to suggest that this distinction is erroneous, in spite of numerous dicta to the contrary.
No case can be found in which this point has been ruled, where an express condition against assignment was not contained in the policy, and no text-writer and no court has offered any sufficient reason why this distinction should be made. The better view is that a marine policy and a fire policy do not differ at all in this respect, except that, from the earliest times, fire policies have always contained a condition against assignment, while marine policies have contained no such condition. A fire policy, therefore, is assignable in the same way as a marine policy, and no consent is necessary, unless there be a condition against assignment.
Before the Statute of 31 and 32 Victoria, c. 86, in cases of marine insurance it was the law that the assignee should sue in the name of the assignor, though the loss recovered in such an action was not the loss of the assignor, but the loss of the assignee,—an anomaly which it is very difficult to explain. The law is the same in regard to fire insurance in many States.
A few words remain to be said upon the point, what acts are necessary to make the purchaser of the property insured the assignee of the policy. The policy may be assigned either at the time of the sale of the property, or afterwards. If the policy is assigned at the time of the sale, it is quite clear that the assignee becomes the assured. If the property is first sold, and subsequently the policy is assigned, a question has arisen whether the assignment of the policy is effectual to protect the assignee. Of course, if the loss occurs before the assignment, neither the assignor nor the assignee can hold the insurer. But where the policy is assigned before loss, it has been contended, on the one hand, that the contract of insurance, in order to be valid, necessarily postulates an insurable interest; and if, during the continuance of the risk, that insurable interest ceases to exist, the policy drops. There is authority which seems to uphold this view. On the other hand, it may be
said that the contract of insurance means that the insured is to be
- Delaney v. Stoddart, 1 T.R. 22 (1785); Sparkes v. Marshall, 2 Bing. N.C. 761 (1836); Powles v. Innes, 11 M. & W. 10 (1843); see L.R. 10 Q.B. 249. These cases are not decisions, but dicta; yet the dicta are so strong that they cannot be controverted.
- 2 American L.C. (5th ed.), 887, and cases cited.
- North of England Oil Cake Co. v. Archangel Ins. Co., L.R. 10 Q.B. 249. See judgments of Lush and Quain, JJ., pp. 254, 255, also see p. 253; Cockerill v. Cincinnati Ins. Co., 16 Ohio, 148.