so now, when he sues in his own name by virtue of the Sect. 176. statute, he does so subject to those same rights, they being expressly preserved by it to the defendant (f). The Court of Appeal have held that 31 & 32 Vict. c. 86, was merely intended to amend procedure, and not to alter the rights of the parties to the policy. Therefore, in an action by the assignee of a policy, the insurers were not allowed. to set off a debt incurred with them by the assured after the assignment; for the claim for a loss under a policy is for unliquidated damages, to which a set-off could not be pleaded, either under the statutes of set-off or in equity (g). form of 177. Assignment of a policy of marine insurance has been Mode and hitherto made either by writing indorsed on the policy, or by assignment. delivery merely of the policy with intention to assign it (h). The Act of 31 & 32 Vict., whilst giving a form of assignment, neither requires that form to be followed, nor makes indorsement imperative, not even as a condition of taking advantage of its provisions (i). the plaintiff may set out the true facts by way of reply; De Pothonier v. De Mattos (1858), E. B. & E. 461; and the Courts have interfered upon motion to protect the rights of the parties. See Gibson v. Winter, supra, and the cases therein cited in the judgment. (f) 31 & 32 Vict. c. 86, s. 1. "The defendant in any action shall be entitled to make any defence which he would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected." The Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 6, making choses in action assignable with a complete transfer of remedies to the assignee, does it with this reservation-"Subject to all equities which would have been entitled to priority over the right of the assignee.' Notice of the assignment is required by this Act, which is not necessary (g) Pellas v. Neptune Marine Ins. (h) The statement that an assignment may be made by simple delivery of the policy is retained on Arnould's authority (see 2nd ed. p. 211). The editors have, however, been informed that the present practice is to indorse the assignment on the policy. (i) The form given by the Act is as follows: - I, A. B., of, &c., do hereby assign unto C. D., &c., his executors, ad Sect. 177. Time of indorsement. Rights of parties after assignment of the insurable interest. Powles v. When the assignment is made by indorsement, this may be put upon the back of the instrument, either at the time of the transfer of the property insured, or at any other time between the making of the policy and the bringing of the action (). 178. An absolute sale or transfer by the party originally insured of all his interest in the insured property before the loss, incapacitates him, or the party who has effected the insurance for him, from recovering on the policy on his own account; nor can he, or the party who has so effected the policy, sue thereon as trustee for the purchaser unless there have been either an assignment of the policy, or something which the Courts will consider as equivalent thereto, or as evidence of an agreement or understanding between the vendor and vendee that the policy should be kept alive for the benefit of the latter (7). Thus, where a part owner of a ship, after insurance and before loss, had by bill of sale absolutely transferred his share to a third party who was an entire stranger to the insurance, it was held that the plaintiffs, who had effected the policy under the vendor's directions, could neither recover as his agents under a count averring interest in him—for he had no interest left at the time of loss-nor as trustees for the purchaser of his share, because there were no facts stated in the case to warrant the inference that the policy had been handed over with the bill of sale, or that there had been an order on the effected, much less after the loss has happened, can be set up as an answer by the underwriters against a claim for such loss," i. e., where there has been an assignment of the policy. (7) Hibbert v. Carter (1787), 1 T. R. 745; Delaney v. Stoddart (1785), ibid. 22; Powles v. Innes (1843), 11 M. & W. 10; North of England Oil Cake Co. v. Archangel Maritime Ins. Co. (1875), L. R. 10 Q. B. 249, stated ante, s. 175. broker to hand it over, or any understanding that the policy Sect. 178. should be kept alive for the purchaser's benefit (m). assured in interest 179. Nothing short of an absolute transfer, however, of the Right of insured property, will preclude the party originally insured whom some from recovering on the policy, for the benefit of the transferee, remains. even where there has been no assignment of the policy, and nothing that amounts to it. Carter. A mere pledge of the bill of lading, as a collateral security, Hibbert v. does not divest the assured of all his insurable interest. Accordingly, where Kerr, having consigned a cargo of produce to this country, and directed an insurance to be made thereon by the plaintiffs, his correspondents in London, subsequently, but before the policy was actually effected, assigned the bill of lading over to Dellprat, the Court of King's Bench, proceeding upon the ground that an indorsement of the bill of lading passed the whole property, at first held that the plaintiffs could not recover on the policy ;—not as agents for Kerr, because he had absolutely divested himself of all interest before the policy was effected, nor as trustees for Dellprat, because there had been no transfer to him of the policy and no agreement to transfer it. Subsequently, however, on affidavits that Kerr had no intention to pass the whole property by indorsement of the bill of lading, but only to bind it to the extent of the net proceeds, as a security for Dellprat's debt, which debt had since been paid on Kerr's behalf, a new trial was granted, and on the second trial, the facts appearing as set forth in the affidavits, the plaintiffs had a verdict for the whole amount of the loss (n). 180. An assignee of a policy can only avail himself of the insurance to the extent to which the assignor has agreed to assign his rights to him. A ship was chartered with grain from Galatz to Emden for orders, to discharge in a port of the United Kingdom, (m) Powles v. Innes (1843), 11 M. & W. 10. (n) Hibbert v. Carter (1787), 1 T. R. 745; acc. Alston v. Campbell Right of assignee limited by the assignment. Sect. 180. and the cargo-owners effected an insurance on the grain from Galatz to Emden and thence to the United Kingdom. The cargo was sold while on the voyage to Emden, the price "including freight and insurance to Emden," and the bill of lading and policy were delivered to the buyer. A loss having occurred between Emden and the port of discharge in the United Kingdom, the Court of Exchequer held that the buyer was only entitled to the insurance as far as Emden, and consequently that he could not recover against the underwriter for the loss (o). Consent of insurer unnecessary. The London floating conditions. Unless the policy (as is usually the case in insurances by mutual associations (p)) imposes such a condition, the consent of the underwriter is never necessary to the validity of an assignment of it (q). 181. Where a policy is assigned to the purchaser of the insured property, it is usual to indorse on it a memorandum to the effect that "the interest in this policy is transferred" to the purchaser. When a floating cargo (i.e., a cargo at sea) is sold in London, it is generally on what are called "The London Floating Conditions," which comprise the delivery over to the purchaser for his benefit of the policies which have been effected on the cargo, the understanding being that it is insured to the full value, the price paid being all the higher to include the amount paid by the vendor for insurance. If upon such a transaction it be objected by the buyer that the vendor has not performed the conditions of the contract in consequence of delivering over policies appa (0) Ionides v. Harford (1859), 29 L. J. Ex. 36; see also Ralli v. Universal Marine Ins. Co. (1862), 31 L. J. Ch. 313, post, s. 181. (p) See, e.g., Laurie v. West Hartlepool Thirds Indemnity Association (1899), 4 Com. Cas. 322. (9) In Sparkes v. Marshall (1836), 2 Bing. N. C. 761, it was found as a fact that the defendants did not assent to the transfer of the pro perty, or to the assignment of the policy. This practice of merchants with regard to marine policies accounts for the absence from the 31 & 32 Vict. c. 86, of any such provision as is to be found in the Judicature Act, 1873, requiring notice to be given of the assignment of the chose in action. See 2 Duer, 62, 68, for clauses in American policies restricting the right of assignment. rently short of the full value of the cargo, the question is one Sect. 181. depending so much upon fact that it ought to go to the jury (r). But where a cargo of wheat, still afloat, was sold at a depreciated price, and the vendor indorsed over the policy for so much only as would cover the depreciated price, being part merely of the sum insured in a valued policy, it was held, as a matter of construction on the bought note taken in connection with the existence of the policy at the time of the contract, that the buyer was entitled to the policy for the full sum at which the wheat was originally insured under it (s). (r) Tamvaco v. Lucas (1861), 1 B. & S. 185; 30 L. J. Q. B. 234; in error (1862), 3 B. & S. 89; 31 L. J. Q. B. 296. (s) Ralli v. Universal Marine Ins. |