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1816. DALLAS, Justice.--I am of opinion that the plain

tiffs are not entitled to recover. I rely upon Olive ARBOUIN

v. Smith, 5 Taunton 56. It has been holden that and Another

mutual credit in this act of Parliament is a term TRITTON

more extensive than mutual debts. It has been and Others.

applied to cases where parties have been trusting each other at the time of the bankruptcy, and has never been narrowed to pecuniary demands which were liquidated at the time. The defendants, therefore, have a right to retain this money against the dishonoured bills.

The plaintiffs were nonsuited.

Lens and Copley, serjeants, and Reader, for the plaintiffs.

Shepherd, S. G. and Campbell, for the defendants.

The case of Olive v. Smith credits; and the term, of itself determined this : that where a extensive, has been enlarged person, entrusted with value, by a most liberal construction, trusts his creditor with that not only in courts of law but which may become productive in courts of equity. It has of value, the first becoming been extended, indeed, by the bankrupt, the second may re authority of the Lord Chantain his debt out of the pro cellor sitting in bankruptcy, to ceeds of the thing entrusted to cases where an action would him, and only pay the balance. not lie at common law, and

The statute of 5 Geo. II. where the Court of Chancery c. 30. s. 28. relates not only would not, upon a bill, decree to mutual debts, but to mutual an account. Ex parte Deeze,

1 Atk. 228. French v. Fenn, is not to be confined to deal. 1816. Co. Bkt. Laws, 554. Atkinson ings in trade only, or in case v. Elliott, 7 T. R. 378. of mutual running accounts, ARBOUIN

But no debt or credit can be but it is natural justice and and Another set against each other, unless equity, that in all cases of mu

V.

TRITTON it accrued before the bank- tual credit the balance only

and Others. ruptcy. Ex parte Boyle, Co. shall be paid. Lanesborough Bkt. Laws 561; and mutual v. Jones, i P. Wms. 325.

, , though the parties did not mean Vaughan, Co. Bkt. Laws, 566. to trust each other. Hankey And see Ex parte Stephens, 11 v. Smith, 3 T.R. 507. So, it Vesey 24; and Parker. has been held, that this statute Carter, Co. Bkt. Laws 567.

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1816.

Leyi and Others, Executors of Angelo Levi,

0. BARNES.

THIS

over to the underwriters

demand of

An insurance THIS was an action brought for the balance of broker is not entitled, upon

an account claimed to be due to the estate the ground of

of the deceased. Money had been paid into Court, any usage of trade, to a

and the sum sought to be recovered was 54. Ancommission of 14 per cent. on gelo Levi, the testator, had been an underwriter, which he pays and the defendant was employed as his broker.

The main question in the case was, whether a who employ him. Such al- broker was entitled to an allowance of 12 per cent. ever general it on settling an account with the underwriter, over has been, is a and above his customary commission of 5 per cent. gratuity merely, and not a The plaintiffs contended, that this charge of 12 right. Norcan per cent. was a mere gratuity, and no legal right. it be claimed, The defendant claimed to deduct it, Ist, upon but upon the

the footing of contract, either

usage of trade; 2d, upon an implied contract in express or im- the particular case, to be inferred from the habit of the parties.

dealing between the parties. On the part of the plaintiffs several witnesses were called. They stated, that the 12 per cent. claimed was considered as a gratuity merely; that the allowance to the broker was formerly 10 per cent., and, within late years, had been augmented to 12. That it was allowed as an inducement to the broker to bring the underwriter good risks. That it was never paid in cases of bankruptcy. That it was sometimes, but not invariably, allowed in case of the death of the underwriter. That, where there was a difference between the broker and the underwri

ter, no allowance whatever was made. An under 1816. writer, in great business, stated that he received

LEVI 22,000L. on policies in one year without making and Others any allowance to the broker beyond his commis

BARNES. sion. The commission of 5 per cent. was due upon the gross premiums, and for whatever money the broker advanced for stamps, &c. on the policies which he procured, he was entitled to charge 5 per cent. additional.

On the part of the defendant several brokers were likewise called. One broker stated, that he had settled 200 policies, and had the commission of 12 per cent, always allowed. He stated the allowance (with the above mentioned excepted cases) to be universal ; and that, without such compensation, no broker could carry on his business. There was likewise evidence that in accounts between Levi and Barnes in the lifetime of the former, the 12 per cent. had been invariably claimed and allowed.

Shepherd, S. G. for the defendant contended, 1st, That this is a usage of trade incorporated in the contract, and the demand is reasonable. The broker becomes responsible to the underwriter for the premium, and he is liable to an action for it, whether he receives it or not from the assured. The per centage claimed is not on the gross business done, but upon the clear profits received by the underwriter. The broker gets nothing unless he hand over a balance to the underwriter; the trouble, therefore, is certain; the compensation contingent. 2d,

20, From the course and habit of

1816.

dealing between the parties a contract may be

inferred. LEVI and Others

Lens, serjeant, contrà.—This commission has BARNES.

never been demanded as a legal obligation but always as a gratuity. Though Levi and Barnes settled accounts on this footing, it does not appear that the money was paid on any other consideration than as a gratuity. It has sometimes been paid ; sometimes refused; and there is no evidence of its having been paid, when litigated. It is too variable to be called a usage, and there is no ground to infer a contract.

DALLAS, J.-I think there is no evidence of an usage of trade. The essence of usage is uniformity; but, in the present case, different allowances have been made at different times, and the demand is subject to exceptions arising out of circumstances. Now, if it were due of right, such circumstances would not prevail to exclude it. If it were demanded upon the usage of trade, surely an allowance of this magnitude, when refused by an underwriter, would have been compelled in a court of justice. But there is no case in which, when refused, it has been enforced as other rights

I shall leave the evidence to the jury; but it appears to me that there is nothing amounting to legal usage on the subject. It comes to no more than a gratuity given by the underwriter as an inducement to the broker to bring good policies to him. With respect to the second question it is for the jury to say, whatever might be the nature of the claim, whether there was an implied contract

are.

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