both much more uncertainty as to the time for realising, and much more risk of loss through the omission to realise at the proper time, where a mere debt is in question, than where a title accrues to a specific fund. Hence, a mortgagee should be as careful to protect himself in this respect as any other fiduciary owner, who acquires the right, and with it assumes the duty, of getting in a debt (6). resembles a As a person who takes a sub-mortgage thereby permits the Mortgagee mortgage debt to be appropriated to the discharge from liability to surety. him of the mortgagee and his estate, the latter is in a position bearing a great resemblance to that of a surety, and the sub-mortgagee cannot prevent the original mortgagee from getting in the debt from his mortgagor, who is in the position of the principal debtor, except upon the terms of releasing such mortgagee and his estate from liability. Of course, if the debt is got in by the original mortgagee, he is bound to apply it in discharge of the sub-mortgage (c). A mortgagee, after a sub-mortgage of a debt and notice given Bankruptcy of mortgagor. to the debtor, cannot so deal with the debtor as to prejudice the sub-mortgagee (d); and if the mortgagor become bankrupt, the sub-mortgagee can prove for the whole original debt, although he cannot receive more than his own principal, interest and costs (e). In the case of a sub-mortgage, if the original mortgage debt is secured by an estate in land, the doctrine of reputed ownership does not apply (ƒ), and on the same ground the priority of charge of the sub-mortgagee would not be affected by want of notice. (3.) Assignment of debts under the Jud. Act. By the Jud. Act (g), it is provided as follows: choses in Any absolute assignment, by writing under the hand of the Assignment assignor (not purporting to be by way of charge only), of any debt of debts and or other legal chose in action, of which express notice in writing action. shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been (b) 2 Dav. Conv. 692, ed. 3; 140, ed. 4. (c) Gurney v. Seppings, sup. (d) Re Burrell, 7 Eq. 399, V. C James. (e) Ib. See sup. p. 427. (f) Jones v. Gibbons, 9 Ves. 407; Exp. Mackay, 1 M. D. & D. 550. (g) 36 & 37 Vict. c. 66, s. 25, sub-s, 6. Interpleader. entitled to priority over the right of the assignee if the Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor. Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action, shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into Trustee Relief the High Court of Justice under, and in conformity with, the provisions of the Acts for the relief of trustees. Acts. The following remarks upon this section may be useful :— 1. The section only applies to legal choses in action (1⁄2). 2. Assignments of equitable choses in action, whether absolute or by way of mortgage, are unaffected by this section of the Act, and can be sued for in all Courts, the assignor and assignee both being before the Court. 3. An assignee for value of legal choses in action not assignable at law, whether by way of charge or not, without writing or notice to the debtor, could, before the Jud. Act, have sued in equity. There is nothing to prevent such assignee now suing in any Court in the same way as he could, before the Act, have sued in a Court of equity. 4. The assignor of an equitable, or of a legal, chose in action, where the Act is not complied with, cannot be joined as co-plaintiff in an action without his consent or communication with him, and all terms necessary for his protection from liability being offered to him (i). 5. Under this section the property in the debt and legal chose in action and the right to sue vest in the assignee alone, subject to the equities, if any, in the section mentioned, which may be proved by parol or verbal evidence; and it would seem that this would be the effect if the assignment were absolute and did not purport to be by way of charge, although in fact it was by parol a mortgage. If the assignment shows on its face that it is by way of mort (h) See a definition thereof, 1 Spence's Eq. Jur. 852. (i) Turquand v. Fearon, 4 Q. B. D. 280. gage, it is not within the Act (). This case contained a proviso for reconveyance. 6. If the assignment were really a mortgage, although apparently absolute, the rights of the mortgager would, on notice, be investigated in manner in the section mentioned, and such an assignment, although following the terms of the section could not safely be relied on as a mortgage, and indeed the form of mortgages of debts and sub-mortgages will remain the same as before. But it has been held that an absolute assignment in trust to pay off a debt, though a mortgage, is not a charge, and that the section applies (7). 7. Before the Jud. Act, a verbal assignment of a legal chose in action was valid in equity (m), and will now be valid in all Courts, though not falling within the section. The mode of transfer under the Act is not compulsory. 8. Legal choses in action which were previous to the Act assignable at law by the modes indicated by their special enactments (»), would, it is apprehended, not fall within the section. within the section. 9. A cheque is not an assignment under the section (o); but an What is order to pay a sum out of a debt is an absolute assignment under this section (p); also a debt to become due under a building contract (9); and the assignment is valid against advances subsequently made to the assignor to enable him to complete his contract (9); and payment to the original creditor after notice is bad (9). 10. Interpleader will be refused if there has been no written Interpleader. notice of the assignment ("); but it appears that interpleader may be resorted to without waiting for an action to be commenced (s). Act. 11. Claims in respect of policy moneys assigned in terms of the Trustee Relief Act, though not within the Trustee Relief Act, are within this section (t). (k) Nat. Prov. Bk. v. Harle, 6 Q. B. D. 626. (1) Burlinson v. Hall, 25 Ch. D. 346, Day and Smith, JJ. (m) See sup. p. 542. (n) Sup. p. 552. (0) Schroeder v. The Central Bank, 24 W. R. 710, C. P.; 34 L. T. N. S. 735. (p) Brice v. Bannister, 3 Q. B. D. 569; 47 L. J. Q. B. 722; Buck v. Robson, 3 Q. B. D. 686; overruling Exp. Shellard, 17 Eq. 109, V. C. Bacon. See Fisher v. (1) Brice v. Bannister, sup.; Walker (s) Lacey v. Wieland, W. N. 187624, Lindley J.; Wils. Jud. Act, 129, ed. 2, 29, ed. 4. (t) Re Haycock's Pol. 1 Ch. D. 611, Jessel, M. R. 12. In whose name policy should be taken 13. Necessity of an assignment 14. Statute 30 & 31 Vict. c. 144 15. Contingencies for which the mortgage should provide 17. Future premiums barred by certificate in bankruptcy (1.) Utility of mortgage of policies. Page. 558 559 560 561 ib. 562 ib. 564 ib. 565 566 567 ib. ib. 568 ib. 569 570 POLICIES of assurance frequently form the subjects of mortgage. They are of great value as collateral securities when coupled with some annual income (as a life interest), which may serve as a fund for the payment of the premiums; but a policy of assurance alone is not a satisfactory security, inasmuch as it yields no income for the payment of interest, requires a periodical outlay to keep it up, and, generally speaking, the policy produces a very small sum if sold in the lifetime of the assured. Still policies are often mortgaged by themselves. A policy is a security which can be given by those who have no other to give; by men in business, who can afford to pay interest and premiums for the use of capital, or by persons who, like beneficed clergymen and officers on half pay, are in receipt of an assured income during their lives, which they cannot legally pledge to an incumbrancer. The policies which are met with in mortgage transactions have generally been effected on the life of the debtor, but sometimes, as for example where an estate pur autre vie is mortgaged, the insurance by which the security would in ordinary course be completed would be upon the life of the cestui que vie (a). (2.) Notice necessary to complete. necessary. Before the B. A. 1869, if a policy of life assurance was mort- Order and disposition. gaged or assigned, notice of such mortgage or assignment must have been given to the office in which the assurance was effected, to take it out of the reach of the bankrupt laws (b); but now choses in action are excluded from the order and disposition clause (c); and a policy of assurance is a chose in action within the section (d). The rule, however, as to notice still applies as between different Notice still incumbrancers on the policy, quite irrespective of the bankrupt law (e); and in order to complete the title to a policy of assurance, notice must still be given to the office. The reason for the notice is that otherwise the office might safely pay the money to the person who had, without the knowledge of the office, ceased to be its creditor, and it would be impossible to make the office pay it over again (ƒ); or the mortgagee might defeat the assignment by surrendering the policy or the bonuses to the office (g). cient notice. Notice is required to be given to the office, whatever the prac- What suffitice in the particular office may be (h), but before 30 & 31 Vict. Thompson v. Tomkins, 2 Dr. & Sm. 8; 1 De G. & J. 127; 3 Jur. N. S. 705. (d) Exp. Ibbetson, 8 Ch. D. 519, C. A. (g) Fortescue v. Barnett, 3 My. & K. (h) Williams v. Thorp, sup. |