POLICIES OF ASSURANCE. What is sufficient notice. Notice binding on the holders of the fund. Necessity of inquiry as to prior incumbrances. equitable interests in the nature of choses in action, and not to dealings with an equity of redemption of real estate. (3 Russ. 35; Jones v. Jones, 8 Sim. 633). The question, what is a sufficient notice to the legal owner of the fund, has given rise to much discussion. When the fund is in the hands of trustees, a notice given to one of those trustees, and that as a mere matter of conversation, is sufficient. (Smith v. Smith, 2 Cro. & Mee. 231). But the knowledge which one of several executors or trustees has of an assignment made to himself by a legatee is not sufficient as against a subsequent particular assignee, (Timson v. Ramsbottom, 2 Keen, 35), although it will suffice as against the assignees in bankruptcy. (Ex parte Smart, 2 Mon. & Ayr. 60). A letter to the secretary of an insuranceoffice, in which the writer says, "I am the holder of the undermentioned policies," and inquires what the office would give for them, is sufficient notice of assignment. (Ex parte Stright, 2 Dea. & Chit. 314; S. C. Mont. 502; see, too, Ex parte Bignold, 3 Dea. 151). A conversation between a clerk in the office and the person paying the premium is not sufficient. (Ex parte Carlis, 4 Dea. & Chit. 354). But a deposit by a director of the office with bankers, one of whom was an auditor of the office, is sufficient. (Ex parte Waithman, 4 Dea. & Chit. 412). If the agreement be with the company itself, it seems that formal notice is not required. (Ex parte Harrison, 3 Dea. 185; see, however, Ex parte Bignold, 3 Dea. 151; see, further, Cumming v. Prescott, and the other cases previously cited; and Ex parte Walker, 1 Mont. & Ayr. 689). It seems that, in respect at least to a policy of assurance, the burden does not lie on the assignee to shew that notice was given, but on the opposing claimants to shew that it was not. (Ex parte Stevens, 4 Dea. & Chit. 117). In the case of Foster v. Hargreaves, (1 Keen, 281), in which the circumstances were very peculiar, it was held that the doctrine of notice did not apply. The parties to whom notice of assignments ought to be given are bound to take and act upon the notice when it is given. (Williams v. Thorp, ubi supra; Baldwin v. Billingsley, 2 Vern. 539; and the other cases previously cited). Of course it is not necessary for an assignee of a mortgage debt secured upon land to give notice to the mortgagor, but it is prudent to do so; for payments made by the mortgagor to the mortgagee after the assignment are good as against the assignee, if the mortgagor had no notice of the assignment. (Jones v. Gibbons, 9 Ves. 407; Williams v. Sorrel, 4 Ves. 389). It is obvious, from the cases cited in the preceding part of this note, that no person should take an assignment of a chose in action without first inquiring of the legal holder of the fund, whether he has previously received notice of any assignment of or charge or lien upon the fund. The person of whom the inquiry should be made is, of course, the person to whom the notice should be given; but it must be remembered, that, as notice to one of several trustees or executors is sufficient, inquiry as to incumbrances must be made of each of them. (Smith v. Smith, 2 Cro. & Mee. 231). If the fund be in court, inquiry must be made at the Accountant XLII. ASSIGNMENT of GOODWILL and STOCK in TRADE to Two Co-PARTNERS. GOODWILL AND STOCK IN TRADE. THIS INDENTURE &c. BETWEEN A. B., of &c., Parties. [vendor], of the one part, and C. D. and E. F., of &c., (a), and co-partners [purchasers], of the other part: WHEREAS, by indentures of lease and release, bearing date respectively the and days of, the release being made or expressed to be made between [parties], the dwelling-house, garden, factory, and other hereditaments. in the said indentures particularly mentioned, situate in the parish of, in the county of, were conveyed, assured, and limited to such uses as the said A. B. should in manner therein mentioned appoint (b), and, in default of such appointment, to the use of the said A. B. and his assigns for his life, with remainder to the use of G. H. and his heirs during the life of the said A. B., in trust for him and his assigns, with remainder to the use of the said A. B., his heirs and assigns for ever: AND WHEREAS, under and by virtue of an indenture of demise, bearing date the 5th day of October, 1820, and made or expressed General's and Registrar's Offices, whether any order has been made affecting the fund. (Greening v. Beckford, 5 Sim. 195). Recital of conveyance of free. bar dower for holds to uses to vendor. - of lease to vendor. holder of the fund who If the holder of a fund make a false representation to an intended as- Liability of a signee of it, he is personally liable to make good any loss which the assignee may sustain ; but it would seem that, to render the holder personally liable, he must have made the representation in writing. (Lyde v. Barnard, 1 Mee. & Wels. 101; Swan v. Phillips, 3 Nev. & Per. 447). (a) The blank should be supplied by the description of the business, as 66 merchants," "" ironmasters," 97.66 cotton-spinners," &c. (b) This recital, and those which follow of the leases, are more brief and less accurate and formal than is usual, on account of the length of the deed, and because it was sufficient to shew in whom the property wes vested without particular reference to the nature of the estate. makes a false representation. AND STOCK IN TRADE. -of another lease to vendor. of an agree ment for lease to vendor. GOODWILL to be made between [parties], the said A. B. is entitled to the messuages, tenements, and hereditaments, in street, in the parish of, in the county of in the said indenture of the 5th day of October, 1820, particularly mentioned, for all the residue of a term of twenty-one years, to be computed from the 20th day of September, 1820, at, under, and subject to the rent, covenants, conditions, and agreements, by and in the said indenture of the 5th day of October, 1820, reserved and contained, and on the part of the lessee, his executors, administrators, and assigns, to be paid, observed, and performed: [Similar recital of another lease, dated the 31st of March, 1825]: AND WHEREAS, by an agreement, bearing date the 4th day of July, 1822, and made or expressed to be made between [parties], the said [lessors] agreed to grant, and the said A. B. to accept, a lease for twenty-one years from Midsummer day then last, of the lands and hereditaments in the parish of, in the said county of, in the said agreement particularly mentioned, at, under, and subject to such rents, covenants, conditions, and agreements, on the part of the said A. B., his executors, administrators, or assigns, to be paid, kept, observed, and performed, as are in the said agreement particularly mentioned: AND WHEREAS the said A. B. hath heretofore carried on the business of a said and at several other places: AND WHEREAS the said A. B. is possessed of or entitled to an extensive stock in trade, consisting of materials for manufacture and manufactured goods, machinery, and implements of manufacture and trade, fixtures, furniture, and other articles at aforesaid and in other places, and is also entitled to book debts due to him to a large amount, and to a sum due to him on the balance of his account at his bankers: AND WHEREAS the particulars of the said book debts due to the said A. B., and also of the said debts owing by the said A. B., are all entered in and appear by the books of account of the said A. B.: AND WHEREAS the said A. B. is entitled to divers other sums due to him on divers securities, including a debt of large amount due from X. Y., -and being en- Esq., and secured by bond and mortgage: AND WHEREAS - of vendor having carried on trade. -and being entitled to stock in trade and book debts. --and money in bank. --and being indebted. of particulars being entered in account books. -of vendor having money due to him on securities. at afore GOODWILL AND STOCK IN titled to con the said A. B. is also entitled to certain contracts or orders connected with the said trade or business: AND WHEREAS the said A. B. is desirous of retiring from the said business or trade of AND an arrangement hath been tracts. entered into between the said A. B. on the one part, and and desiring the said C. D. and E. F. on the other part, for the retirement of the said A. B. from the said business or trade of to retire from business, and arrangement for purchasers to succeed. and for the succeeding of the said C. D. and E. F. to the said trade or business in all its branches: AND AS PART Particulars of of the said arrangement, it was agreed that the said A. B. arrangement. should, in consideration of £ (c), convey the said freehold hereditaments comprised in the said indentures of the and days of unto and to the use of the said C. D. and E. F., their heirs and assigns, and should, in consideration of £ -, assign the said leasehold premises comprised in the said indenture of the 5th day of October, 1802, to the said C. D. and E. F., their executors, administrators, and assigns, and should, in consideration of £assign the said leasehold premises comprised in the said indenture of the 31st day of March, 1825, to the said C. D. and E. F., their executors, administrators, and assigns, and should, in consideration of £, assign the said premises comprised in the said agreement of the 4th day of July, 1822, to the said C. D. and E. F., their executors, administrators, and assigns: AND should also assign to the said C. D. and E. F., their executors, administrators, and assigns, all the stock in trade, consisting of the particulars herein before mentioned, to which the said A. B. is entitled as aforesaid, and all the said contracts and orders connected with the said trade or business, and the full benefit thereof, and all the book and other debts due to the said A. B. as aforesaid, and all the securities for the same, (except the said debt due from the said X. Y. and the securities for the same), and should also transfer the said balance due to him the said A. B., on his account, at his (c) With respect to the principle on which the purchase-money should be apportioned, see ante, p. 104, n. (b); and Vol. I. Book IV. Or STAMPS ON ASSURANCES. GOODWILL AND STOCK IN TRADE. Recital of ar rangement hav ing been partly effectuated. -by conveyance of freeholds. banker's: AND AS FURTHER PART of the said arrangement, (d) This recital is informal and inaccurate. (See ante, p. 212, n. (g), and supra, n. (b). |