Exchequer Reports.

HILARY VACATION, 13 VICT.-1850.

CALDWELL v. DAWSON. Feb. 7.

An assignment of a policy of assurance as security for a debt, with a proviso for redemption on payment, is a mortgage within the 55 Geo. 3, c. 184, Sched. Part 1, and therefore requires an ad valorem stamp.

DEBT on an indenture, whereby the defendant covenanted to pay the plaintiff 7007., and interest, on the 6th of March, 1847.-Plea, non est factum.

At the trial, before POLLOCK, C. B., at the Surrey Summer Assizes, 1849, the plaintiff gave in evidence the indenture, the material part of which is as follows:

This indenture, made the 26th December, 1846, between Samuel Thomas (who is hereinafter, for the sake of brevity, styled "the said borrower'), of the first part; George Dawson, of the second part; and Frederick Caldwell, Henry Chilton, and Frederick James Fuller, of the third part. Whereas, by a policy of assurance of the English and Scottish Law Life Assurance and Loan Association, dated, &c., the funds of the said Association are charged with the payment to the executors, administrators, or assigns of the said borrower, of 1400l. within three months after proof of his decease, subject to the payment of an annual premium of 381. 108., and to the provisions in the said policy expressed. And whereas the said borrower hath agreed with the said parties hereto of the third part, for the loan of 700l., on the security of an assignment of the said policy, and also by the joint and several covenants of the said *borrower and of the said party hereto of the second part here

inafter contained. Now this indenture witnesseth, That, in con- [*2

sideration of the sum of 7001., to the said borrower paid by the said parties hereto of the third part, before the execution of these presents, the receipt whereof the said borrower doth hereby acknowledge, he the said borrower doth by these presents grant, bargain, sell, assign, and transfer unto the said parties hereto of the third part, their executors, administrators, and assigns, all that the said recited policy, and the money thereby insured, and all bonuses, benefit, and advantage to be

had or received therefrom, to have, hold, receive, and take the said policy, moneys, and premises unto the said parties hereto of the third part, their executors, administrators, and assigns; subject, nevertheless, to the proviso for redemption hereinafter contained. [Here followed a power of attorney, enabling the parties of the third part to receive the amount of the policy.] Provided always, that in case the said borrower, his heirs, executors, or administrators shall pay unto the said parties hereto of the third part, their executors, administrators, or assigns, on the 26th March now next ensuing, the sum of 7007., with interest thereon at the rate of 51. per centum per annum, then the said parties hereto of the third part, their executors, &c., will, at the request and charges of the said borrower, his executors, &c., re-assign the said policy unto the said. borrower, his executors, &c. And the said borrower, and, as his surety, the said party hereto of the second part, do hereby for themselves, their heirs, executors, and administrators, jointly and severally covenant with the said parties hereto of the third part, their executors, administrators, and assigns, that they the said parties hereto of the first and second parts, or some or one of them, their, or some or one of their executors, administrators, or assigns, will pay to the said parties hereto of the third part, their executors, administrators, or assigns, the said sum of 7002., and interest as aforesaid, on the 26th March next, without any deduction

whatsoever; and also will from time to time during the life of the

*3] said borrower, pay the premiums and expenses which ought to be

paid for keeping the said policy on foot, or for effecting and keeping on foot any renewed or substituted policy. And in case default shall be made in payment of any such annual premium or expenses, it shall be lawful for the said parties hereto of the third part, and the survivors and survivor of them, and the executors and administrators of such survivor, and their or his assigns, from time to time, as long as any money shall remain secured by these presents, to keep on foot such assurance as aforesaid, and in case of the forfeiture or determination of the said policy, to renew the same policy, or effect a substituted policy, with the said society for the like amount upon the life of the said borrower, and to pay the premiums and other expenses thereon. And that the said parties hereto of the first and second parts, their heirs, executors, or administrators, or some or one of them, will, within one calendar month or sooner, on demand thereof pay unto the said parties hereto of the third part, their executors, administrators, or assigns, all such money as they or he shall expend about such assurance, with interest thereon after the rate of 51. for every 100l. by the year; and the said policy or such substituted policy shall be a security for the repayment of the same sums and interest, in addition to the said sum of 7001. and the interest thereof, and the costs, charges, and expenses occasioned by the nonpayment thereof; but so, nevertheless, that the total amount of principal money to be ultimately recoverable under these presents shall not

the sum of 7001.; and also that the said borrower will not do

any act or commit any default whatsoever by means of which the said recited policy or any substituted policy shall be impeached or become void or voidable, or by reason whereof any higher rate of premium may become payable thereon, &c.

This indenture was stamped as a deed with a 17. 15s. stamp. It was objected, on behalf of the defendant, first, *that this was an assignment by way of mortgage of the policy of assurance, and there- [*4 fore required an ad valorem stamp under the 55 Geo. 3, c. 184, Sched. Part 1, "Mortgage;" secondly, that there was a variance, inasmuch as the covenant contained in the indenture was not an absolute covenant on the part of the defendant to pay, but a collateral covenant, that the party of the first part or the defendant would pay, and that debt would not lie on such a covenant. The learned Judge directed a verdict for the plaintiff, reserving leave for the defendant to move to enter a nonsuit.

Peacock, in the following term, moved upon both objections; but the Court, after referring to the case of Caldwell v. Becke, 2 Exch. 318, refused the rule upon the last point, and granted it upon the first.

Martin and Wordsworth now showed cause.-As between the plaintiff and the defendant, who is a surety, this instrument is a mere covenant to repay the 7007. with interest, and is, therefore, properly stamped as a deed: Walmesley v. Brierly, 1 M. & R. 529. It is said that the assignment of the policy of assurance renders it a mortgage within the Stamp Act; but such a policy is only an engagement on the part of the association, in consideration of an annual payment by the assured, to pay to his representatives a certain sum after his decease. That is a mere chose in action, the equitable right to which can alone be assigned, and upon which any action must be brought in the name of the assignor. It is not "lands, estate, or property, real or personal, heritable or movable," within the terms of the 55 Geo. 3, c. 184, Sched. Part 1, Mortgage." A judgment debt is a more effective description of property than a policy of assurance, inasmuch as the judgment creditor may take either the person or property of his debtor in execution; yet it has been expressly decided that an assignment by indenture of *a judg

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ment debt is not an assignment of property, within the 55 Geo. 3, [*5

c. 184, Sched. Part 1, "Conveyance:" Warren v. Howe, 2 B. & C. 281.b Where a policy of assurance on goods, on a voyage to India, was assigned as a security for the payment of an annuity, that was held not to be a conveyance of property within the meaning of the same Act: Blandy v. Herbert, 9 B. & C. 396. In the case of Coates v. Perry, 6 Moore, 188, several debtors conveyed their goods and effects to trustees, in trust to sell, and with the proceeds to discharge, first, debts due to the trustees, then debts due to other creditors, with a resulting trust for the original debtors; and it was held, that such deed did not require