There is an important difference between the transfer of a policy and the transfer of the property insured by the policy. Policies of insurance are not negotiable, (e) but may be assigned, and the assignment vests an equitable interest in the assignee, (f) and the assignee may bring an action in the name of the assignor. (g) Such assignment may be valid without the consent of the insurers.
If the insured assign the policy with the consent of the insurers, there seems to be an exception to the general rule that the assignor cannot after an assignment affect the rights of the assignee. For any act of his which would render the policy void, had it not been assigned, will, it is held, still have that * effect; (h)1 unless the terms of the assent of the insur ers are such as to make or imply a new contract with the assignee. (i) 2 son v. Symonds, 1 Brod. & B. 426, and made by the insured, or by his procurement or consent. Nichols v. Johnson, 10 Conn. 192.
(b) Kennebec Co. v. Augusta Ins. Co. 6 Gray, 204.
(c) Constable v. Noble, 2 Taunt. 403; Kaines v. Knightly, Skin. 64; Ewer v, Washington Ins. Co. 16 Pick. 608; Chamberlain v. Harrod, 6 Greenl. 420.
(d) Collett v. Morrison, 9 Hare, 162, 12 Eng. L. & Eq. 171; Hogan v. Delaware Ins. Co. 1 Wash. C. C. 419; Oliver v. Commercial Ins. Co. 2 Curtis, C. C. 277. The evidence of the mistake must be clear and satisfactory. Henckle v. Royal Exch. As. Ins. Co. 1 Ves. Sen. 317; Graves v. Boston Ins. Co. 2 Cranch, 441; Lyman v. United Ins. Co. 2 Johns. Ch. 630.
(e) Fogg v. Middlesex Ins. Co. 10 Cush. 346; Folsom v. Belknap Co. Ins.
Co. 10 Foster, 231; Hobbs v. Memphis Ins. Co. 1 Sneed, 460.
(f) Wakefield v. Martin, 3 Mass. 668; Spring v. South Carolina Ins. Co. 8 Wheat. 268.
(g) Earl v. Shaw, 1 Johns. Cas. 313; Gourdon v. Ins. Co. 3 Yeates, 327; Folsom v. Belknap Co. Ins. Co. 10 Foster, 231; Pollard v. Somerset Ins. Co. 42 Maine, 221.
(h) Hale v. Mechanics Ins. Co. 6 Gray, 169; State Ins. Co. v. Roberts, 7 Am. Law Reg. 229; Bidwell v. Northwestern Ins. Co. 19 N. T. 179; Grosvenor v. Atlantic F. Ins. Co. 17 N. Y. 391; Buffalo Steam-Engine Works v. Sun Ins. Co. 17 N. T. 401. But see Pollard v. Somerset Ins. Co. 42 Maine, 221.
(i) Foster v. Equitable Ins. Co. 2 Gray, 216. See Boynton v. Clinton Ins. Co. 16 Barb. 264.
1 Warbasse v. Sussex Ins. Co. 18 Vroom, 203.
2 See McCluskey v. Providence Ins. Co. 126 Mass. 306; Fitchburg Sav. Bank certain from the authorities; (ss)l it must often depend upon the exact words which prohibit the sale or transfer.