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was

1815.

not to be paid over, if the claims, and of a distinct na.

event on which it was return- ture. They arose from events Houston able ascertained the amount of subsequent to the insurer's and Others the deduction before the pre- right to the full premium. The

mium was paid; and that in broker could not sue in his ROBERTSON.

such case the underwriter was own name for the return of entitled to receive no more in premium; how then could he, the first instance, than he in an action brought by the would be ultimately entitled to underwriter or his assiguees for retain on the balance of the premiums, set it off. It was premium account. By this

By this merely an accident that the determination, the rule which

premium remained in his hand. was to govern the rights of But that, wbich was an incl. the respective parties on the dental circumstance, could not contract, became more intri- give him a right of action or cate than

suitable to of set off, which is correlative. cases of such frequent occur. The case of Shee v. Clark. rence. The rule hitherto adopt. son was much shaken in the ed between the broker and the

subsequent cases of Minett v. underwriter had been simple Forrester, 4 Taunt. 541. and and intelligible; it was defined Goldschmidt v. Lyon, ibid. 534, with a suitable precision, and and in the case of Parker v. corresponded with those deci. . Smith, 16 East, 382, the deci. sions which had obtained in sions in the Common Pleas were cases of an analogous charac- confirmed and acted upon in ter. It was considered, that, the King's Bench. In Minett as the assured had no concern v. Forrester it was determined, in the contract between the un- that an insurance broker, who derwriter and the broker as re- was indebted to the estate of spected the premium, which a bankrupt underwriter for was their own distinct account; premiums, could not, without so the return of the premium, an especial authority, set off and the payment of losses, against the debt sums due from were matters between the as- the underwriter for return of sured and the underwriter, in premium. Whether the returns which a broker, who had not became due before the bank. a del credere commission, could ruptcy or after the bankrupt. have no right to mix or engage. cy? In that case, Mansfield, The payment for losses and the Ch. J. in delivering the judgreturn of premium were new ment of the Court observed in

substance, that in Shee v. Clark. the same principle as in the 1815. son, the judgment of the King's former case, viz. that a broker Bench seemed to have pro- who was indebted to the as- Houston ceeded very much on the cir- signees of a bankrupt for

and Others

precumstance of the plaintiff (who miums due to them upon poli

ROBERTSON. in that instance was the under- cies subscribed by the bankwriter himself) having been rupt before his bankruptcy, constantly in the habit of set. was not entitled to set off retling and adjusting with the turns of premium due upon the broker, and always allowing, arrival of ships which had arout of the premium which he rived since the bankruptcy. In was to receive, what was due Parker v. Smith, which was from himself to the assured for likewise an action by the asreturns of premium accruing for signees of an underwriter short interest, or for any other against insurance brokers, for reason. He was therefore, in the balance of an adjusted acfair intendment, the common count between the bankrupt agent both of the underwriter and the defendants, and also and the assured. But where a for premiums on policies subbankruptcy had intervened and scribed by the underwriter bedetermined the agency, (which fore his bankruptcy, it was was the case of Minett v. Fores- determined, first, that the ter) the authority given by the brokers were not entitled to underwriter ceased, and when deduct for returns of premium be became a bankrupt his right due on policies, the premiums to the premium was communi. of which policies formed a part cated to the assignees, who had of the adjusted account, but never constituted the broker where the events entitling them their agent, either with refer- to such returns were not kuown ence to an adjustment or other- till after such adjustment. Se. wise; they had a right there. condly, Nor could they deduct fore to compel him to pay the for returns of premium on premium for the benefit of the some of the policies for the bankrupt's estate; and how premiums of which the action could he make himself the was brought, the events enagent of the assignees for the titling them to which returns purpose of detaining money to had happened before the bankbe paid by the bankrupt to the ruptcy, but the returns on insured ? In Goldschmidt v. which had not been adjusted. Lyon, the decision went upon Thirdly, Nor could they deduct

1815.

for returns on other policies, credere commission, nor being

for the premium of which the personally interested in any of HOUSTON action was brought, the events the insurances. and Others entitling them to which re

The cases in the two Courts, ROBERTSON.

turns had happened since the therefore, seem now in unison. bankruptcy, but before the See likewise Koster v. Eacommencement of the action : son, 2 Maule and Selw. 112. the brokers not having a del

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be from

which he war.

CTION for a breach of contract upon the sale An usage of

trade cannot of some bacon.

be set up to contravene an

express conOn the 29th of March, 1815, the defendants sold tract. There

fore, where A. to plaintiffs 50 bales of bacon, warranted to be agreed to sell

to B. a quan(Penrose’s) prime singed bacon, at 68s. per cwt. ; uity of bacon, payable by a bill at two months from the landing; Wh

18 i ranted to be of average for weight. The bacon was landed a few a particular

quality, part days after the contract. On the 31st of March, of which'B.

weighed and one of the plaintiffs examined a bale, and upon the examined 3d of April three more bales were weighed and at the whari

upon delivery opened. No objection was taken, and no allow. inger's, and

paid for the ance claimed. A bill was drawn by defendants on whole by a bill

at two months, plaintiffs for the price of the bacon, which was but before the

bill became accepted and duly paid. About the latter end of due gave no

tice to A. that May plaintiffs made a final examination of the ti bacon, and rejected it on account of taint.

not agreeable to the contract

Held that B. could not give in evidence a custom in the bacon trade, that the buyer was bound to reject the contract, if dissatisfied therewith, at the time of examining the commodity; and that baving neglected to do so in the first instance, he was excluded from future objections,

on was

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The counsel for the defendants offered evidence, that there was a custom in the trade, upon the sale of bacon, to examine it a few days after the landing, if it was not imported at the time of the sale, and at the time of inspection to reject or accept it, or claim an allowance for damage or difference of quality; and that if the buyer did not at that time reject the contract, or claim an allowance, he was bound to accept the bacon without reference to the terms of the contract.

Best and Vaughan, serjeants, and Marryat, for plaintiffs, objected to this evidence of custom in a case where there was a warranty. The question was, whether, on the 29th of March, 1815, this bacon was prime singed bacon. No usage can countervail a special contract or defeat a warranty. Nothing short of an express acceptance of the commodity, amounting to a waiver of the contract, could be an answer to this action.

The Solicitor General and Scarlett, contrà.-A conclusion may be made against the plaintiffs, (as evidence that the commodity complied with the warranty) who do not reject it when they may, but by their conduct induce the seller to think that they accept it. The seller may be deprived of important advantages by their delay. The shipper, against whom he has his remedy over, may fail. After two examinations, and a bill drawn and accepted, it was too late for the plaintiffs to change their minds. The custom, offered in evidence, was not unreasonable. It was not unusual to append a

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