Page images

controversy are seldom raised by the pleadings, but are brought out in later stages of the case, the claim remains in great uncertainty till the judgment is rendered. And the case of Stone v. Boston & Maine Railroad, cited above, follows the ancient case of Benson v. Flover, Sir W. Jones, 215, where it was held that an action of the case is not assignable till after judgment, when it is reduced to a certainty.

Most of the cases in which the right to assign this class of claims has been discussed, have been assignments under the statutes of bankruptcy or insolvency. Much of the discussion has, therefore, related to the construction of these statutes; but the nature of the claims has also been regarded as an objection to their being assignable. In some cases the question has been discussed without reference to such statutes. In Prosser v. Edmonds, 1 Younge & Coll. 481, it was held that a bare right to file a bill in equity for a fraud was not assignable. Lord Chief Baron Lyndhurst remarked that courts of equity had relaxed the ancient rule as to the assignment of choses in action, “ but only in the cases where something more than a mere right to litigate has been assigned." This constitutes a very important limitation.

In North v. Turner, 9 S. & R. 244, the claim was for trespass de bonis, and it was held to be assignable under the laws of Pennsylvania ; but Gibson, J., admits that some claims are not assignable. He says: “ There are undoubtedly some injuries which so particularly adhere to the person of him who has suffered them, as to preclude an assignment of his claim to compensation for them so as to make him a witness ; such, for instance, as slander; assault and battery ; criminal conversation with the party's wife, and many others that might be mentioned. The right to compensation for any of these would not pass by a statute of bankruptcy, or an assigninent under the insolvent acts, nor could it be transmitted to executors or administrators.” There cannot be the same objection to the transmission of such a claim to executors and administrators as to its assignment to strangers ; and by our recent legislation actions for damage to the person survive; but we do not consider this as materially affecting the question whether such rights of action may be assigned to a stranger.

Gardner v. Adams, 12 Wend. 297, directly decides that a right of action for a tort is not assignable ; but the question does not appear to have been much discussed, and the authority of the case is less valuable on that account. The People v. Tioga Common Pleas, 19 Wend. 73, was argued by able counsel, and appears to have been thoroughly discussed. It was there held that a right of action for debauching a stepdaughter was not assignable; and the court refused to protect the assignee against a fraudulent discharge of the action by the assignor, on the ground that a chose in action for a personal tort is not assignable either in law or equity.

In view of these, and many other authorities to which we have referred, we are of opinion that the ancient doctrine of the common law on this subject is still in force, and that the reasons on which it was

originally founded are still valid. As an assignment of a claim for a personal injury is void, though it is made after verdict in an

action to recover damages for the injury, the claim of the defendant Perrin cannot prevail.

The plaintiff's bill is authorized by Sts. 1851, c. 206, and 1858, c. 34, and he is entitled to a decree for the payment of his debt accord. ing to the prayer of his bill, and for costs.?

C. Life Insurance Policies.


[Reported 3 Sim. 149.) In 1802 William Heath insured his life, in the Equitable Insurance Office, for £1,000. By a deed poll, dated the 10th of March 1810, Heath, in consideration of 58., and for divers other considerations him thereunto moving, assigned the policy to James Hodsoll. In October 1810 Hodsoll died. In February 1815 a decree was made in a suit instituted by Heath and others, against Hodsoll's executors, under which the policy was sold to General Ashley for £320: and, in August of the same year, the executors assigned the policy to General Ashler. In August 1817 General Ashley died. In 1829 the policy was sold to Charles Farebrother, under the decree in a cause instituted, by General Ashley's widow, against his executors. An order was afterwards made, on the application of Farebrother, for a reference to the master to inquire and state whether a good title could be made to the policy. The master reported in favor of the title. Farebrother excepted to the report; and General Ashley's executors presented a petiti praying that the report might be confirmed ; and that Farebrother might be ordered to pay his purchase-money into court, in trust in the cause. The exceptions and petition were heard at the same time.

The Solicitor-General and Mr. Duckworth for C. Farebrother.
Mr. Pepys and Mr. Parker for the petitioners.

The VICE-CHANCELLOR. Unless this transaction is affected by the Act of Parliament, no objection can be made to it. By the 14th Geo. 3, c. 48, it is enacted, &c. [His Honor here read the first three sections of 14 G. 3, c. 48.]Now there is not a word said here as to the assignment of policies. This policy was good at the time it was effected. By an instrument of the 10th of March 1810, an assignment of it was made; and, subsequently, the parties who had become entitled to the policy, sold it, for a valuable consideration, under a decree of the court; so that some person became entitled to bring an action, on the policy, in the naine of the assured, Brown v. Carter, 5 Ves. 862; Prodgers v. Langham, 1 Sid. 133; and if such an action had been brought, there is not a word in the Act of Parliament to defeat it. The question is whether the dealing with the policy has been such as that a court of equity would compel the assured to permit the assignce to use his name, in bringing an action on the policy. It appears to me that a purchaser for valuable consideration is entitled to stand in the place of the original assignor, so as to bring an action, in his name, for the sum insured.

1 See Zabriskie v. Smith, 13 N. Y. 322 ; Haight v. Hayt, 19 N. Y. 464 ; Johnston v. Bennett, 5 Abb. Pr. N. s. 331; Moore v. A Kinstry, 37 Hun, 194.

· We apprehend that the doctrine has never been held, that a claim of no fixed amount, or time, or mode of payment, - a claim which has never received the assent of the person against whom it is asserted, and which remains to be settled by negotia. tion or suit at law, can be so assigned as to give the assignor an equitable right to prevent the original parties from compromising or adjusting the claim on any terms that may suit them." Per MILLER, J., in Kendull v. United States, 7 Wall. 113, 116, 117.

The case cited is not applicable ; for there the action was brought by the assured ; and, at the time of the action brought, his interest had ceased; and, therefore, it came within the third section of the Act of Parliament.




(Reported 101 Mass. 564.) BILL IN EQUITY filed by the administrator of the estate of George L. D. Barton, against the administratrix of the estate of Dewey K. Warren and the next of kin of said Barton, alleging that the plaintiff had in his hands the proceeds of a policy of insurance issued to his intestate on his life ; that the defendant Warren claimed them by virtue of an assignment of the policy made to her intestate by Barton; and that the next of kin of Barton claimed them as assets of his estate ; and praying that the defendants might interplead.

1 By 14 Geo. 3, c. 48, it is enacted : that “no insurance shall be made on the life or lives of any person or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering; and that every assurance made, contrary to the true intent and meaning of the act, shall be null and void, to all intents and purposes whatsoever.

“II. That it shall not be lawful to make any policy or policies on the life or lives of any person or persons, or other event or events, without inserting such policy or policies, the person or persons name or names interested therein, or for whose use, benefit, or on whose account, such policy is so made.

“III. That in all cases where the insured hath interest in such life or lives, event or events, no greater sum shall be recovered or received, from the insurer or insurers, than the amount or value of the interest of the insured in such life or lives, or other event or events."

The defendants answered, and agreed that the court might, if it saw fit, take jurisdiction. The case is stated in the opinion.

H. W. Puine & R. D. Smith, for Warren's administratris.
G. W. Baldwin, for the next of kin of Barton.

WELLS, J. The plaintiff, as administrator of Barton, holds the proceeds of a policy of insurance upon the life of his intestate. The fund is assets in his hands for the benefit of one of the defendants as next of kin, after payment of debts, unless the other defendant is entitled to receive it by virtue of an assignment of the policy in the lifetime of the assured.

It is not properly a case for interpleader. But the plaintiff sustains a twofold relation to the fund. If the claim of the defendant Warren can be maintained, either at law or in equity, it is not like an ordinary demand against the estate which will be barred at the end of two years, if not sooner prosecuted. It would be against the plaintiff personally, and not as administrator. He is not only liable to be harassed by conflicting claims; but exposed to the risk of being required to settle bis accounts, and distribute or pay over the fund as administrator, before his liability to the other claimant is brought to a determination at law. The settlement of the estate is liable to be delayed by reason of a dispute affecting a considerable portion of the supposed assets. In such case the administrator may properly ask the direction and protection of the court. Dimmock v. Bixby, 20 Pick. 368; Treadwell v. Cordis, 5 Gray, 341.

The only question to be determined in regard to the rights of the parties is, whether an assignment of the policy, by the assured in his lifetime, without the assent of the insurance company, conveyed any right, in law or in equity, to the proceeds when due. The court are all of opinion that it did not.

In the first place, it is contrary to the express terms of the policy itself, by which it is provided and declared that any such assignment shall be void.

In the second place, it is contrary to the general policy of the law respecting insurance; in that it may lead to gambling or speculating contracts upon the chances of human life.

The general rule recognized by the courts has been, that no one can have an insurance upon the life of another, unless he has an interest in the continuance of that life. Loomis v. Eagle Insurance Co., 6 Gray, 396; Lord v. Dall, 12 Mass. 115. Dewey K. Warren had no such interest, and could not legally have procured insurance upon the life of Barton. We understand the answer to deny that the policy was held

by Warren as creditor and for his security; and to assert an absolute /right by purchase. 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.

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. Gen. Sts. c. 58, $ 62. Campbell v. New England Insurance Co., 98 Mass. 381. 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 arrangement was a cover for a speculating risk, contravening the general policy of the law, it would not be sustained.

The purpose of the clause in the policy, forbidding assignments without the assent of the company, is undoubtedly to guard against the increased risks of speculating insurance. 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.

The administrator will therefore hold the proceeds of the policy as assets of the estate of his intestate, discharged of any claim thereto under the assignment of the policy to Dewey K. Warren.

Decree accordingly.


Squash thosed to SUPREME COURT OF INDIANA. 1872.

charles v Allen [Reported 41 Ind. 116.) APPEAL from the Franklin Circuit Court.

WORDEN, J. This was an action by the appellee against the appellant on a life insurance policy, issued by the appellant to one William S. Cone, and by Cone assigned to the appellee.

Issue, trial, finding and judgment for the plaintiff below, a motion for a new trial having been made by the defendant and overruled, and exception having been duly taken.

The policy was issued September 2d, 1867, and stipulates for the payment of the sum of three thousand dollars by the company to the assured, his executors, administrators, and assigns, within ninety days after due notice and proof of interest and of the death of said Cone, deducting therefrom all indebtedness of the partyøto the company. The premium paid down was sixty-two dollars and forty cents, and a like premium was to be paid by the assured annually on the 2d of September, during the life of Cone. By the terms of the policy, if the first premium to become due after the issuing thereof should not be

« PreviousContinue »