Chap. IX. Vesting of choses in action in new trustees. Assignment of debts and choses in action under Judicature Act. Other instances of choses in action transferable by statute are East India bonds,1 mortgage debentures of land companies under the Mortgage Debenture Act, 1865, debentures and debenture stock issued under the Local Loans Act, 1875,3 choses in action of companies where sold by the official liquidator, bail bonds, and replevin bonds.6 Under the Trustee Act, 1893, the right to recover and receive any debt or other thing in action subject to a trust will, on the appointment of a new trustee, without any assignment, vest in the trustees, if the deed appointing the new trustee contains a declaration by the appointor that it shall so vest; and the like effect follows where a deed by which a retiring trustee is discharged under the Act contains such a declaration by the retiring and continuing trustees and by the other person, if any, empowered to appoint trustees. But these provisions do not extend to "any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner prescribed by or under Act of Parliament;"9 this excep tion being for the purpose of reserving to companies and other bodies the right to require transfers to be made in the statutory form. It is provided by the Supreme Court of Judicature Act, 1873,10 that: "Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing 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 entitled to priority over the right of the assignee if this 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." 151 Geo. 3, c. 64, s. 4. 228 & 29 Vict. c. 78, s. 37, amended by 33 & 34 Vict. c. 20. 3 38 & 39 Vict. c. 83, ss. 5 & 6. + Companies Act, 1862 (25 & 26 Vict. c. 89), s. 157. 5 4 Anne, c. 3, s. 20. 6 11 Geo. 2, c. 19, s. 23. 7 56 & 57 Vict. c. 53, s. 12 (1). This Act repealed and re-enacted the provisions of sect. 34 of the Conveyancing Act, 1881. 8 56 & 57 Vict. c. 53, s. 12 (2). 10 36 & 37 Vict. c. 66, s. 25 (6). 135 It will be observed that, in order to make an assignment of a Chap. IX. chose in action valid at law by virtue of the Act, four things are necessary: (1.) The agreement must be in writing signed by the assignor. (2.) It must be absolute, not purporting to be by way charge only. A mortgage of a debt due to the mortgagor, made in the ordinary form of a conveyance with a proviso for redemption, is "an absolute assignment, not purporting to be by way of charge only," within this section,' and the result is the same where there is an assignment subject to a trust. The assignment must in every case be absolute, and probably must be of the whole debt or other chose in action, or at any rate of a definite part of the debt. 4 (3.) The chose in action must be legal." The words "debt or other legal chose in action" mean "debt or right which the common law looks on as not assignable by reason of its being a chose in action, but which a Court of Equity deals with as being assignable." Thus an executory contract of purchase, of which there has been no breach so that no action can be brought upon the contract, but which must if necessary be enforced by action, is a chose in action assignable under this section.7 (4.) Notice in writing of the assignment must be given to the debtor or trustee. The effect is that, until the prescribed notice is given, the assignee must sue in the same manner as if the Act had not been passed, i.e., in the name of the assignor; but after the prescribed notice is given, he can sue in his own name. And the notice produces its full effect even if not given till after the death of the assignor. Where an assignment is perfected according to the Act, an Tancred v. Delagoa Bay Co., 23 Q. B. D. 239, following Burlinson v. Hall, 12 in. 347, and disapproving of National Provincial Bank v. Harle, 6 id. 626: Durham v. Robertson, [1898] 1 Q. B. 765. 13 Comfort v. Betts, [1891]1 Q. B. 737 ; Wiesener v. Rackow, 76 L. T. 448. 3 Mercantile Bank v. Evans, [1899] 2 Q. B. 613; Hughes v. Pump House Co., [1902] 2 K. B. 190. 10. 4 Durham v. Robertson, sup. Jones v. Humphreys, [1902] 1 K. B. 6 See King v. Victoria Co., [1896] A. C. 250. 7 Torkington v. Magee, [1902] 2 K. B. 427, [1903] 1 K. B. 644. 8 Walker v. Bradford Old Bank, 12 Q. B. D. 511. Chap. IX. assignee takes subject to all equities capable of being enforced by the trustee or debtor against him at the date of the assignment,1 and it follows that an assignment perfected according to the Act confers no new rights on the assignee, but merely gives him a new way of enforcing his rights. Exceptional contracts not assignable. Assignment against public policy. Assignments statute. Occasionally the subject-matter of a contract is such as to render it not transferable either at law or in equity; as where the contract involves personal skill or confidence, e.g., a contract between an author and a publisher that the one shall write and the other publish a book; or where it may make a difference to the party on whom the obligation lies to which of two persons he is to discharge it.3 In some cases an assignment is void as being against public policy. "There are various cases in which public duties are concerned in which it may be against public policy that the income arising for the performance of those duties should be assigned and for this simple reason, because the public is interested not only in the performance from time to time of the duties, but also in the fit state of preparation of the party having to perform them. Such is the reason in the cases of half-pay, where there is a sort of retainer and where the payments which are made to officers from time to time are the means by which they, being liable to be called into public service, are enabled to keep themselves in a state of preparation for performing their duties. So, also, where a pension or remuneration is given for a purpose which tends less directly to the public benefit, as . . . the pension given to the Duke of Marlborough." It is hardly necessary to state that assignments prohibited forbidden by by statute are absolutely void. For instance, deferred pay or military reward payable to any officer or soldier of the army, royal marines, and His Majesty's Indian forces and the Royal Malta Fencible Artillery, or any pension, allowance, or relief payable to any such officer or soldier, or his widow, child, or other relative, or to any person in respect of military service 1 Ante, p. 130. 2 Per Abinger, C. B., Gibson v. Car- Flarty v. Odlum, 3 T. R. 681; 1 T. R. 248, 2 R. R. 375; and distinguish Carew v. Cooper, 4 Giff. 619. So the pay of a naval surgeon; Apthorpe v. Apthorpe, 12 P. D. 192. Per Lord Langdale, M.R., Grenfell v. Dean of Windsor, 2 Beav. 549; 50 R. R. 279. See Davis v. Marlborough, 1 Swanst. 79; 53 R. R. 29. 6 See as to judicial salaries, Flarty v. Odlum, 3 T. R. 683; 1 R. R. 791. (with certain exceptions).1 Naval pensions payable to an officer Chap. IX. in the navy, seaman, or marine, or to an officer's widow, allowances from the compassionate fund, marine half-pay, payments &c., in respect of services in the navy and marines to a subordinate officer, seaman or marine, pensions under the Incumbents' Resignation Act, 1871,3 are incapable of being assigned. "Maintenance" is the maintaining of another person in his suit Maintenance. by one who has no valuable interest in the matter, or an interest arising from relationship, or from the connection between the parties, e.g., as master and servant, or that which charity gives to a man who assists a poor man whom he believes to be oppressed. 66 Champerty" is the maintaining of another in his suit in con- Champerty. sideration of receiving a share of the proceeds. As being contrary to public policy they are common law offences, and also may be actionable wrongs, and agreements or assignments of that nature. cannot be enforced.4 The Army Act, 1881 (44 & 45 Vict. e. 58), s. 141. See Lucas v. Harris, 18 Q. B. D. 127; Crowe v. Price, 22 Q. B. D. 429. The Naval and Marine Pay and Pensions Act, 1865 (28 & 29 Vict. c. 73), 8. 4. 334 & 35 Vict. c. 44; Gathercole v. Smith, 17 Ch. D. 1. See Gathercole v. Smith, 7 Q. B. D. 626. Secus, as to an annuity granted to a retiring incumbent under the Union of Benefices Act, 1860 (23 & 24 Vict. c. 142); Mc Bean v. Deane, 4 Bradlaugh v. Newdegate, 11 Q. B. D. CHAPTER X. POLICIES OF ASSURANCE. Chap. X. Premium. Duty of assured to disclose material facts. Wilful misrepresentation. Innocent misstatement. A POLICY of assurance is a contract by which the assuror undertakes to pay a sum of money to the assured on the happening of an event, or to indemnify him from the loss arising from the happening of the event. The consideration paid by the assured is called the premium, and is generally a sum of money paid down or payable annually until the event happens or the policy is allowed to lapse. The most important classes of policies are those on life, on maritime risks, and against fire. It is the duty of a person seeking to effect a policy of any nature to communicate to the assuror every material fact in his knowledge, and, if he does not do so, the policy may be avoided by the assuror. If any wilful misrepresentation of a material fact is made by the assured, the assuror may avoid the policy. The question whether a policy is liable to be avoided by a misstatement made by the assured of a material fact, which, though untrue, is not untrue to his knowledge, is one of some nicety, and probably must receive different answers in the cases of policies on life and policies of marine insurance respectively. Where the policy is on life, if it is a term of the contract that the statement is true, the policy is voidable if the statement is false. This is in accordance with the general rule as to avoiding contracts.* On the other hand, any material misstatement, though 1 Blackburn v. Vigors, 12 A. C. 531; Lindenau v. Desborough, 8 B. & C. 586; London Assurance v. Mansel, 11 Ch. D. 263. Fitzherbert v. Mather, 1 T. R. 12; 1 R. R. 134. 3 Anderson v. Fitzgerald, 4 H. L. C. 484; Macdonald v. Law Union Co., L. R. 9 Q. B. 328; Hambrough v. Mutual Co., 72 L. T. 140; Biggar v. Rock Co., [1902] 1 K. B. 516. 4 Leake on Contracts, 266. |