34 Geo. 3.

c. 80. s 10.

continued

upon cargoes of slaves. The acts of parliament upon this subject are annual acts, for regulating the shipping, and carrying slaves in British vessels from the coast of Africa: but they have now been continued for several years, and on account of the benefits derived to the slaves from the humanity of those provisions, are likely to be continued (a). With a view, therefore, to procure better treatment, when in health, and a greater degree of care and attention when in sickness, for the objects of this traffic, the legislature has provided, that though the usual printed words may remain on the face of the policy, by 39 Geo.3. that no loss or damage shall hereafter be recoverable on account of the mortality of slaves by natural death or ill treatment, or loss by throwing overboard of slaves on any account whatever, or loss or damage by restraints and detainments, by kings, princes, people, or inhabitants of Africa, where it shall be made appear that such loss or damage has been occasioned through any aggression for the purpose of procuring slaves, and committed by the master of any such ship or by any person or persons commanding any boat or boats, or party or parties of men belonging to any such ship, or by any person or persons acting by the direction of any such master or commander respectively.

c. 80. s. 24,

25.

Seventhly, The consideration or premium for the risk or hazard run this is the most material part of the policy, because it is the consideration of the premium received that makes the underwriter liable to the losses that may happen. In English policies it is always expressed to have been received at the time of underwriting; "we the assurers confessing ourselves paid the consideration due unto us for this assurance by the

66

(a) When the insurances made upon slaves prior to May 1807, shall have expired, no question of law can ever arise on that subject again; for by an act passed 47 G. 3. c. 36. the African slave trade is utterly abolished, from the 1st of May 1807, and the 5th s. of the act prohibits all insurances respecting slaves, declaring them unlawful, under a penalty of 100l. and three times the amount of the premium. But the 6th s. declares that no insurance shall be void made upon this subject, provided the vessel shall have been cleared out from Great Britain before the 1st of May 1807, and the slaves be finally landed in the West Indies before the 1st of March 1808, unless prevented by capture, the loss of the vessel, the appearance of an enemy on the coast, or other unavoidable necessity, the proof whereof to lie on the party charged.

"assured."

Pinsacke,
2 Lev. 153.

"assured." This being subscribed by the underwriter, it is proper to enquire whether, if the premium were not actually paid at the time, he could afterwards maintain an action for it against the assured, who might then produce his subscription, as evidence against himself. One old case has been found Fowk v. upon the subject, but that is by no means satisfactory. It was an action of assumpsit, and the plaintiff declared that the defendant was indebted to him in twenty pounds, for a premium upon a policy of insurance on such a ship. The defendant demurred specially, because the plaintiff did not shew the consideration certainly, what the premium was, or how it became due: but the objection was not allowed, for this is as good as an indebitatus pro quodam salario, which has been adjudged good. Here, however, is no decision upon the merits, nor does it appear whether the defendant was the broker or the insured himself. It is true, in practice, policies in general are effected by the intervention of a broker; and

the usage of trade, open accounts are kept between the insurers and brokers, in which case the underwriter may have an action against the broker for premiums received to his use. In one case, indeed, the question did arise, though nothing was done upon it.

It was an action by the insurer against the owners, who in this case acted, without the intervention of a broker, for money had and received to his use. The case was decided upon other grounds, for which it will be mentioned more at length hereafter; but just before the verdict was given, it was objected, that this action would not lie for premiums against the insured themselves. Lord Mansfield, however, thought the objection came too late, and would not, at that stage of the cause, when the jury were ready to give their verdict, enter into it.

In an action brought by the assignees of a broker against the assured, for premiums paid by the bankrupt to the underwriters, the question came collaterally before the court: but I do not find that any point was reserved, and the verdict was general. However, upon all the cases it seems that the broker alone is the debtor to the underwriter.

Gist v. Mason, Mich. Vac. 1785.

at Guildh.

Airy and
others,

Assignees of
Milton, v.

Sitt. at Guildhall, 14 Geo. 3.

It was an action brought by the plaintiffs, as assignees of Milton, who was a broker at Newcastle, and who had procured an insurance to be effected by different persons for the deBland, Trin. fendant. The declaration stated, that in consideration that the bankrupt would procure an insurance to be made on the ship Jason, and would procure six hundred pounds to be insured thereon by good and sufficient persons, the defendant promised that he would pay the bankrupt the premiums, and a reasonable sum for his trouble. The first question was, whether credit was given by the underwriters to the assured or to the broker, where the premium was not paid down at the time the assurance was made. Milton, the bankrupt, swore, that in May 1764, he was told by the underwriters that they should look upon him as their debtor, and that they would have nothing to do with the insured, which was considered at Newcastle as the London practice: that from that time he had always acted on this plan, and had paid, since that time, one thousand pounds to underwriters, which he had never received. His commission was five per cent. London insurance brokers were then called, who said, they understood the underwriters looked to them only; and that the underwriters did not once in ten times know who the insured were; and that in case of failure, the underwriter came upon the effects of the broker; the broker upon those of the insured.

Edgar v.
Bumstead.
I Campb.

411.

Lord Mansfield said, "The plaintiff's case is stronger than referring to the general usage in London; for they act by a specifick rule, which they suppose to be the rule in London and if the usage in London were doubtful, still the plaintiff's would be entitled to recover."-There was a verdict for the plaintiffs.

:

The two following cases will tend to illustrate the doctrine contained in the above case:

The first of them was an action of assumpsit for money had and received. The principal item in dispute between the parties was a sum paid by the plaintiff to the defendant under the following circumstances:

The

The plaintiff being an insurance broker, got a policy underwritten for the defendant, a merchant, on the ship Alfred, which was subscribed (among others) by one Lomas. A loss happened; whereupon the plaintiff paid the full amount of the sum insured to the defendant. Previously to this, Lomas had become insolvent, without the plaintiff being aware of the fact; and it was now contended, that he had a right to recover the sum he had paid to the defendant in respect of Lomas's subscription, as money paid under a mistake of the fact. But Lord Ellenborough held, that on account of the well known course of dealing between the insurance broker, the merchant, and the underwriter, the money could not, under these circumstances, be recovered back from the assured.

Mair.

I Campbe

It has also lately been decided, that in an action by the assured against an underwriter to recover the premium, the policy subscribed by the defendant is conclusive evidence that he has received the premium. This was held in an action for Dalzell v. money had and received, tried at Guildhall. The defendant had underwritten a policy of insurance effected by one Reid, 532. an insurance broker, on account of the plaintiff, upon goods by ship or ships, at and from Berbice to Great Britain. This action was brought to recover back the premium, on the ground that the goods had never been shipped.

The plaintiff gave in evidence the policy signed by the defendant, which contained the usual acknowledgment on the part of the underwriters, "confessing ourselves paid the con"sideration due unto us for this assurance by the assured," &c. It appeared, however, that no money had really been paid in respect of the insurance in question. The plaintiff being the holder of a bill of exchange accepted by Reid, which was not paid when due, the latter proposed by way of satisfaction to get policies of insurance under-written for him. This policy was effected in consequence; and Reid having a running account with the defendant, had not paid him any part of the premium at the commencement of this action.

It was contended, that under these circumstances the action would not lie, as no money had been received by the defendant

D 3

P. 534

De Gamind

v. Pigou, 4 Taunt.

247.

fendant either from the plaintiff or Reid, or paid by the plaintiff either to Reid or the defendant.

Lord Ellenborough. The defendant is bound by the receipt in the policy. If a man acknowledges that he has received a sum of money from the broker, and accredits him with his principal to that amount, he shall not afterwards, as between himself and the principal, be allowed to say that the broker never paid him (a). I should completely knock up the insurance business, if I were to allow this acknowledgment to be impeached. It is well known that there are running accounts kept between the insurance broker and the underwriter; and Lord Kenyon held that the former, before paying premiums to the latter, might maintain an action against the assured to recover the amount of them as for money paid.

Mr. Campbell adds in a note upon the last case, that he had not been able to find any decision of Lord Kenyon's upon this point: but that learned reporter refers to the case of Airey v. Bland, and then adds a very acute and sensible observation," that the object of the formal acknowledgment of the "receipt of the premium inserted in the policy is probably "to preclude the necessity of proving it when a loss happens, " and to prevent the underwriters from objecting, that there 66 was a want of consideration for their promise, in case the "broker has not paid them. The receipt is no bar to an ac❝tion for the premium by the underwriter against the broker; " and the distinction seems to be this, that as between these 66 parties it is no evidence at all, but that as between the "underwriters and the assured it is conclusive. It follows " as a consequence from this decision, that an action can"not be maintained for premiums of insurance by the un"derwriters against the assured, which has hitherto been "vexata questio."

And therefore in an action by the assured for a total loss against the underwriter, the latter cannot, as against the

(a) [Yet where it appears that a fraud has been practised upon the underwriter in collusion between the broker and assured, he may maintain the action, notwithstanding the receipt on the policy. Foy v. Bell, 3 Taunt. 493. and Mavor v. Simeon, 3 Taunt. 497.]

assured,