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for preventing the assignment of choses in action at law is founded on the principle of the law not permitting a sale of a right to litigate (q). But it is submitted that since the Judicature Act, 1873, the judgments in these cases may be open to reconsideration (r).

There is a class of cases which fall within certain statutory restrictions as to assignment, and such choses in action apparently are only transferable at death, by nomination or otherwise in some special manner indicated by the particular Act in question.

There is not any statutory provision made for the assignment of interests in friendly societies for example, and it would appear that such choses in action are not transferable inter vivos. In a recent case, interesting in this respect, it was held that policies of friendly societies are not assignable, but that the legal representative of a nominee who predeceases the nominator stands in the place of the deceased nominee and is entitled to recover on behalf of the nominee's estate the amount of the policy from the society upon the death of the nominator (s). The facts are as follows:

The action was brought by Edward Caddick, executor of Joseph Caddick, against the trustees of the Liverpool Victoria Legal Friendly Society to recover 1007. on a policy of insurance, effected in 1881 with the defendants on the life of one Mary Gordon, who, in 1887, assigned it to Joseph Caddick. Notice of assignment was given to the defendants, who refused to recognize it, observing that if Mary Gordon desired the amount to be paid at her death to J. Caddick she must fill up the usual nomination form. A nomination form was accordingly filled up, appointing J. Caddick as the person entitled to receive the amount of the policy.

(q) Prosser v. Edmonds, supra; (8) Caddick V. Highton and others, Law Times, 18 Feb. 1899, p. 367.

Wood v. Downes, 18 Ves. Jun.

120; 11 R. R. 160.

(r) See ante, Bk. III.

J. Caddick died in March, 1891, after which date his executor, the plaintiff, paid the premiums due on the policy until Mary Gordon's death in November, 1896. For the plaintiff it was submitted that the assignment by Mary Gordon to J. Caddick was valid; that even if it were not the plaintiff was entitled to recover as executor, because the rights of a nominee did not lapse at his death; that the defendants, by taking the premiums from the executor, were estopped from disputing his right to recover; and that in any event the plaintiff was entitled to recover the premiums which he had paid, as money paid without consideration.

On behalf of the defendants, it was said that they were perfectly ready to refund to the plaintiff the amount which he had paid in premiums since the death of Joseph Caddick. But that it was of vital importance to all friendly societies that the law should be made clear as to whether or not these policies were assignable. That these societies were established for the purpose of encouraging thrift among the poorer classes; and that the object of the legislature would be defeated if such policies were made marketable securities, and people were allowed to raise money upon them. That before a person could claim to be paid the amount of such a policy as nominee, he must show to the society that he was the person mentioned in the nomination paper. If he could not do that he could not succeed in his claim. As to the question of estoppel, that the society had done nothing to prevent them from denying that under the policy the plaintiff was entitled to the whole amount assured. It was pointed out that, in addition to refunding the premiums which had been paid by the plaintiff, the society would have to pay the whole amount of the policy to the next of kin or legal representative.

Phillimore, J., said, in his opinion, the defendants had established their contention that the policies of

friendly societies could not be assigned. He, however, did not see why the estate of a nominee of a policy should be deprived of the benefit intended to be conferred by the nominator simply because the nominee died during the lifetime of the nominator, and, therefore, he held that the legal personal representative of a nominee was entitled to stand in the position of the nominee, and to obtain the amount of the policy from the society. And on this ground he gave judgment for the plaintiff for the amount claimed.

The mere insertion in a contract (e.g., in a policy of life insurance) of an express condition that it shall not be assignable in any case whatever, does not prevent the assignment of the beneficial interest in such contract ().

There are choses in action which are not assignable on the ground of public policy, more particularly known as maintenance, which arises where a person, having no interest in the subject-matter of an action brought by another, interferes by assisting either party by money or otherwise to prosecute or defend it (s).

The object clearly is the discouragement of vexatious and oppressive litigation by restricting the right of proceedings as far as possible to the persons immediately concerned in the subject-matter, by saddling them solely with the costs of such proceedings (f). It is the principle of keeping "new blood" out of people's disputes and differences.

There is a species of maintenance called champerty, which arises where a person bargains for a share in the subject-matter of the suit of another in consideration of

(r) In re Turcan, 40 C. D. 5. Cp. Brunton v. Electrical Eng. Corp., (1892) 1 Ch. 434; (1892) 2 Q. B. 700; Robson v. Smith, (1895) 2 Ch. 118.

(s) 4 Bl. Comm. c. 10, s. 12. See also Co. Litt. 368b; Co. 2

Inst. 212, 484; Bacon's Abr.;
Viner's Abr.; Com. Dig.; Termes
de la Ley, sub nom. Maintenance;
Story, Contract, c. 7, s. 578;
Jacob's Law Dictionary.

(t) Wallis v. Portland, 3 Ves. Jun. 494; 4 R. R. 78.

supplying funds or other means of maintaining that suit. Champerty is where a person agrees to supply another with the sinews of war in return for a share in the spoil.

Generally speaking, the Courts disallow all assignments which savour of maintenance and champerty. As, for example, where one-fifth part of the share of prize-money, the subject of a suit then depending, was assigned by the executrix of one of the captors, and her husband, to navy agents, in consideration of their indemnifying the assignors from all costs in respect of any suit for the prize-money, and also paying the assignors the remaining four-fifths if it should be recovered, the assignment was held to be void (u). Similarly, the purchase of an estate in order to set aside, on the ground of fraud, a previous agreement affecting the property, partakes of champerty and is not enforceable (v).

And on this ground, too, the assignment of a bare right to file a bill in equity for fraud was held void (w). And so the following assignments have been held void on the same grounds: assignment of the mere right to sue a trustee on the chance of recovering from him. interest or profits of part of the trust funds which were for a certain period in his hands (x); of a creditor's debt against a company coupled with the right to proceed with a petition against the company already filed by the assignor (y). And so a bill to enforce a title acquired by a conveyance from a person out of possession, in consideration of money advanced and to be

(u) Stevens v. Bagwell, 15 Ves. 139; 10 R. R. 46.

(v) De Hoghton v. Money, L. R. 2 Ch. Ap. 164.

(w) Prosser v. Edmonds, supra. See also Powell v. Knowler, 2 Atk. 226; Kenney v. Browne, 3 Ridg. P. C. 462, 498, 501; Bayly v. Tyrrell, 2 Ball & B. 363; 12 R. R.

99; Stanley v. Jones, 7 Bing. 369; 33 R. R. 513; Sprye v. Porter, 7 El. & Bl. 58; Twiss v. Noblett, 4 Ir. R. Eq. 64; Keogh v. M'Grath, 5 L. R. Ir. 478; 1 Wh. & T. 146. (x) Hill v. Boyle, L. R. 4 Eq. 260, 263.

(y) Re Paris Skating, &c. Co., 5 Ch. D. 959.

advanced on suits respecting the recovery of the estate, was dismissed on the ground of maintenance (z), and that it was buying a pretended title (a). An agreement to advance funds or supply evidence with or without professional assistance for the recovery of property in consideration of a remuneration contingent on success and proportional to or to be paid out of the products of the proceedings is void (b); and, consequently, an assignment of such an agreement is invalid. Similarly, an agreement whereby a solicitor was to have a percentage of the fund recovered in a suit, was held to be void notwithstanding that the solicitor was not the solicitor in the suit but employed another (c); but an agreement by a solicitor not to charge anything for costs in a particular action is not champerty (d).

A solicitor cannot purchase the subject-matter of a pending suit from his client in that suit (e); but he may take a security upon it for advances already, and costs already, incurred in the suit (ƒ).

But subject to the exception just cited, the purchase of property the title to which is in dispute, or which is the subject-matter of a lis pendens, is not in itself unlawful (g); yet it may become so if the real object of the purchaser is merely to maintain a suit in respect thereof (h). It is not champerty, however, to agree to

(z) Burke v. Greene, 2 Ball & B. 517; Wood v. Downes, 18 Ves. 120; 1 Swanst. 56; 11 R. R. 160.

(a) Burke v. Greene, 2 Ball & B. 521, 522; Marquis of Cholmondeley v. Clinton, 2 Jac. & Walk. 135, 136; 22 R. R. 84; Bayly v. Tyrrell, supra.

(b) Stanley v. Jones, 7 Bing. 369; 33 R. R. 513; Reynell v. Sprye, 1 D. M. G. 660; 21 L. J. Ch. 633; Sprye v. Porter, 7 E. & B. 58; 26 L. J. Q. B. 64; Hutley v. Hutley, L. R. 8 Q. B. 112; 42 L. J. Q. B. 52; Earle v. Hopwood, 9 C. B. N. S. 566; 30 L. J. C. P. 217. (e) Strange v. Brennan, 15 Sim. 346.

(d) Jennings v. Johnson, L. R. 8 C. P. 425.

(e) Wood v. Downes, supra ; Simpson v. Lamb, 7 E. & B. 84; 26 L. J. Q. B. 121. But see Knight v. Bowyer, 2 De G. & J. 445; Davis v. Freethy, 24 Q. B. D. 519; Rees v. De Bernardy, (1896) 2 Ch. 437.

(f) Anderson v. Radcliffe, E. B. & E. 806; 29 L. J. Q. B. 128; James v. Kerr, 40 Ch. D. 449.

(g) Hunter v. Daniel, 4 Ha. 420; Knight v. Bowyer, supra; Dickinson v. Burrell, L. R. 1 Eq. 337, 342; 35 L. J. Ch. 371.

(h) Prosser v. Edmonds, supra;

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