Result. could not recover under it, as it had not been effected on his behalf, or even adopted by him as his after the indorsement had been made; the plaintiff was no party to the contract, and consequently could not put it in suit.1 The true rule, then, would appear to be, that any party to whom an interest in the property insured "doth, may, or shall appertain," at any time during the pendency of the risk, may, under the general words, by subsequent adoption, take advantage of the policy to protect such interest, unless it appears from extrinsic evidence that the person directing the policy to be effected intended at the time so to confine the insurance as not to embrace such interest. Assignment of sea policies. We have already said that an assignee in order to recover on a policy must be assignee not only of the insurable interest covered by it, but also of the policy by which it is covered. A sea policy in its ordinary form, is not an incident of the property insured, so as to follow its transmission from hand to hand during the continuance of the risks; the purchaser of the property insured does not, by the simple fact of such purchase, and without more, entitle himself also to the protection of the policy. The contract of insurance is a personal contract on the part of the underwriter to indemnify the party originally insured against the consequences of the perils insured against; it is not a contract to indemnify any one whatever who may become interested in the subject insured during the continuance of the risks. In order to entitle the purchaser of the insured property to the substantial benefit of the insurance, there must have been an assignment to him of the policy by the party originally insured, or, at all events, an agreement to assign it, or what in effect is probably the same thing, to hold it for the benefit of the purchaser. 1 Watson v. Swann, 11 C. B., N. S. 756; 31 L. J. (C. P.) 210. 2 The remedy is entirely at law, and not in equity; De Ghetoff v. London Ass. Co., 4 Brown's Parl. Cases, 436, Tomlin's ed. valid assign loss. A valid assignment before loss supposes the co-existence of Conditions of three things at the time of assignment:-(1) an assignable ment before interest within the meaning of the policy in the assignor: (2) the continuance of the risk insured in the policy; (3) an insurable interest in the subject matter of the policy vested. in the assignee and exposed to the perils during the risk in the policy. A cargo of linseed was insured from Constantinople to a port of call and discharge in the United Kingdom to be named, including all risk of craft or lighters to and from the brig, each lighter to be considered as if separately insured. Whilst it was on the voyage the cargo was sold in London to the plaintiffs on the following terms:-To be delivered at destined port in sound merchantable condition, and paid for in fourteen days from being ready for delivery by cash, less 2 per cent. discount, or on seller's option on handing shipping documents, less 5 per cent. The vessel to go to any safe floating port in the United Kingdom. A safe floating port was named. The ship had arrived there in February, and the cargo was being landed in public lighters employed by the plaintiffs, when one of the lighters with her cargo on board was sunk, and would have been a loss within the meaning of the risk in the policy. The policy was assigned to the plaintiffs in the following June, and the assignment indorsed on it in the following October. The plaintiffs sued on it in their own names, but did not recover, because at the time of the assignment the assignor had no assignable interest, the same having ceased by delivery of the goods into the plaintiffs' lighter. Until such delivery the plaintiffs were incapable of an assignment of the policy, since the risk by the terms of the sale note continued to be on the vendors until then, and the same terms negatived any agreement to assign the policy to them, which might otherwise have kept it alive for their benefit when they had become capable of an assignment.1 1 North of England Oil Cake Co. v. Archangel Maritime Ins. Co., L. R., 10 Q. B. 249. Assignee may sue in his own name, or in that of another. Mode and form of assignment. In case the policy be assigned to the person entitled to the property thereby insured, such assignee may now, by statute, sue on the policy in his own name;1 and after a loss has occurred, an assignment of the policy merely vests in the assignee a right under the statute to sue in his own name for the loss. He may still, as formerly, sue in the name of the assignor,3 or of the brokers named in it as effecting the policy. In this case, he sues subject to all rights of defence that may be set up against the nominal plaintiff; and so now, when he sues in his own name by virtue of the statute, he does so subject to those same rights, they being expressly preserved by it to the defendant.5 Assignment of a policy of marine insurance has been hitherto made either by writing indorsed on the policy, or by delivery merely of the policy with intention to assign it. 1 31 & 32 Vict. c. 86, s. 1. 2 Lloyd v. Fleming, and Lloyd v. Spence, L. R., 7 Q. B. 299. 3 Sparkes v. Marshall, 2 Bing. N. C. 761; Gibson v. Winter, 5 B. & Ad. 96. 4 If inequitable defences, such as a release by the nominal plaintiff after assignment, be set up, either the plaintiff may set out the true facts by way of reply; De Pothonier v. De Mattos, E. B. & E. 461; Lyall v. Edwards, 6 H. & N. 337; or the Court will interfere upon motion to protect the rights of the parties; Gibson v. Winter, 5 B. & Ad. 96, and cases cited in the judgment; Bauerman v. Radenius, 2 Smith's L. C. 531 & 32 Vict. c. 86, s. 1. "Whenever a policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such policy shall be entitled to sue thereon in his own name; and the defendant in any action shall be entitled to make any defence which he I would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected." The insurer cannot maintain a right to set off a debt due to him from the assignor of the policy, because no such right of set off against an unliquidated claim is given by the Statutes of Set Off, and this statute affecting procedure only, does not alter the law of set off; Pellas v. Neptune Mar. Ins. Co., 5 C. P. D. 34 (C. A.). The Judicature Act, 1873 (36 & 37 Vict. c. 66, s. 25, sub-sect. 6), making choses in action assignable with a complete transfer of remedies to the assignee, does it with this reservation "Subject to all equities which would have been entitled to priority over the right of the assignee.” Notice of the assignment is required by this Act, which is not necessary under the 31 & 32 Vict. c. 86. The recent statute, whilst giving a form of assignment, neither requires that form to be followed, nor makes indorsement imperative, not even as a condition of taking advantage of its provisions.1 dorsement. When the assignment is made by indorsement, this may Time of inbe put upon the back of the instrument, either at the time of the transfer of the property insured, or at any other time between the making of the policy and the bringing of the action.2 parties after interest. An absolute sale and transfer by the party originally Rights of insured of all his interest in the insured property before the assignment of loss, incapacitates him, or the party who has effected the the insurable insurance for him, from recovering on the policy on his account; nor can he, or the party who has so effected the policy, sue thereon as trustee for the purchaser unless there have been either an assignment of the policy, or something which the Courts will consider as equivalent thereto, or evidence of an agreement between the vendor and vendee that the policy should be kept alive for the benefit of the latter.3 Thus, where a part owner of a ship, after insurance and Powles v. before loss, had by bill of sale absolutely transferred his 131 & 32 Vict. c. 86, s. 2. "It shall be lawful to make any assignment of a policy of insurance, by indorsement on the policy in the words, or to the effect set forth in the Schedule hereto." SCHEDULE. Form of Assignment. I, A. B., of &c., do hereby assign unto C. D. &c., his executors, administrators, and assigns, the within policy of Assurance on the Ship, Freight, and the Goods therein carried [or on Ship, or Freight, or Goods, as the case may be]. In witness whereof, &c. 2 In Sparkes v. Marshall, 2 Bing. N. C. 761, the assignment was not made till several months after the loss was known. "We are not aware," says Tindal, C. J., "of any principle The loss was generally believed in 3 Hibbert v. Carter, 1 T. R. 745; Delaney v. Stoddart, ibid. 22; Powles v. Innes, 11 M. & W. 10; North of England Oil Cake Co. v. Archangel, Maritime Ins. Co., L. R., 10 Q. B. 249; stated ante, p. 113. Innes. Hibbert v. share to a third party who was an entire stranger to the insurance, it was held that the plaintiffs, who had effected the policy under his directions, could neither recover as his agents under a count averring interest in him—for he had no interest left at the time of loss-nor as trustees for the purchaser of his share, because there were no facts stated in the case to warrant the inference that the policy had been handed over with the bill of sale, or that there had been an order on the broker to hand it over, or any agreement that the policy should be kept alive for the purchaser's benefit.1 Nothing short of an absolute transfer, however, of the insured property will preclude the party originally insured from recovering on the policy, for the benefit of the transferee, even where there has been no assignment of the policy, and nothing that amounts to it. A mere pledge of the bill of lading as a collateral security, does not divest the assured of his insurable interest in the property. Ker, having consigned a cargo of produce to this country, and directed an insurance to be made thereon by the plaintiffs, his correspondents in London, subsequently, but before the policy was actually effected, assigned the bill of lading over to Dellprat: there the Court of King's Bench, on the assumption that the whole property passed by indorsement of the bill of lading, held that the plaintiffs could not recover on the policy;-not as agents for Ker, who had passed away all his interest before the policy was effected, nor as trustees for Dellprat, to whom there had been no transfer, or, even if it had been valid, agreement to transfer it. Subsequently, however, on affidavits that Ker had no intention to pass the property by indorsement of the bill of lading, but only to bind it to the extent of the net proceeds, as a security for Dellprat's debt, which debt had since been paid on Ker's behalf, a new trial was granted, and on the second trial, the facts appearing to be so, the plaintiffs had a verdict for the whole amount of the loss.2 1 Powles v. Innes, 11 M. & W. 10. acc. Allston v. Campbell, 4 Brown's P. C. 476, Tomlin's ed. |