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stitute a good and valid consideration in law for any gift or grant, the transaction is entirely free from such imputation."

Several cases have been cited as deciding that any assignment of a life policy to one who has no interest in the life is void. We will notice them briefly. Cammack v. Lewis, 15 Wall. 643, and Warnock v. Davis, 104 U. S. 775, were both cases in which the policies were taken out, by the procurement of the assignees, in order that they might be assigned to them, under such circumstances as that they might well be held to be in evasion of the law prohibiting gaming policies. The remark of Mr. Justice Field in the latter case, that "the assignment of a policy to a party not having an insurable interest is as objectionable as the taking out of a policy in his name,'

was not neces

sary to the decision. In Franklin Ins. Co. v. Hazzard, 41 Ind. 116, the assured had failed to pay the premiums, and had notified the insurers that he should not keep up the policy. He afterwards assigned it for $20, the insurer assenting and receiving the premiums. The assignment was held void, the court saying that such policies are assignable, but not "to one who buys them merely as matter of speculation without interest in the life of the assured." Neither of these cases decides, whatever dicta may have accompanied the decision, that all assignments without interest are illegal. The case last cited is affirmed in the case of Franklin Ins. Co. v. Sefton, 53 Ind. 380, in which Chief Justice Worden, quoting from the opinion of the court in Hutson v. Merrifield, 51 Ind. 24, that "the party holding and owning such a policy, whether on the life of another or on his own life, has a valuable interest in it, which he may assign, either absolutely or by way of security, and it is assignable like any other chose in action," says that it is not stated that it is assignable to a person incapable of receiving an assignment; and adds, "It may be added that where the policy holder dies before the death of the party whose life is insured, perhaps the administrator of the holder could, for the purpose of converting the assets into money and settling up the estate in due course of law, sell the policy to any one who might choose to become the purchaser."

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Missouri Valley Ins. Co. v. Sturges, 18 Kan. 93, assumes and decides that the same objections lie to an assignment without interest as to an original insurance with no interest. The distinction between the two transactions is not considered. Basye v. Adams, 81 Ky. 368, seems to decide, on the authority of Warnock v. Davis, Cammack v. Lewis, Franklin Ins. Co. v. Hazzard, and Missouri Valley Ins. Co. v. Sturges, ubi supra, that an assignment without interest is void as against public policy.

The case of Stevens v. Warren, 101 Mass. 564, decided in 1869, has been supposed to hold that an assignment of the right of the assured in a life policy to one who has no interest in the life, is void without regard to the circumstances and character of the particular transaction, and has been referred to in some of the cases just cited as an authority

to that effect.

We think that decision has been misunderstood, and that, in connection with other decisions of this court, it shows that the law in this Commonwealth accords with that laid down in Clark v. Allen, ubi supra.

In Campbell v. New England Ins. Co., 98 Mass. 381, decided in 1868, a policy was taken out by one Andrew Campbell on his own life, and payable to himself and his representatives for the benefit of the plaintiff, who had no insurable interest in the life. The question of the right of the plaintiff to sue in her own name was waived, and the question considered was whether the policy could be supported for her benefit. In delivering the opinion of the court Mr. Justice Wells says: "It is the interest of Andrew Campbell in his own life that supports the policy. The plaintiff did not, by virtue of the clause declaring the policy to be for her benefit, become the assured. She is merely the person designated by agreement of the parties to receive the proceeds of the policy upon the death of the assured. The contract (so long as it remains executory), the interest by which it is supported and the relation of membership, all continue the same as if no such clause were inserted. It was not necessary, therefore, that the plaintiff should show that she had an interest in the life of Andrew Campbell, by which the policy could be supported as a policy to herself as the assured."

The question in Stevens v. Warren, which was decided about a year later, and in which the opinion is given by the same justice, was between the representatives of the assured and of his assignee. The terms, consideration, and circumstances of the assignment are not stated; it is only said that the defendant Warren claimed by virtue of an assignment of the policy, and that he was a purchaser of it, and had no interest in the life insured. The policy contained a provision that any assignment of it without the assent of the insurers should be void. The court held that the assignee acquired no rights under the assignment as against the representatives of the assignor, putting the decision upon both the grounds, that the assignment was prohibited by the contract of insurance, and that it was against the policy of the law against gambling policies. The court said: "The insurers are entitled to the full benefit of such a provision, as a matter of contract; and, as the policy of the law accords with its purpose, the court will not regard with favor any rights sought to be acquired in contravention of the provision." In considering one branch of the case, the following language is used: "The rule of law against gambling policies would be completely evaded, if the court were to give to such transfers the effect of equitable assignments, to be sustained and enforced against the representatives of the assured." That this language was not intended to apply to all assignments in which the assignee had no interest in the life, but to such only as were found or appeared to be in fact gaming transactions, is evident from what immediately follows in the opinion, in which the doctrine of Campbell v. New England Ins. Co., is

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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?

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The general rule laid down in Stevens v. Warren, ubi supra, 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 cease, 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.

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NOTE.

CHAPTER IV.

POSSESSION.

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.

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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.

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TROVER, upon special verdict.

The case was this; the plaintiff, be

ing sheriff, seized goods in execution by virtue of the writ of fieri facias; and afterwards, and before they were sold, the defendant took and carried them away, and converted them to his own use; for which the plaintiff brought his action. And on the first argument it was adjudged that the action well lies; and that the plaintiff, being sheriff, has such a property in the goods, by seizing them in execution, that he may maintain an action of trespass or trover at his election; and judgment was given for the plaintiff nisi, etc., but it was not moved afterwards.

Sympson, for the plaintiff.

Winnington, for the defendant. See 34 H. 6, 36 a., and the case

sheriff how special property arising out of his bligation to account to mother for the paroperty.

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