a Court of Equity will entertain a suit for the specific performance of the sale of such an interest.(m) In this manner policies may become the subject of sale, mortgage, and settlement. The assignment of a policy operates, when upon a sale, as a contract which equity will specifically perform, that the purchaser shall be entitled to the entire benefit of the policy; when upon a mortgage, that the lender shall be entitled to the benefit of it as a security for his advances. Settlements made upon a valuable consideration do not differ from sales, except in the fact that the settlor may retain either an ultimate *or some other interest thereunder. The cestui que trusts, and [*172] the trustees on their behalf, are entitled as purchasers of the benefits respectively given them. When simply voluntary they will be found to involve points of more than ordinary difficulty, and will be treated of in a separate chapter. 4. As in every case of the assignment of a chose in action, the first question is the nature of the consideration for which it is made; it will be convenient to pause to consider the different classes of considerations, and particularly to distinguish those which are valuable from those which are voluntary. Considerations at law have been divided into four classes, namely, (1), valuable considerations; (2), good, or, as they are otherwise called, moral or meritorious considerations; (3), those which are merely voluntary; and (4), lastly, bad or illegal considerations, which will avoid a deed otherwise valid. Money, or money's worth, future marriage, or the agreement to do or assent to any act or thing that is beneficial to the assignor, or detremental to the assignee, will be a valuable consideration in favour of the latter.(n) The abandonment of the right to sue for the unascertained amount of a debt is a valuable consideration, but it must be shown that there is a debt of some kind.(0) And of equal effect would seem to be the discontinuance of legal proceedings, whatever may be the rights of the parties;(p) as also the compromise of doubtful or even supposed and possible rights.(q) The promise of a man who has attained his majority, to pay debts contracted in his infancy, will be a valuable consideration.(?) And in like manner a debtor may revive a debt barred by a bankrupt's certificate or by the Statute of Limitations, (s) the remedy and not the right having [178] been taken away. The release or surrender of a voluntary set tlement, when good inter partes, will be a valuable consideration for a subsequent settlement, which will prevail against creditors, unless the substitution be made with a fraudulent design.(t) Marriage, it has already been observed, is a valuable consideration, but to support a settlement the contract must be reduced into writing prior to the marriage; (u) and this will be universally true unless there are such special circumstances, other than the marriage itself, as may amount to a part (m) Ashley v. Ashley, 3 Sim. 159. (n) Edwards v. Baugh, 11 M. & W. 647. (0) Ibid. (P) Wilkinson v. Byers, 1 Ad. & Ell. 645; Jodrell v. Jodrell, 14 Beav. 397. (7) Heap v. Tonge, 8 Hare, 90. Kirkpatrick v. Tattersall, 13 M. & W. 766. 21 James 1, c. 16. Stat. of Frauds, 29 Car. 2, c. 3, s. 4. (1) Ex parte Berry, 19 Ves. 218. rformance of the parol contract, sufficient to take the case out of the tatute.(v) A deed executed after, but made in pursuance of articles atered into prior to marriage, will of course be equivalent to an anteuptial settlement. In one case a settlement made in consideration of a arriage which subsequently proved to be invalid, was sustained.(w) A good and meritorious consideration is that natural love and affection at a man is supposed to entertain for those who are nearly related to m by blood or marriage; such as his wife, legitimate children, brothers, phews, and cousins, for whom equity will in some cases interfere: as perfecting the defective execution of a power in favour of a wife or ild; or supplying the want of a surrender of a copyhold; or, prior to e Statute of Uses, compelling the execution of an use raised upon such consideration, upon an instrument incapable of operating by transmution of possession. It would, however, appear that no such distinction tween a good and purely voluntary settlement is made when the subject it is a chose in *action; so that a post-nuptial settlement of a licy, in favour of a wife or child, will not be in a better posi. [*174] tion than if made for the benefit of any other volunteer.(x) A voluntary consideration is that which arises from affection or friendship only, the act being one of mere bounty, and not in consequence of any legal obligation on the part of the donor. In such a case it is the substance that governs. Where a post-nuptial settlement purported to be made in consideration of "natural love and affection, and divers other good and valuable considerations," it was held that the onus of proof of there having actually been any valuable consideration fell upon the parties claiming under it, and that in the absence of proof it must be assumed to have been voluntary;(y) and when a settlement apparently voluntary was shown by extrinsic evidence to have been made upon a valuable consideration, it was considered to be supported by the latter.(z) Bad or illegal considerations are those the performance of which is contrary either to public policy or the statute law. Such is an agreement not to give evidence against the grantor in any criminal proceedings, or where a security forms a part of a simoniacal contract, or is given for a gambling debt, contrary to the statute. (a) And where a contract is made upon several considerations, one of which is illegal, the whole promise will be void.(b) A future illicit cohabitation is an immoral consideration, and a settlement made thereupon is consequently void at law, and a grantor may file a bill for discovery if not for relief. (c) But a settlement made after(d) or during(e) cohabitation *is merely a bounty, and stands in the same position as any other voluntary [*175] (v) Surcombe v. Pinniger, 17 Jur. 196, Court of Appeal. As to considerations for post-nuptial settlements between husband and wife, see Hewison v. Negus, 17 Jur. 445. (M. R.) (w) Boughton v. Sandelands, 3 Taunt. 342. (z) Antrobus v. Smith, 12 Ves. 39; Dillon v. Coppin, 4 My. & Cr. 647, sed vide Ellis v. Nimmo, Ll. & G. temp. Sugden, 339; 2 Sug. Powers, 93. (y) Kelson v. Kelson, 17 Jur. 129. (V. C. W.) (z) Pott v. Todhunter, 2 Coll. c. 76. (a) Collins v. Blantern, 1 Smith, Leading Cas., 154, cum notis. Benyon v. Nettlefold, 3 Mac. & Gor. 94. (e) Hill v. Spencer, Amb. 641. settlement. Nevertheless, a stipulation or provision for the continuance of an unlawful connection would avoid the deed as made pro turpi causa.(f) 5. As between the vendor and vendee the contract is conclusive; (g) but in order to render it altogether indefeasible, notice of the assignment to the insurers is requisite, and it is in all cases proper that the policy should be delivered to the purchaser. In this manner, although he cannot have the legal interest or right to sue transferred to him, he will perfect his security or purchase so far as the nature of the case will permit, and will obtain at least, as against all subsequent purchasers, a right, as it has been expressed, in rem. Until notice has been given, the vendor, moreover, has it in his power to defeat the assignment, by surrendering the policy, or any of the bonuses which have accrued thereon, to the office; (h) and for this purpose it is not necessary that any money should actually pass, but a bona fide settlement of accounts-as, for example, when an agent agrees to surrender his insurances in part pay. ment of a balance due by him to the company-would be conclusive against the prior incumbrancer, who had neglected to give notice.(i) But where notice has been given, the insurers will become quasi trustees for the assignee, having notice of the trust as between the assured and his assignee, and that, although there may have been no acknowledgment of the notice, or any other act equivalent to an acceptance of a trust by them.(k) 6. In order to prevent the policy, in the event of the bankruptcy or [*176] insolvency() of the assignor, becoming *liable to the claims of his creditors, as in the possession, order, or disposition of the bankrupt, with the consent of the true owner and vesting in the assignees, notice must be given to the insurers, and the policy delivered to the purchaser. In Ryall v. Rowles, (m) it is laid down, that to divest the bank. rupt of the apparent ownership in choses in action, the securities, if any, must be delivered over, and notice given to the debtor. And in Dearle v. Hall,(n) Sir J. Leach, referring to the preceding case, remarked: " In that case, it was the opinion of all the Judges, that he who contracts for a chose in action, and does not follow up his title by notice, gives personal credit to the individual with whom he deals. Notice, then, is necessary to perfect the title, to give a complete right in rem., and not merely a right as against him who assigns his interest." The effect of the omission to give notice on the assignment of a mortgage fund vested in trustees was said "not to exhaust the thing (to borrow the principle of the civil law), but to leave it open to traffic." And the Lord Chancellor, in the same case, upon appeal, said: "When personal property is assigned, delivery is necessary to complete the transaction, not as between the vendor and vendee, but as to third persons, in order that they may Gray v. Mathias, 5 Ves. 286. Jones v. Gibbons, 9 Ves. 407; Molloy v. French, 13 Ir. Eq. Rep. 261. (h) Fortescue v. Barnett, 2 My. & K. 36. Stocks v. Dobson, 17 Jur. 223; V. C. P. 539, Court of Appeal. (k) Ex parte South, 3 Swanst. 394; Lett v. Morris, 4 Sim. 607. (1) Williams v. Thorp, 2 Sim. 257. 3 Russ. 24. (m) 1 Ves. Sen. 348; 1 Atk. 177. not be deceived by the apparent possession and ownership remaining in a person who, in fact, is not the owner. This doctrine is not confined to chattels in possession, but extends to bonds, simple contract debts, and other choses in action." This position, it is apprehended, is strictly correct in cases of bankruptey ;(o) but, in order to render the policy liable, as in the order and disposition of the bankrupt, it must have been left in his hands with the consent of the assignee, or at least there must have been proof of laches on his part in allowing it to remain there; and if, at the time of the purchase, he had given notice to the office, and upon the *non delivery of the policy had brought an action of trover for it, upon the bankruptcy of the vendor in the meantime, his assignees would not be entitled.(p) [*177] 7. Where there has been an assignment with delivery of the instrument, but no notice to the office, the policy will vest in the assignees upon the bankruptcy of the assignor, (q) and they may maintain an action of trover for it. But where there has been a simple deposit, the intention being merely to give a lien(r) upon the instrument, and not to confer an equitable right to receive the money, although the right to the money assured may be in the assignees, it has been held that they cannot commence an action for the recovery of the instrument itself. Thus in Gibson v. Overbury, (s) which was an action of trover by the assignees of a bankrupt, to recover a policy of assurance on his life, deposited by him with the defendants as a security for moneys advanced, but of which no notice had been given to the office, Lord Abinger, C. B., said: "Suppose there had been an assignment in writing of this policy to secure the debt, but no notice given to the office, then it would fall within several of the cases, and particularly those decided by the Vice-Chancellor (2 Sim.,) that there had been no equitable transfer, because it was not completed; and that the instrument remained in the possession of the bankrupt, notwithstanding the intended transfer; and if it was not complete in equity, the assignees would not be deprived of their right to recover. But in the case of a mere lien, from a deposit by the bankrupt, I believe there is no example of the assignees being entitled to maintain trover. Our decision in this case will not affect the title of the assignees who have claimed the debt; they may still give a discharge to the office for the debt due upon the policy to which the bankrupt was entitled: but the *lien of the defendants upon the policy remained unaffected by [*178] the bankruptcy, and therefore we think they are entitled to judgment." 8. When a policy-holder has been adjudged a bankrupt, the policy, together with all his personal estate, present or future, to which he may become entitled before he obtains his certificate, will become absolutely vested in the assignees for the time being, by virtue of their appointment; and they will have the like remedies to recover the same, as the bankrupt would have had if he had not been adjudged a bankrupt :(t) (0) Ex parte Monro, Buck. 303. 2 Rose, 357. (g) Williams v. Thorpe, 2 Sim. 257. receive," Ld. Eldon. Ex parte, Heywood, (s) 7 M. & W. 557. (t) 12 & 13 Vict. c. 106, s. 141. (6 Geo. 4, c. 16, s. 63.) their title commences by relation from the time when the trader becomes bankrupt, (u) that is, commits an act of bankruptcy, and not from the adjudication only, but is modified in favour of purchasers and parties contracting bona fide, without notice of the act of bankruptcy;(v) and even if purchasing bona fide, and for valuable consideration, with notice, unless the fiat or petition shall have been sued out within twelve months after such act of bankruptcy.(w) In the case of a policy, however, the purchase or contract must, as we have seen, be completed by notice, to take the case out of the operation of the reputed ownership clause; and this notice has been held to protect a purchaser, notwithstanding a prior act of bankruptcy, when, at the time of giving it, the purchaser was himself unaware of the act of bankruptcy, and the fiat had not actually issued ; (x) and the rule would be the same under the new law, when the notice was given before the filing of the petition for adjudication.(y) In like manner, upon the vesting order in insolvency, the estate of the insolvent vests first in the provisional assignee, and then in the [*179] assignees appointed by the court.(z) 9. It is, moreover, it would seem, equally incumbent upon the assignees of a bankrupt or insolvent to give notice to the insurers, notwithstanding that the legal interest or right to sue may be vested in them by statute. This point appears to have been decided in a late case. A person who had been previously twice insolvent, being entitled to an equitable chose in action, assigned it for value to a purchaser. No notice of the insolvencies had been received either by the trustees of the fund, or by the purchaser, who immediately after the assignment gave them notice of it. It was held, first, by the Vice-Chancellor Knight Bruce, and subsequently by Lord St. Leonard's, C., that the purchaser was to be preferred to the assignees. (a) In this case the subject-matter of dispute was, it was true, equitable; but the principle upon which the decision of the Lord Chancellor rested, made this immaterial. "It is a settled point," he said, "as between two competing parties in reference to equitable interests, that he who takes care and first gives notice to the trustees shall get a benefit over him who has not done so. A case occurs to me of Warburton v. Loveland, before the House of Lords, (b) when the contest as to priority arose on the effect of the Irish Register Act, and the decision there clearly shows that the legal interest being in the assignee does not prevent the application of the rule of this Court to which I have adverted." This would seem to be the substantial justice of the case, for it would be a hard thing that a purchaser who has made inquiry of the insurers, and finding the title clear has registered a notice, (u) 6 Geo. 4, c. 16, s. 12. 12 & 13 Vict. c. 106, s. 133. (2 & 3 Vict. c. 29. This is precisely similar to the 133d section of the new act.) (w) 12 & 13 Vict. c. 106, s. 134. (2 & 3 Vict. c. 11.) (x) Ex parte Styan, 1 Phil. 105. (y) Ex parte Heslop, 1 De Gex, M. & G. 477. (z) 1 & 2 Vict. c. 110, ss. 37. 45. (a) In re Atkinson, 2 De Gex, M. & G. 140. (b) 2 Dow & Clark, 480. See Rochfort v. Battersby, 2 Jo. & Lat. 451, 14 Jur. |