POLICIES OF
ASSURANCE.

Receipt.

sealing and delivery of these presents, to the said A. B. paid by the said C. D., (the receipt of which said sum of £8, making together with the said sums of £262, £320, and £400, the said purchase-money or sum of £990, she the said A. B. doth hereby acknowledge, and of and from the same sums and every of them, and every part thereof respectively, doth acquit, release, and discharge the said C. D., his heirs, executors, administrators, and assigns, for ever, by these presents), and of the covenant hereinafter contained on the part of the said C. D., to pay the same sums, she the said A. B. hath assigned, and by these pre- Assignment. sents doth assign, unto the said C. D., his executors, administrators, and assigns, ALL THAT, the said policy of of the poassurance, effected in the said Assurance Office, and licies. hereinbefore particularly mentioned, and all and every the bonuses and additions, sum and sums of money to become payable or to be received under or by virtue of the same, and the full benefit of the same (c); AND ALSO ALL THAT the said policy of assurance, effected with the said Assurance Society, and hereinbefore particularly mentioned,

(c) In the case of Courtney v. Ferrers, (1 Sim. 137), the facts were as Courtney v. follows: E. U. having effected an assurance on his life for £3,000, by Ferrers. indenture, dated the 23rd of April, 1787, assigned to M. G. and G. R. the said policy of assurance, and all sums of money, benefits, and advantages, to arise, accrue, or become due or payable upon or by virtue of it in any manner whatsoever;" upon certain trusts declared by a deed of even date, and under which, before the year 1810, C. M. U., the daughter of E. U., had become absolutely entitled. Before that year, additions had been made by the assurance office to the £3,000, and by a settlement on the marriage of C. M. U., dated the 23rd of January, 1810; C. M. U. assigned to trustees, "all that the sum of £3,000, assured by the before-mentioned instrument, or policy of assurance, to be paid to the said M. G. and G. R., upon the decease of the said E. U." upon certain trusts under which C. M. U. became entitled to appoint the fund by will. C. M. U. by her will, dated the 23rd of July, 1810, gave and bequeathed to the said E. U. the sum of £1,000, part of the said sum of £3,000, and the remaining sum of £2,000 she gave and bequeathed equally between T. U. and J. U. C. M. U. died in 1811, and E. U. in 1825, and at his death £9,270 became payable under the policy. It was held that the whole sum was divisible amongst E. U., T. U., and J. U., in shares proportioned to the interests given them in the £3,000.

POLICIES OF
ASSURANCE.

And all the estate, &c.

Power of attorney.

Habendum to purchasers.

and all and every the bonuses and additions, sum and sums of money to become payable, or to be received under or by virtue of the same, and the full benefit thereof: AND ALL the estate, right, title, interest, property, claim, and demand whatsoever, both at law and in equity, of her the said A. B., of, in, to, out of, or upon the same premises, and every of them, and every part thereof: TOGETHER WITH full power and authority to ask, demand, sue for, recover, and receive, and give effectual receipts and discharges for the said sum or sums of money, and every part thereof, in the name or names of her the said A. B., her executors or administrators (d): TO HAVE, HOLD, RECEIVE, AND TAKE the said policies of assurance, sums of money, and all and singular other the premises hereinbefore assigned or expressed, and intended so to be, unto the said C. D., his executors, administrators, and assigns, for his and their own use and benefit, but subject to the payment of the said sums of £262, £320, and £400, and interest secured upon the same premises respectively, as hereinbefore is mentioned: AND THE SAID A. B. doth hereby, for herself, her heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, that the po- in manner following, (that is to say), that for and notlicies are good. withstanding any act, deed, matter, or thing whatsoever, by her the said A. B. made, done, committed, or executed, or knowingly or willingly permitted or suffered to the contrary, the said policies of assurance, at the time of the sealing and delivery of these presents, are good, valid, and effectual policies of insurance for the sums of £ £ respectively, and are in full force unforfeited, unsurrendered, and in nowise vitiated, or become void or voidable; And that for and notwithstanding any such act, deed, matter, or thing as aforesaid, she the said A. B. now hath in herself good right, full power, and lawful and absolute authority to assign the said policies, sums of money and premises hereinbefore assigned, or expressed and intended so to be, unto the said C. D., his executors, administrators,

Covenants by vendor.

-for right to assign.

(d) See supra, p 253, n. (b).

and

POLICIES OF
ASSURANCE.

-and not to

and for fur

and assigns, in manner aforesaid, according to the true intent and meaning of these presents; And also that she the said A. B. shall not nor will, at any time hereafter, vitiate the podo, commit, or suffer any act, matter, or thing, whereby licies. or by reason or means whereof, the said policies of assurance, or either of them, shall or may be vitiated, or become void or voidable, or whereby or by reason or means whereof the said C. D., his executors, administrators, or assigns, shall or may be prevented or hindered from recovering or receiving the money intended to be thereby respectively assured, or any part thereof; AND ALSO, that she the said A. B., her executors and administrators, and all ther assurance. and every other person or persons whomsoever, having or claiming, or who shall or may have or claim any estate, right, title, interest, property, claim, or demand whatsoever, either at law or in equity, of, in, to, out of, or upon the said policies and sums of money and premises hereinbefore assigned, or expressed and intended so to be, or any of them, or any part thereof, by, through, under, or in trust for her the said A. B., her executors or administrators, shall and will from time to time, and at all times hereafter, upon the request and at the costs of the said C. D., his ecutors, administrators, or assigns, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful acts, deeds, things, devices, assignments, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely assigning and assuring the said policies, sums of money and premises hereinbefore assigned, or expressed and intended so to be, and every part thereof, unto the said C. D., his executors, administrators, and assigns, (subject to the payment of the said sums of £262, £320, and £400, and interest secured on the same premises respectively, as aforesaid), and enabling the said C. D., his executors, administrators, and assigns, to recover, receive, and obtain payment of the moneys intended to be assured by the said policies of assurance respectively, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonably advised, or devised and required: AND THE SAID C. D. doth hereby for himself, his heirs, execu

ex

Covenant by purchaser to pay mortgage debts.

ASSURANCE.

POLICIES OF tors and administrators, covenant with the said A. B., her executors and administrators, that he the said C. D., his executors or administrators, shall and will pay the said sums of £400, £262, and £320, and each of them, and all interest henceforth to grow due for the same respectively, and shall and will from time to time, and at all times hereafter, save, defend, keep harmless and indemnified, the said A. B., her heirs, executors, and administrators, and every of them, their and every of their estates and effects, of and from the said sums of £400, £262, and £320, and every of them, and every part thereof, and all interest for the same, and of and from all actions, suits, accounts, reckonings, claims, and demands whatsoever, either at law or in equity, for or in respect of the same principal sums and interest, or any part thereof respectively (e). IN WITNESS &c. (f).

Notice of assignment to be given to the

assurance so

ciety.

Notice of assignment of choses in action.

To whom no

tice should be given.

(e) See infra, p. 389, n. (1).

(f) Every person intending to purchase or take a mortgage of a policy of assurance, should inquire of the secretary, or public officer, of the society, whether notice has been given to the society of any previous assignment or charge upon the policy, and should immediately after the execution of his own assignment or security, give notice of it to the society. (See Williams v. Thorp, 2 Sim. 257).

Personal property passes by delivery of possession, and if one man having the right of possession leaves the actual possession in another, he cannot be allowed to recover from third parties who may have given a valuable consideration for the property to the ostensible owner of it. If he, who has the right, does not take possession, he does not follow up the title, and must take the consequences of his own laches. A chose in action does not admit of actual possession, but the assignee of such an interest must do every thing towards obtaining possession which the subject admits of; he must do that which is tantamount to obtaining possession, by placing every person who has an equitable or legal interest in the matter under an obligation to treat it as his property. For this purpose, he must give notice to the legal holders of the fund; and if he omit to do so, he is guilty of the same degree and species of neglect, and must suffer the same loss, as he who leaves a personal chattel, to which he has acquired a title, in the actual possession and under the absolute control of another person. (See 3 Russ. 22, 23).

Thus, on the assignment of a simple contract debt, or a bond debt, notice must be given to the debtor. (Ryali v. Rowles, 1 Ves. sen. 371;

• See, however, Reeves v. Capper, 5 Bing. N. C. 136.

1 Atk. 382: Ex parte Monro, Buck, 300; Ex parte Burton, 1 Glyn & Jam. 237; Ex parte Usborne, Id. 358; Ex parte M'Turk, 2 Dea. 58). On the assignment of a sum of money, or of an interest in a sum of money, in the hands, or invested in the names of trustees or executors, notice must be given to the trustees. (Dearle v. Hall, Loveridge v. Cooper, 3 Russ. 1; Foster v. Blackstone, 1 My. & Ke. 297; S. C. nom. Foster v. Cockerell, Clark & Finn. 456; Smith v. Smith, 2 Cro. & Mee. 231; Timson v. Ramsbottom, 2 Keen, 35). If the interest assigned be a fund in court, an order must be obtained that it shall not be transferred without notice to the assignee, and the order must be left at the Accountant-General's Office, and entered. (Greening v. Beckford, 5 Sim. 195). But this, coupled with an order to restrain the payment of the dividend, is the only relief that can be had upon petition, unless by consent; any ulterior relief can only be had upon a bill filed for the purpose. (Cook v. Collingridge, 1 C. P. Cooper, 255). On the assignment of the freight and earnings of a ship, the assignee must give notice to the person from whom they are to be received. (Gardner v. Lachlan, 6 Sim. 407; 8 Sim. 123). If a person have shares standing in his name in the books of a public company, and deposit the certificates of the shares as a security, notice of the deposit must be given to the company. (Ex parte Spencer, 1 Dea. 468; Ex parte Masterman, 4 Dea. & Chit. 751; Cumming v. Prescott, 2 You. & Coll. 486; see, however, Ex parte Vauxhall Bridge Company, 1 Glyn & Jam. 101; Ex parte Walkins, 2 Mon. & Ayr. 318; Ex parte Brown, 3 Dea. 91; Ex parte Richardson, 3 Deacon, 496). On the assignment or deposit of a policy of assurance notice must be given to the society. (Williams v. Thorp, 2 Sim. 257; Ex parte Colvill, Mont. 110; Ex parte Stright, 2 Dea. & Chit. 314; S. C. Mont. 502; Ex parte Carlis, 4 Dea. & Chit. 354; Ex parte Waithman, Id. 412; Ex parte Tennyson, 1 Mont. & Bligh, 67).

POLICIES OF
ASSURANCE.

The result deduced from the preceding cases is, that an assignee of a Notice gives chose in action, who has not given to the proper persons sufficient notice of priority. his assignment, will be postponed to a subsequent assignee, who has given such notice, and to the assignees under a fiat in bankruptcy against the assignor. The priority of claim is entirely regulated by the date of the notice. It is settled, too, that, if a depositary of a bond or other specialty, or of the certificates of shares, or of a policy of assurance, has not given the notice required, he cannot make a claim good as against the assignees under a fiat in bankruptcy; (see the cases, supra); but it would seem that such a depositary, if prior in point of time, would have a superior claim to a particular assignee who gave notice, but omitted to demand possession of the documents. For it is laid down that delivery is as essential as notice; and, neither party having a complete title, the first in point of time would be preferred. (See 3 Russ. 27; 1 Atk. 177). Of course every assignee should insist upon having the possession of the documents, as his title cannot be deemed safe or perfect without them. It should be understood, too, that this doctrine of notice applies only to VOL. III.

CC