was given to the applicant for insurance. It also appeared that Russell applied to the company for an enlargement of his powers as agent. The Secretary in reply to his letter observes, that the company could obviate the difficulty, "as far as consistent with the principle they had adopted, which was that no insurance shall be binding, until the premium is received at the office in New York":—and as a reason for the rule he adds that the company would not be responsible, "for the risk of the sending the premium either by land or water," and that in all cases where the risk is accepted, the policy is to take effect from the time when the premium was received by the agent. Before the receipt of the premium by the agent in the present case, the president of the company confirms that of the secretary, adding:—" so that in case of accident between such time of payment, and the receipt of the money here, the company will indemnify such loss; provided, however, the office shall recognize the rate of premium which you shall charge, and shall be otherwise satisfied with the risk." Woodworth, J. observes:-" According to the instructions thus given to the agent, when and in what cases were his agreements to insure binding on the respondents? Upon payment of the premium to the agent, the applicant for insurance was subject to the following contingences: first, that the premium should be received at the office in New York; secondly, that the rate of premium should be recognized at the office; and lastly, that the company should be otherwise satisfied with the risk.

"As to the first, no doubt can arise; for it depends on the fact whether the money has been received or tendered at the office in New York. As to the second, it was undoubtedly intended that if the rate of premium taken by the agent, conformed to the rules and regulations of the company, and was not less than the uniform rate before taken in other and similar cases which had invariably received the sanction of the respondents, the applicant would be entitled to a policy of insurance, commencing on the day the premium was paid; for, although it is provided, that the office shall recognize the rate of premium, it must be understood as having referred to the rules and regulations sanctioned by the board of directors, and the powers vested in the agent. The right of the company to exercise their judgment whether the agreement of the agent to insure, corresponded with the instructions given, cannot be questioned. But from the nature of the case it seems necessarily confined within such limits. It cannot be urged that the company reserved or intended to reserve the right of arbitrarily refusing to subscribe the policy, when every prerequisite which they had themselves prescribed, had been fairly and honestly complied with. It must then be confined within the bounds I have already traced; and if so, when the agent presents a case, having received the premium, the fair implication of the proviso is, that the company shall act upon it; and if they decline to act, or do not point out any objection, the presumption is, that none exists, within the true intent of the proviso inserted in the instructions.

He concludes by saying:-" If, then, we look to the instructions given, the proposals issued containing the rates of insurance, and the acts of the respondents in reference to similar cases, the conclusion seems to be irresistible,

that the risk and rate of premium were entirely satisfactory. The premium was also tendered in New York and refused, which is a compliance with the first part of the proviso. This, in my view, removes every obstacle in the appellant's way." A majority of the Court of Errors agreeing in this opinion, the decree of the Chancellor was reversed.

The underwriters name (by 35 Geo. 3 C. 63 s. 12,) must be subscribed to the policy either by himself personally, or by an agent. See the principle, Com. D. Atto. C. 1. 9 Co. 75 b. And when the instrument is signed by an agent, the name of the principal should be stated in the subscription, (Com Dig. Atto., C. 14,) in the following or a similar form: viz. "A. B. (the underwriter,) by E. F. agent." If a person employed as an agent to subscribe a policy should sign it in his own name, without naming his principal, he would be personally liable on the policy. Leadbitter v. Farrow, 5 M. & S. 345; Thomas v. Bishop, 2 Stra. 955. Where a policy is subscribed in the usual form, in the name of an underwriter, by an agent on his behalf, the agent may be appointed by a power of Attorney under seal, or by a written or verbal authority. If a deed under seal be executed by agent, a power of attorney, under seal is in general necessary, Horsely v. Rushstone, 7, T. R. 209. But, in an action on a policy of insurance subscribed by the defendants agent under a power of attorney, it is sufficient proof of the agency that the defendant is in the habit of paying losses upon policies, so subscribed by the agent in his name, without producing the power of Attorney. Haughton v. Ewbank, 4 Camp. 88; Neale v. Irwing, 1 Esp. 61. So where an affidavit was produced, in which the deponent stated that he had made the policy on the behalf of the defendant, and it appeared that the defandant had previously used this affidavit on a motion to put off the trial, the evidence of agency was deemed sufficient. Johnson v Ward, 6 Esp. R. 48.

A memorandum endorsed on the policy for a change of the voyage was signed by the agent of the company. It was proved that the agent had signed similar memorandums on many other policies, and that his habit was to do so, and advise the company of it, though when a policy was required, he always sent the proposals to the company: Held, that this was sufficient proof of the agent's authority; and that the other policies, on which the memorandums had been signed need not be produced. Brockelbank v. Sagrue, 5 C. & P. 21.

Where a power of attorney signed by the defendant was given to fifteen persons by name, "jointly or separately, to sign and underwrite all such policies as they or any of them should jointly or severally think proper" :—Held, that this was to be construed as a joint and several authority; and that the plaintiff might maintain an action on a policy underwritten by four of the persons therein named, Guthrie v. Armstrong 1, D. & R. 248; 5 B. & A. 628.

Semble, under a power by A. to B. to underwrite any policy not exceeding 100 £, and to subscribe to the same his (A's) name, and to settle and adjust losses &c., although B. cannot delegate his whole authority to another, yet, having signed a slip for the policy, the signature of his clerk for him, and in his absence, to a policy made in pursuance thereof, is a good execution of the

power, that being only a ministerial act, which he might authorise another to do for him, but he must himself execute the power in all matters in which his judgment and discretion are requisite. In the present case the policy after it was so executed by the clerk of B, having been shown to A, who then offered terms of settlement, it was held that A had adopted the act of B. Mason v. Joseph, 1 Smith, 406.

Agents of Foreign Offices.-It is provided, (by Massachusetts, R. S. p. 326. s. 40, 41.) that agents of foreign Insurance companies must deposit with the state treasurer a copy of his power of attorney from the company for which he acts.—And must also deposit with the treasurer a statement signed and sworn to by a major part of the directors of the corporation, specifying the amount of its capital, and the manner of its investment, designating the amounts invested, respectively, in mortgages, in public securities, in the stocks of incorporated companies (stating what companies,) and also the amount invested in other securities, particularizing each item of investment; and the agent shall publish such statement, in some newspaper printed in the county where he transacts his agency; and he shall on the first Monday in January, in every year, during the continuance of his agency, deposit a similar statement of the capital of the corporation, and the investment thereof to be annually made out, signed and sworn to, as before described.

It is also provided by the same statute (R. S. p. 326, s. 42.) that no person shall be allowed to act as agent for such foreign insurance company in making contracts of insurance with any person in this state, unless the capital stock of the company, for which he acts, amounts to $200,000, actually paid in in money and invested, exclusively of any obligations of the stockholders of any description, nor unless said company, shall be restricted, by its charter or otherwise, so that it shall not lawfully incur, in any one risk, a greater hazard than one tenth part of its capital.—And by s. 43 it is provided, that if any person shall, as agent, make or renew, directly or indirectly, any contract of insurance within this state, and with any person resident therein, without complying with the requisitions of the three first sections, or in any way contrary to the true intent and meaning of the statute, he shall forfeit for every such offense the sum, of $500.

S. 44. renders the agent liable to pay the tax of one half of one per cent. assessed on the amount insured within the state :-And s. 45. makes it the duty of such agent to make semi-annual returns to the treasurer of the state, (viz. on the 1st Monday in April and October, annually,) of the amount insured or procured to be insured by him in the state as such agent, during the then half year, and shall at the same time pay to the treasurer the said tax of one half of one per cent. thereon-And by s. 46. it is provided that if such agent shall neglect to make returns or be guilty of fraud in making such returns, he shall forfeit $1000.

S. 47. makes it necessary for such agent to give bonds to the state treasurer in the sum of $5000, conditioned to make such return and to pay such tax. And s. 48 provides that if any such tax or excise shall be hereafter imposed on the agents of insurance companies of other states, any person, acting or

proposing to act as agent in this state, for any company incorporated in another state, may proceed sixty days after the imposition of the tax before giving bond, or paying such tax, or making any return.

2. Of the Agents for the Assured.

In general an obligation to procure insurance, to be effected on behalf of another person cannot be imposed without the consent of the agent.

Insurances against fire are not in general effected by the agents on the part of the insured, but where such is the case the general rules as between principal and agent will apply, even if a person voluntarily, and without the expectation of any remuneration for his trouble, undertakes to procure an insurance to be effected, though, perhaps, he is not bound to perform his undertaking; yet if, in fact, he do proceed to execute it, he will be answerable for any negligence or unskillfulness in the conduct of it, as appears by the following case : (Wilkinson v. Coverdale, 1 Esp. R. 75,)—in an action on the case, the declaration stated that the plaintiff purchased certain premises of the defendant, who had a subsisting policy from the Phoenix Fire Office, which he undertook to get renewed on account of the plaintiff, and regularly transferred to him; that he did, in fact, renew the policy and paid £16, which he charged to the plaintiff, but neglected to get it transferred from himself to the plaintiff by the proper indorsement, in consequence of which the plaintiff, who sustained a loss by fire, was unable to recover on the policy. It was admitted that there was no consideration moving from the plaintiff to the defendant, who had gratuitously undertaken to get the policy renewed and transferred, on which Lord Kenyon expressed a doubt whether any action could be maintained on such an undertaking. To remove this doubt, the plaintiff's counsel cited Wallace v. Tellfair, 2 T. R. 188. n., a case similar to the present, in which Mr. Justice Buller ruled, that though there be no consideration for one party's undertaking to procure an insurance to be effected by another, yet where a party voluntarily undertakes to do it, and proceeds to carry his undertaking into effect by getting a policy underwritten, but does it so negligently and unskillfully that the insured can derive no benefit from it, an action will lie against him. Lord Kenyon acquiesced in this distinction and suffered the cause to proceed, but the plaintiff failed in the proof of any such undertaking and was nonsuited.

An insurance broker may be employed either directly by the owner of the property, or by a third person acting mediately as agent for the person beneficially interested and invested with an express or implied authority. An order given by a partner is binding upon the firm, but it is different with a mere part owner of property, although he be the managing owner. Commissioners appointed to manage and dispose of property, have been held to be clothed with power to effect insurance on the property entrusted to their management. It seems doubtful whether even a general agent to whom goods are consigned may not on account of the advance of the season, or other good cause, in the exercise of his discretion without being expressly directed, pro

cure an insurance to be made for the benefit of his principal, and charge him with the premium of the insurance. By Buller, J. 1 Bos. & Pul. 323.

An obligation to procure insurance, to be effected on behalf of another person, cannot in general be imposed without the consent of the agent ; but though no express consent has been given; it may be implied from the relation in which the parties stand to each other. There are three instances in which an order to insure must be obeyed. By Buller, J. 2 T. R. 189. First, where a merchant abroad has effects in this country in the hands of his correspondent, he has a right, it is said, to expect that the latter will obey an order to insure, because he is entitled to dispose of the money in his correspondent's hands in what manner he pleases. Smith v. Lascelles, 2 ib. 189. The second class of cases is where the merchant and his correspondent have been connected in a previous course of dealing, the one having been used to send orders for insurance which have been complied with by the other: the former has then a right to expect that his orders for insurance will still be obeyed unless the latter give him notice to discontinue that course of dealing. ib. p. 190. The third instance is, where a merchant abroad sends bills of lading to his correspondent in this country, and engrafts upon them an order to insure as the implied condition on which the bills of lading shall be accepted; the agent must then obey the order, if he accepts the goods, for the transaction is entire. ib; Corbett v. Gordon, 3 Campb. 473.

And when a person, though without consideration, undertakes to procure an insurance to be effected, and is consequently not under a legal obligation to perform his promise, yet if he proceed to carry it into execution, he will be liable for an injury occasioned by his negligence or unskillfulness. Williams v. Coverdale, 1 Esp. R. 75; Wallace v. Telford, ib. 76; Elsee v. Gatward, 5 T. R. 143; Seller v. Work, Marsh. Ins. 299: 1 Saund. 312, b. n. 2. When a policy broker was directed to effect a policy for which he was to receive no remuneration and he employed another broker, but omitted to deliver to him with the other instructions a letter containing material information respecting the time of the ship's sailing; and in consequence the underwriters refused to pay, the policy broker, although he derived no profit, was held responsible for the loss occasioned by his omission. Seller v. Work, 1 Marsh Ins. 299.

So although agents may be at liberty to renounce an order to insure, yet if they think fit to accept it, they are bound to carry it into execution as far as by law they may, according to the directions of their principal. Merchants in this country, who are entrusted to insure goods, and include the premium, cannot set up as a defense to an action for not insuring the premium, that they were directed to insure against British capture, for assuming British capture to be an illegal risk, its being inserted would not entirely invalidate the policy. Glaser v. Cowie, 1 M. & S. 53. But an agent is not bound to comply with an order to insure, if the order when effected would be unavailable in law, although underwriters may have been in the habit of paying losses on similar policies. Webster v. De Tastet, 7 T. R. 157. The order is not illegal, if the insurance is capable of being rendered lawful by license, before the completion of the adventure. Haines v. Busk, 5 Taunt. 521, 227. It is also to