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adopted, and applied to assignments : “When the contract between the assured and the insurer is expressed to be for the benefit of' another, or is made payable to another than the representatives of the assured, it may be sustained accordingly. The same would probably be held in case of an assignment with the assent of the insurers. But if the assignee has no interest in the life of the subject of insurance which would sustain a policy to himself; the assignment would take effect only as a designation, by mutual agreement of the contracting parties, of the person who should be entitled to receive the proceeds, when due, instead of the personal representatives of the assured. And if it should appear that the assignment was a cover for a speculating risk, contravening the general policy of the law, it would not be sustained.” The assent of the insurer, if not required in the policy, must be immaterial as regards the validity of the transaction between the assignor and the assignee. If given, it would only enable the assignee to assert in his own name, instead of that of the assignor, the rights acquired by the assignment. So far as the transaction itself, apart from the circumstances attending it is concerned, taking out a policy payable to a stranger would seem more open to objection, as a gambling transaction, than selling a policy which had acquired an actual value. As the circumstances of the transaction are not disclosed in the report, they must be supposed to have been such as to call for the decision and the remarks which were applied to them in the application of the principle laid down.
In Palmer v. Merrill, ubi supra, where the subject of assignments of the interest in a life insurance is elaborately considered by Chief Justice Shaw, there is no suggestion that any interest of the assignee in the life is necessary to support the assignment, but it is considered as an ordinary assignment of a chose in action.
In Troy v. Sargent, 132 Mass. 408, it was held that the interest of a wife in a policy to her husband on his life, for her benefit, could be taken for a joint debt of herself and husband. Could it not be taken for her sole debt, although the creditor would have no interest in the life insured ? A policy of life insurance is assets which pass to an assignee in bankruptcy, and can be reached by creditors. Is it necessary, when sold by the assignee or creditor, that the purchaser should have an interest in the life insured ?
The general rule laid down in Stevens v. Warren, ubi supra, “ that no one can have an insurance upon the life of another, unless he has an interest in the continuance of that life," and from which the inference that an assignee of a party must have an insurable interest seems to have been drawn, we think, is not strictly accurate, or may be misleading. An insurable interest in the assured at the time the policy is taken out is necessary to the validity of the policy, but it is not necessary to the continuance of the insurance that the interest should continue; if the interest should ceast, the policy would continue, and the insured would then have an insurance without interest. Dalby v. India & London Assur. Co., 15 C. B. 365, and Law v. London Policy Co., 1 Kay & Johns, 223, cited in Loomis v. Eagle Ins. Co., 6 Gray, 396 ; Connecticut Ins. Co. v. Schaefer, ubi supra; Rawls v. American Ins. Co., 27 N. Y. 282; Provident Ins. Co. v. Baum, 29 Ind. 236. The value and permanency of the interest is material only as bearing on the question whether the policy is taken out in good faith, and not as a gambling transaction. *If valid in its inception, it will not be avoided by the cessation of the interest. The mere fact that the assured himself has no interest in the life does not avoid or annul the policy.
We think that the second ruling was correct, and that the fact that the assignee had no insurable interest in the life does not avoid the assignment. It is one circumstance to be regarded in determining the character of the transaction, but is not conclusive of its illegality.
Decree for the defendant Allen.
Read in vena Bic Rocal Preto Poland. Banerodia and fawis.
Note. — In this chapter are collected cases illustrating the rights which may be had in personal property by persons other than the owners. The principal heads under which these rights may conveniently be classed are (1) Taking on Judicial Process; (2) Distraint ; (3) Vendor's Lien ; (4) Bailment; (5) Finding. The law of Vendor's Lien is best dealt with in connection with Sales; and the subject of Distress is omitted.
TAKING ON JUDICIAL PROCESS.
fl answers authorityg laws. Replication abuse
crespass & replevine
peace . there is respass in and
harily; making together and militaria A m
(Reported 2 Rolle, Ab. 561, pl. 4.] PER CURIAM. If a searcher searches certain stuffs, and unpacks them and puts them in the dirt, whereby they are damaged, although the search was legal, yet the abuse of this authority will make him a trespasser ab initio.
Six Carpenter Care
WILBRAHAM v. SNOW.
KING's Bench. 1670.
(Reported 2 Saund. 47.)
Sympson, for the plaintiff.
of Ayre v. Aden in Moor. 737; Cro. Jac. 73; Dalt. Office of Sheriffs, case 2, fol. 19, which case was adjudged as reported in those books, against the report of Yelverton, 44, and the Roll is in Easter 44 Eliz. Roll. 318.
SHORLAND V. GOVETT.
King's BENCH. 1826. enied Li6
(Reported 5 B. & C. 485.] also look La extra.
TRESPASS for breaking and entering the plaintiff's dwelling-house, and sorterenie remaining there a long time, to wit, for six hours, and until the plaintiff. casiness in order to obtain the quiet and peaceable possession of his house, paid na: Viis to the defendant £119 10s. 9d. of lawful money. As to breaking and
theirhe wikeentering the house, and making a noise therein, and renaining there Tog w as for the space of time in the declaration mentioned, pleas, first, not mora loguilty ; second, actio non, because before the said time, when, to wit, ent. on, &c., Sir W. T., bart., sued out of the court of our lord the king,
before the king himself at Westminster, a certain writ of fi. fa. directed to the sheriff of Somersetshire, commanding him to cause to be levied of the goods and chattels in his bailiwick of J. H., R. S., and the plaintiff, as well a certain debt of £200, which the said Sir W. T. had then lately recovered against them in his said Majesty's said court; as also £10 which in the same court were awarded to the said Sir W. T. for his damages, &c., which said writ was delivered to the said sheriff, who inade his warrant to R. S., and the defendant then and at the said time when, &c., being a bailiff of the said sheriff, and thereby by virtue of the said writ commanded them, &c., which said warrant afterwards and before the return of the said writ, and before the said time, when, &c., to wit, on, &c. was delivered to the defendant so being such bailiff, to be executed in due form of law, by virtue of which said writ and warrant the defendant afterwards, and before the return of the writ, to wit, at the said time when, &c., peaceably entered the said dwelling-house in order to levy the debt and damages aforesaid, according to the exigency of the writ, and on that occasion, and for that purpose stayed and continued in the said dwelling-house for the said space of time in the declaration mentioned, being a reasonable time in that behalf. And this, &c. Third plea to the trespasses in the introductory part of the second plea mentioned, stated the issuing of a fi. fa. indorsed to levy £110 158. besides poundage, &c., and a warrant to defendant to levy; that defendant, in obedience to the warrant, peaceably entered in order to levy, and did levy the said last-mentioned sum, together with poundage, &c. Replication to the second plea, that the writ and warrant, in that plea mentioned, were respectively indorsed to levy a much less sum than the debt and damages in that plea mentioned, to wit, £110 158., besides poundage, &c., and that shortly after the defendant entered into
anusein authoritie is not an
heed .. Nextorcich, but not créo pass ab initio.
feasance 35 SER 379 - offieur
the dwelling-house, in which, &c., and whilst he stayed and continued therein as in the second plea mentioned, and before the said writ and warrant were fully executed, the defendant, under color and pretence of the said writ and warrant, extortionately and unlawfully demanded, exacted, and received of and from the plaintiff a much larger sum of money, to wit, £3 108. more than he was entitled to levy upon the goods and chattels of the plaintiff, under and by virtue of the said writ and warrant, and according to the direction indorsed thereon as aforesaid; which said sum of £3 108., together with the further sum £116 Os. 9d., amounting in the whole to a large sum, to wit, £119 10s. 9d., being the amount then and there claimed by the defendant by virtue of the said writ and warrant, the said plaintiff was forced and obliged to pay for the purpose in the declaration mentioned. And this, &c. Similar replication to the third plea. Demurrer and joinder.
E. Lawes, in support of the demurrer.
BAYLEY, J. It seems to me that this replication is bad, and that the defendant cannot be deemed a trespasser ab initio. In the cases cited from Rolle's Abr. and Cro. Car., where it is said that a sheriff is made a trespasser ab initio, by the neglect to return a writ, the expression is inaccurate. "There, for want 'of the return, no complete justification was ever shown. The distinction is this, where there are facts alleged on the record, making out a good defence, but something added in the replication destroys that defence, the party is made a trespasser ab initio. But if the sheriff seizes goods under a writ where it is his duty to make a return, he never has a justification unless he discharges that duty; he must, therefore, allege that return in his plea. A bailiff not having the return of process is not bound to make such allegation, as appears by Girling's Case, which has been cited for the plaintiff. Here, then, the defendant had a good justification without showing a return. The answer given to it is, “ that before the writ and warrant were fully executed, the defendant demanded, exacted, and received a larger sum than he was entitled to levy." Does that make him a trespasser with reference to the acts alleged in the count? Where the subsequent act is a trespass, the law assumes that the party did not enter for the purpose alleged in the plea, but for the purpose of committing the trespass. But here the subsequent act was not a trespass, nor can it be reasonably supposed that the original entry was for the purpose of the extortion. For these reasons I think that the defendant cannot, in this case, be considered as a trespasser ab initio, and that our judgment must be in his favor.
HOLROYD, J. · If the allegations contained in this replication were sufficient to make the defendant a trespasser ab initio, the consequences to him would be very serious, for he would be liable to damages to the extent of the whole sum levied, and not merely the surplus exacted illegally. He is still liable for the extortion, although not for the sum which he was authorized to levy. The cases cited as to the necessity of