not to be paid over, if the event on which it was returnable ascertained the amount of the deduction before the premium was paid; and that in such case the underwriter was entitled to receive no more in the first instance, than he would be ultimately entitled to retain on the balance of the premium account. By this determination, the rule which was to govern the rights of the respective parties on the contract, became more intricate than was suitable to cases of such frequent occurrence. The rule hitherto adopted between the broker and the underwriter had been simple and intelligible; it was defined with a suitable precision, and corresponded with those decisions which had obtained in cases of an analogous character. It was considered, that, as the assured had no concern in the contract between the underwriter and the broker as respected the premium, which was their own distinct account; so the return of the premium, and the payment of losses, were matters between the assured and the underwriter, in which a broker, who had not a del credere commission, could have no right to mix or engage. The payment for losses and the return of premium were new

claims, and of a distinct nature. They arose from events subsequent to the insurer's right to the full premium. The broker could not sue in his own name for the return of premium; how then could he, in an action brought by the underwriter or his assignees for premiums, set it off. It was merely an accident that the premium remained in his hand. But that, which was an incldental circumstance, could not give him a right of action or of set off, which is correlative.

The case of Shee v. Clarkson was much shaken in the subsequent cases of Minett v. Forrester, 4 Taunt. 541. and Goldschmidtv. Lyon, ibid. 534, and in the case of Parker v. Smith, 16 East, 382, the decisions in the Common Pleas were confirmed and acted upon in the King's Bench. In Minett v. Forrester it was determined, that an insurance broker, who was indebted to the estate of a bankrupt underwriter for premiums, could not, without an especial authority, set off against the debt sums due from the underwriter for return of premium. Whether the returns became due before the bankruptcy or after the bankruptcy? In that case, Mansfield, Ch. J. in delivering the judg ment of the Court observed in

substance, that in Shee v. Clark son, the judgment of the King's Bench seemed to have proceeded very much on the circumstance of the plaintiff (who in that instance was the underwriter himself) having been constantly in the habit of settling and adjusting with the broker, and always allowing, out of the premium which he was to receive, what was due from himself to the assured for returns of premium accruing for short interest, or for any other reason. He was therefore, in fair intendment, the common agent both of the underwriter and the assured. But where a bankruptcy had intervened and determined the agency, (which was the case of Minett v. Forester) the authority given by the underwriter ceased, and when he became a bankrupt his right to the premium was communicated to the assignees, who had never constituted the broker their agent, either with reference to an adjustment or otherwise; they had a right therefore to compel him to pay the premium for the benefit of the bankrupt's estate; and how could he make himself the agent of the assignees for the purpose of detaining money to be paid by the bankrupt to the insured? In Goldschmidt v. Lyon, the decision went upon

the same principle as in the former case, viz. that a broker who was indebted to the assignees of a bankrupt for premiums due to them upon policies subscribed by the bankrupt before his bankruptcy, was not entitled to set off returns of premium due upon the arrival of ships which had arrived since the bankruptcy. In Parker v. Smith, which was likewise an action by the assignees of an underwriter against insurance brokers, for the balance of an adjusted account between the bankrupt and the defendants, and also for premiums on policies subscribed by the underwriter before his bankruptcy, it was determined, first, that the brokers were not entitled to deduct for returns of premium due on policies, the premiums of which policies formed a part of the adjusted account, but where the events entitling them to such returns were not known till after such adjustment. Secondly, Nor could they deduct for returns of premium on some of the policies for the premiums of which the action was brought, the events entitling them to which returns had happened before the bankruptcy, but the returns on which had not been adjusted. Thirdly, Nor could they deduct