assured, set off the premiums, although they have never been paid to him by the broker. In a late case, the question of credit for premiums between the broker and underwriter, arose in an action brought by the assignees of a bankrupt underwriter against the brokers for premiums supposed to have been received by the latter from the assured for policies which they (the brokers) had procured the bankrupt to subscribe as an underwriter. For these very premiums the brokers had given the underwriter credit in their account with him, and had again taken credit for them in their account with the assured. The counsel in the cause, the very learned judge, (Mr. Justice Le Blanc,) before whom it was tried, and Lord Ellenborough and the other Judges of the Court of King's Bench, before whom it was brought upon a case reserved for their opinion, never seem to have doubted, that the underwriter may maintain an action directly against the broker for premiums. But that case was decided, as to the main point, in favour of the broker, because the premiums in question were for re-assurances, which are illegal by the 19 G. 2. c. 37. and which the broker had not in fact received from the assured, but only credit for them had been given in account between the broker and underwriter. The relative situation, in which broker, assured, and underwriter stand to each other, has been more frequently discussed of late years upon questions of premium, on account of several failures, which made the decision of these points of consequence to their respective estates. IT. R.112 A question of this nature arose about 1786, when it was Grove v. held that in an action by the assignees of a bankrupt under- Dubois, writer against the broker, for premiums of insurance upon policies under-written by the bankrupt for the broker in his van name, the broker having a del credere commission from his principal, might set off under the general issue upon the statute of 5 G. 2. respecting mutual credit, losses which had happened before the bankruptcy, and for which premiums the underwriter had debited the broker. Bize v. Dickason, This doctrine was soon after extended to a case, where, IT.R.287, though the loss had happened before, the adjustment did not take place till after the bankruptcy. And see 19 G. 2. c. 32. Shee v. Clarkson, 12 East, 507. These two cases have since been considerably shaken. In the next case, the Court of King's Bench held, that as the broker is the mutual agent both of the assured and underwriter, while the premium remains in his hands, for the use of the underwriters, if he receive notice of an event entitling the assured to a return of premium, before any action brought against him for the whole of the premium, he is entitled to deduct such returns, and only to pay over the See Ld. C.J. difference to the underwriter, he never having parted with the policies. In this case there was no bankruptcy, and of course no question about mutual credit. Mansfield's opinion, 4 Taunt. 248. Minett, As- Barchard, v. But in the next case, a bankruptcy had happened, and the Court of Common Pleas were clearly of opinion, that the broker is the agent for both parties; first, for the insured in effecting the policy, and in every thing that is to be done in consequence of it; then he is agent for the underwriter as to the premium, but for nothing else: and that when once a bankruptcy had taken place, the broker cannot in any sense be said to be an agent for the underwriter, as the authority given by the underwriter himself ceases after his bankruptcy; and when he became a bankrupt, his right to the premium was immediately communicated to his assignees. That Court therefore held that an insurance broker indebted to a bankrupt underwriter for premiums, cannot without some special authority, set off against that debt sums due to the assured for return of premium, whether those returns became Goldschmidt due after or before the bankruptcy. And relying on the above decision, they decided accordingly, as to returns of premiums for arrival, which had taken place after the bankruptcy. v. Lyon, 4 Taunt. 534. Glennie and others, As signees, v. Edmunds, 4 Taunt. 775. In a subsequent case, where an action was brought by the assignees of an assured, who had become bankrupt, and who always acted as his own broker, for a total loss, the underwriter was not allowed to set off as a mutual credit, premiums due from the bankrupt upon that and other policies. It does not appear that the statute of 19 G. 2. c. 32. which enables assured to claim against bankrupt underwriters, as if the loss had actually happened, was observed upon at the bar. Supposing both parties had become bankrupts, the assignees of the assured could have claimed the loss against the estate of the underwriter. Would not the equity of the same statute See Graham have allowed the premiums to be set off: and as no broker v. Russell, intervened in this case, may it not be considered that this is chaelmas, strictly a case of mutual credit? In an action by the assignees of an underwriter against insurance brokers for the balance of an adjusted account, and also for premiums due to the bankrupt upon policies underwritten before the bankruptcy, the brokers are not entitled to deduct for returns of premium, which formed a part of the adjusted account, but where the events entitling them to the return were not known till after the adjustment — neither can the brokers deduct for returns of premium on policies, for the premiums of which the action is brought, the events entitling them to which returns happened before the bankruptcy, but were not adjusted; neither can they deduct where the events happened since the bankruptcy, but before the commencement of the action, the brokers having neither a del credere commission, (a circumstance which we shall presently see, the Court considered as making no difference,) nor being personally interested in the insurance. In giving the judgment, the Court expressly founded it upon a conformity to that of Minett, assignee of Barchard, v. Forrester, in the Court of Common Pleas (supra, p. 40.) B. R. Mi 57 G. 3. I M. & S. 494. In Grove v. Dubois and Bize v. Dickason, there was a del credere commission, a fact much pressed in the case about to be quoted: but Lord Ellenborough said in giving judgment, Cumming v. he could not conceive how a contract between A. and B. Forrester, can vary the rights between B. and a third person who is a stranger to it, and empower B. to set up a claim against him as derived out of that contract. And therefore the Court decided that where a broker effected policies in the name of his principal under a del credere commission, he could not set off against an action for the premium, total losses which happened on those policies, although the broker had accounted for them with his principal. Koster, Assignee of Swan, v. & S. 112. In this last case there was no bankruptcy, and Lord Ellenborough also observed that in Grove v. Dubois the policy was filled up in the name of the broker, and the whole dealing was between the broker and the underwriter. He also made a similar observation in the case about to be quoted, where the Court of King's Bench held, after time Eason, 2 M. taken to deliberate, that in an action brought by the assignees of a bankrupt underwriter, the broker could only set off such losses and returns as were due on policies effected in the broker's own firm, such losses and returns having become due on those policies before the underwriter stopped payment, though never adjusted by the bankrupt, and for the amount of which losses and returns the broker had given their principals credit. But the Court also decided that the broker could not set off, where the policies were effected in the name of the principals themselves, though the broker had a del Parker v. 423. credere commission. And in a subsequent case, the Court of King's Bench, 2 M. & S. adopting the distinction just made, decided that where brokers effected policies on goods on account of their principals, but in their own names, and accepted bills drawn on them on the goods, which were consigned to them, and lost before their arrival, held, that the broker might set off such losses against the assignees of the bankrupt underwriter, though there was no commission del credere, nor any adjustment. Houston, Robertson, The main point in all these cases is, that bankruptcy determines agency, and vests all the bankrupt's rights in the assignees; and that the broker acting under a del credere commission cannot be in any other situation with respect to a third person than he would be without it: but that wherever all the dealings are between the underwriter and broker as principal, and the underwriter knows him in no other character, there the rights of a principal attach upon him. Lately the Court of Common Pleas, in conformity to the Executor, v. principle of all the above decisions, held that death was to be put on the same footing as bankruptcy; and that as the bankruptcy in the one case caused the authority of the agent to 2 Marsh. 138. cease, so did death in the other. The interests in the one case became vested in the assignees; in the other in the executors. And therefore they held, that in an action by the executors of an underwriter against a broker for premiums due on policies subscribed by their testator, the broker could not set off returns of premium which became due after the death of the testator. Eighthly, The day, month, and year, on which the policy 1 Mag. 84. is executed. This insertion seems very necessary, because by comparing the date of the policy with the date of facts which happen afterwards, or are material to be proved, it will frequently appear, whether there is any reason to suspect fraud or improper conduct on the part of the insured. The ninth and last requisite of a policy of insurance is that it be duly stamped. By several acts of parliament passed in this and the preceding reigns, various duties had been imposed upon policies of insurance; but by an act passed in the 35th year of Geo. 3. for the purpose of imposing a new duty on marine insurances, it was by the 24th section of the statute positively declared, that all former duties on that species of insurance 35 Geo. 3. c. 63. should, from and after the 5th day of July 1795, cease and determine, and be no longer paid or payable. By the 2d section of the act it is declared that the duty thereby imposed shall not extend, or be construed to extend, to insurances on lives or insurances from losses by fire. "For every skin, or piece of vellum or parchment, or sheet Section 1. " of paper, on which any insurance upon any ship or ships, goods or merchandize, or upon any other property, or in"terest whereon insurances may lawfully be made, shall be "engrossed, written or printed, the stamp duties following 66 66 upon the sums insured; that is to say, Where the sum to "be insured shall amount to one hundred pounds a stamp "duty of two shillings and sixpence, and so progressively for every sum of one hundred pounds insured; and where the sum to be insured shall not amount to one hundred pounds, 66 "a like stamp duty of two shillings and sixpence; and where "the |