

under it.

other v Dalzell

and others, 3 Bro. Parl. Ca 497

made after the tiffs applied to the office, and alledged that they had purchafed the house and goods of Anthony Ireland; that the fame were their property at the time of the fire; and that they had an affignment of the policy made to them, at the fame time that the house and goods were affigned; and they produced an affidavit from Roger Lyn.b and an- Lynch, in which he fwore that their lofs, by the burning of the house, amounted to 500 l. and upwards; and upon this affidavit was indorsed the ufual certificate from the minifter and churchwardens, &c. But neither in the affidavit or certificate, was any mention made of any lofs being sustained by the plaintiffs by the burning of any goods; nor was any affidavit made by Anthony Ireland, that he had fuffered any lofs.-The plaintiffs, however, infifted that the office hould pay them 1000 1. for their lofs by the burning of the house and goods; and they filed a bill in chancery, fetting forth, that Anthony Ireland, on the 24th of June 1727, for 250 1. afligned to them a leafe of the house and ftables; but, that the goods, for which the plaintiffs, as they alleged, were to pay 500 1. being intended for one Thomas Church, who was to hold the inn under them, Ireland, by bill of fale of the fame date, fold the fame to Church for his own use. The bill alfo ftated the affignment of the policy to the plaintiffs; and that, although the bill of fale of the goods was made to Church; yet that the plaintiffs paid the pyrchafe money, and Church affigned the bill of fale to them for fecuring it; and also released to the plaintiffs his interest in the policy.-The defendants, by their anfwer, alleged that the affidavit produced was not agreeable to the propofals; that no affignment of the policy was made to the plaintiffs, nor any affignment of it made to them by Church, till after the fire. They infifted that the policies iffued by the office were not, in their nature, affignable, being only contracts to make good the lofs which the contracting party himself fhould fuftain; and that no other perfon was entitled to any benefit from it. The caufe proceeded to iffue; and witneffes being examined on both fides, it appeared upon the plaintiff's own evidence, that the agreement for the afflignment of

the

the policy, (if any,) was not till after the agreement for the purchase of Ireland's term in the house; and that the affignment of it, though bearing date before, was not made till fome time after the fire: So that the agreement for afligning the policy was a voluntary conceffion on the part of Ireland, and independent of the bargain for the house, and not made till after Ireland's interest in the house was determined; nor carried into execution till after the lofs had happened. And as to the plaintiff's property in the goods, they proved an affignment from Church to them, as a security for 300 1. ; but omitted to state when this affignment was made, though the defendants, by their anfwer, had put the time in iffue. Upon this cafe, the Lord Chancellor King difmiffed the plaintiff's bill.-He faid,-" Thefe policies are not insurances of the specific things mentioned to be infured; nor do fuch infurances attach on the realty, or in any manner go with the fame, as incident thereto, by any conveyance or affignment: But they are only fpecial agreements with the perfons infured, against such lofs or damage as they may fuftain. The party infured muft have a property at the time of the lofs, or he can fuftain no lofs: And confequently can be entitled to no fatisfaction. There was no contract ever made between the office and the plaintiff's for any infurance on the premifes in queftion. Not only the exprefs words, but the end and defign of the contract with Ireland, do, in cafe of any lofs, limit and reftrain the fatisfaction to fuch lofs as fhould be sustained by Richard Ireland only; and the indorsement on the policy transferred that right to his executor Anthony Ireland only. Thefe policies are not in their nature affignable; nor is the intereft in them ever intended to be transferable from one to another, without the exprefs confent of the office. The tranfactions in the prefent cafe, by changing the property backwards and forwards, and rendering it uncertain whofe the true property really was, raise a suspicion, and fully juftify the caution of the office in preventing the affignment, without the confent of the managers; which method is purfued by all the infurance offices. Befides, the plaintif's

The policy does not pass with the effects in

fured.

The policy is

only aflignable with the con

fent of the office.

an

A leffee having unexpired term of fix

years and an

half in a houfe, infures for fev

en years. After

the term expired the houfe is

burnt, and af

terwards, but

before the expiration of the policy, the infured affigns it

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claim is, at beft, founded only on an affignment never agreed for, till the perfon infured had determined his intereft in the policy, by parting with his whole property, and never executed till the lofs had actually happened." -Upon appeal to the Houfe of Lords, the decree of the Court of Chancery was affirmed.

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The fame principles were adopted in another cafe, where one Anne Strode, having fix years and a half to come in a leafe of a houfe from the plaintiffs, on the 27th of April 1734, infured the houfe for 400 1. in the Hand in Hand fire-office, for feven years, and thereby became a proprietor; and, on paying twelve fhillings down, and 3 1. fome time after, the company agreed, out of their contribution ftock, to pay the faid fum of 400 I. to her, los crecutors and affignees, fo often as the house suld be bar down during the faid term, unless the directors fould rebuild the fame;' and on the back of the policy it was indorfed, that if the policy fhould be affigned, the affignment must be entered within 21 days after the • making thereof.—Mrs. Strode's leafe expired at Midfummer 1740; the houfe was burnt down in January 1741; and the affigned the policy to the plaintiffs on the 23d of February 1741. The plaintiffs tendered the affignment Sadler's to the defendants to be entered in their books, but they v refufed to accept it. The company, in 1738, which was fubfequent to Mrs. Strode's policy, made an order, That

to the rever

fioner, without the concur

rence of the office. The af fignee cannot claim any ben

efit under the
policy.

The
Company
Badcock and

others, 2.

554.

whereas policies expire upon the property of the in'fured's ccafing; if there is no application of the infured to affign, or to have the lofs made up, then the perfon having the property, may infure the faid houfe in the faid office, notwithstanding the term for which the faid houfe was originally infured is not expired.' The queftion upon this caufe was, whether the plaintiffs, the affignees of Mrs. Strode, were entitled to the benefit of the policy.-The court determined that they were not entitled to any benefit under it. The Lord Chancellor Hardwicke faid;"During the progrefs of this caufe, while the defendants feemed to depend chiefly upon the fubfequent order,

I was

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