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but not so where it is taken from him by force, or fraud, or Sect. 134. parted with by mistake (q).

As a general rule, the lien of the broker revives where the and revives. policy comes again into his possession ("); but there are excepted cases. If, for instance, when the policy comes again into the broker's hands he knows, or has reasonable grounds to believe, that his immediate employer was a mere agent (he having been ignorant of the fact when he before held the policy), it seems that his general lien for the balance of his insurance account with his immediate employer will not revive with the re-possession of the policy, as against the claims of the party really assured (s). So, if during the time the policy has been out of the broker's possession, it has been assigned over by his employer in good faith and for a valu⚫able consideration to a third party, the broker's general lien

on the insurance account with his employer would not, it has been held in the United States, revive as against the claim of such assignee (†).

If an insurance broker, having a lien on a policy, be summoned as a witness to produce it under a subpoena duces tecum,

in an action by his employer against the underwriter, he is compellable to produce the policy; but the Court will, if the plaintiff in such action obtain a verdict, prevent the money

(2) 2 Duer, 289. The learned jurist, as usual, supports these positions by incontestable authorities.

(*) Whitehead v. Vaughan, Cook's Bankrupt Laws, 547, 7th ed.; Levy v. Barnard (1818), 8 Taunt. 149; 2 J. B. Moore, 34.

(s) Levy v. Barnard (1818), 8

Taunt. 149; S. C., 2 J. B. Moore,
34. This was probably the point
decided in this case; but it is better,
with Judge Duer, to speak doubtfully
on the matter. 2 Duer, 290, 359, 360.
(t) Spring v. S. Carolina Ins. Co.
(1823), 8 Wheat. 268, cited 2 Duer,

Broker under

a sub, duc. tec.

must produce policy, but his lien will be


Sect. 134. from being paid over to him until the broker's lien is satis

fied (u).

(u) Hunter v. Leathley (1830), 10 B. & Cr. 858; S. C., at N. P., Lloyd & Welsby, 125. It appears, by the Nisi Prius report, that the broker, after objection made, produced the policy on an assurance from Lord Tenterden that if the plaintiffs recovered a verdict, the Court would prevent the money from being paid over to them till the witness's lien was discharged"; Lloyd & Welsby, 125. This explains the meaning of what Lord Tenterden is reported to have said in banc: "We do not by

this decision" (i.e., that the broker was compellable to produce the policy) "deprive the party of his lien; he still has the policy in his possession, and has the same right of lien as before." His lordship obviously means that the Court would take care that the broker's lien should be satisfied out of the fruits of the judgment, if it passed for the plaintiffs; if it did not, he would, of course, be in the same position as before. See 2 Duer, 294, 297.

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for the

135. In the last chapter we considered the actual course of Insurance sea insurance business as carried on in London and elsewhere agents acting in Great Britain, and the relative rights, duties and liabilities assured. of insurance agents and their principals as affected thereby. In the present chapter an endeavour will be made to discuss the relations of insurance agents to their employers, first, as governed by the general principles of the law of agency; and, secondly, as affected by the general course of business in sea insurance, in so far as that has grown to be a custom.

Insurance agents may be employed either for the assured to effect, or for the underwriters to subscribe, policies. We will for the present confine our attention to insurance agents acting on behalf of the assured, and consider, in the first place, the nature of the authority under which they act. Insurance agents may procure policies to be effected either, first, in consequence of orders expressly given them by their employers; or, secondly, by virtue of an implied authority arising out of the relation in which they stand to the persons for whom, or the property on which, they procure the insurance to be effected; or, thirdly, insurance made by them

Sect. 135. without the prior authority, may be ratified by the subsequent adoption, of the assured.

Their express authority.

Their implied authority.

A partner has an implied authority to bind his copartners by insurance;

but a part

owner, as

First, with regard to persons procuring sea insurances to be effected at the express request, instance or direction of the assured. In these cases no difficulty can arise as to the authority to insure: every person who is specially requested or directed so to do by the party interested may effect a policy to protect the interests of his employer; if, indeed, he himself puts the policy in suit or founds any legal claim upon it, he must, of course, be prepared, in the first instance, to prove the express authority, as given, whether verbally or in writing. The questions that have arisen in these cases of express authority turn mainly on the point: Under what circumstances does the express order to insure impose on the agent the positive duty of causing the insurance to be effected? and this will be more properly considered when we are discussing the duties and liabilities of insurance agents.

136. As to the implied authority to insure arising out of the relation of the agent to the parties for whom, or the property on which, the insurance is effected, the following are some of the principal points that have been decided.

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A partner may, without express authority from the other members of the firm, procure an insurance to be effected for him and them on partnership property; and if, by his directions, such an insurance is effected "on account of the firm,' all the members of such firm are liable to the broker, by whom the policy was so effected, for premiums and commissions (a).

But the same rule does not apply to part owners, who cansuch, has not. not bind the other part owners by any policy originally effected without their authority, and not subsequently adopted

(a) Hooper v. Lusby (1814), 4 Camp. 66. The vessels in this case, however, were not partnership property, though the defendants carried on business in partnership. It should seem that, in order to constitute a joint liability, a general partnership

is not necessary; it will be sufficient if the defendants were special partners in the particular adventure intended to be protected by the insurSee the dicta of the judges in Robinson v. Gleadow (1835), 2 Bing. N. C. 156.


by their ratification. The reason of this difference is thus Sect. 136. stated by Lord Ellenborough: "Each separate share in the ship is the distinct property of each individual part owner, whose business it is to protect it by insurance; so that the insurance of another cannot be binding on such proprietors without some evidence importing an authority by them" (b).

where the


This is so even where the part owner, who has given orders Not even for the insurance, is ship's husband, or managing owner, part owner is appointed by deed in the usual form to act discretionally for ship's all the other owners. Nothing will make his insurance binding on the others, except either a particular direction from them to insure, or satisfactory proof that the other part owners approved and ratified the insurance after it came to their knowledge as a step taken for the general benefit (c). Consequently, without such express direction, or subsequent ratification, the brokers who effect the policy under his directions can only look to him for premiums, and are liable to him alone for the amount received by them from the underwriters on account of losses (d).

Aliter, where the part owners are jointly in


Where, indeed, all the part owners are jointly interested in the particular adventure insured, and the insurance is made by one of them, who is managing owner, for their terested in joint account and benefit, they having full opportunity of the adventure learning what has been done, and never objecting to it, this is sufficient to warrant a jury in inferring a joint authority to insure, and will render all the part owners liable to the broker, or his assignees, for premiums, notwithstanding the broker may have debited the managing owner only, and divided with him the profits of commission on effecting the insurance (e).

(b) Per Lord Ellenborough in Bell v. Humphries (1818), 2 Stark. 345. See French v. Backhouse (1771), 5 Burr. 2727.

(c) French v. Backhouse (1771), 5 Burr. 2727; Robinson v. Gleadow (1835), 2 Bing. N. C. 156.

(d) Roberts v. Ogilby (1821), 9 Price, 269.

(e) Robinson v. Gleadow (1835), 2 Bing. N. C. 156. Several of the judges put this decision on the ground, that though the defendants were not general partners, yet they were special partners in the adventure in which the ships insured were engaged.

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