be remembered, that the authority of a broker, like that of any other agent is capable of revocation. And Lord Ellenborough, C. J., held that it might be revoked after the signing of the slip, and before the execution of the policy, and consequently, that a broker procuring a policy to be effected under such circumstances, cannot charge his employer with the premiums or commission paid on the execution of the policy. Warwick v. Slade, 3 Campb. 127. Duties to insured. An agent cannot in general delegate his authority. The agent is bound to do what is usual, in order to get the insurance effected, but is not obliged to procure insurance at all events. And where no particular directions are given as to the manner in which insurance is to be made, the agent will be protected in the exercise of his discretion, provided he acts bona fide to the best of his judgment. When his discretion is not fettered, he may effect the insurance at a well known and established office, although the terms of other insurance offices might be more beneficial to his employer. See Hughes Ins. 95, et seq.

Liability to insured. When a broker, who has been ordered to effect a policy, represents that he has executed the order, it seems that an action of trover may be maintained against him for the instrument, although no policy has been actually entered into; and in such an action the person who employed him, on proving his loss, will be entitled to recover to the amount of his actual interest, deducting the premium. Harding v. Carter, Park, 4. For any negligence or unskillfulness, by which his employer is deprived of the benefit of an insurance, the broker is liable to the same extent as the underwriter would have been if the agent had performed his duty.

An agent cannot dispute the title of his principal; and therefore, if a person as agent for two partners, effect an insurance, charge them for the premiums, and on a loss happening, receive the insurance money, he cannot afterwards be heard to allege that one only was owner of the property insured. Dixon v. Hammond, 2 B. & A. 310.

Insurance brokers who retain the policies in their hands are bound to use reasonable diligence in settlement of losses that occur, 2 Campb. 343. And they are only entitled to receive payment for the assured from the underwriter in money; and a custom to set off the general balance due from the broker to the underwriter in the settlement of a particular loss is illegal. Therefore, al though the broker may have adjusted a loss with the underwriter, and struck his name out of the policy, yet if the underwriter has not actually paid the loss to the agent or broker, the insured may recover it from the underwriter. Todd v. Reid, 4 B. & A. 210. It is to be observed, however, that it does not appear that the underwriter at the trial succeeded in bringing his case within the custom, as proved. 3 Stark. 16. But until there is an actual payment to the broker, or a credit given, the underwriter is liable for the claim to the assured. Russell v. Bangly, 4 B. & A. 395; Jell v. Pratt, 2 Stark, R. 67.

Rights against insured. The broker may maintain an action against the insured, even before he has actually paid the premiums to the underwriter, to recover the amount of them as money paid to his use. Dalzell v. Mair, 1 Campb. 441; Airy v. Bland, Park 36; Marsh. Ins. 294. The premium is con

sidered as paid at the time of effecting the policy. And after payment of the amount of a loss by a broker to his principal, the broker cannot recover it back, on the ground of his not being aware at the time that one of the underwriters had become insolvent; Edgar v. Bumstead, 1 Campb. 441; nor can be after settling an account, receiving the balance, and suffering two years to elapse, make a further claim upon his principal on such a ground. Jameson v. Swaisnton, 2 ib. 576. He is entitled to no expenses incurred in effecting an illegal insurance. 3 Ves. Jr. 343; 2 Wils. 133.

The remedy of an insurance broker to recover for charges is either by action or lien. Brokers have a lien for a general balance due from their employers upon the policies; and have a right to apply in satisfaction of that balance, money received by them on account of the insurances. But when the person employing a broker is himself an agent, and that circumstance is known to the broker, the latter has no lien against the principal for the general balance due from the party by whom he is immediately employed. Nor can a broker, who has reason to conclude that his employer acted as agent, claim a right to retain for a general balance, though the policy is effected in the name of his employer. But on the other hand an insurance broker who effects a policy without knowing or having any reason to believe that the party from whom he receives the order is not a principal, has a lien upon the policy for a general balance due to him from that party, and has a right to apply in satisfaction of that balance, money received upon the policy even after notice that his employer was himself merely an agent. The broker cannot then be divested of his rights on account of a fact of which he was ignorant when he effected the policy; he cannot be compelled to deliver up to a stranger, the policy which he effected under an implied contract that he should hold it as a security for the balance due to him from his immediate employer. The agent by whom the broker is employed is guilty of a breach of duty towards his principal in not disclosing to the broker that he is a mere agent in the transaction, and is liable to an action for his misconduct; but the broker who has reason to believe that he is the principal is entitled to retain the policy till his general balance is satisfied. By parting with the possession of the policy, the broker will lose his right of lien: but it seems that his lien will revive on regaining the policy, although it is put into his hands for a particular purpose ; as, for instance, for the purpose of collecting an average loss from the underwriters. Hughes Insu. 102, et seq.

2d. An insurance broker is liable to the underwriter for the premium, and in certain cases for the amount of a loss paid through mistake. The policy usually contains a receipt for the premium, which is conclusive as between the insured and insurer, and in the absence of any fraud, precludes the latter from recovering it as against the insured. In general the broker alone is liable for the premiums. The insurers may resort to the broker for recovery back of the amount of a loss which they afterwards discovered to be fraudulent, where he has not paid it over to his principal. And the mere passing of such money in account, without any new credit given, is not equivalent to a payment of the money to his principal.

Ꮯ Ꮋ Ꭺ Ꮲ Ꭲ Ꭼ Ꭱ Ꮩ .

OF THE FORM AND REQUISITES OF A POLICY OF INSURANCE.

The policy of insurance, is a written contract, signed by the insurer, or an agent on his behalf; or, in the case of an insurance by a corporation, by the authorised agent of the company, who is usually the president. The instrument is not authenticated by the signature of the insured, or the party by whom the protection of the policy is sought.

The Massachusetts Revised Statutes, p. 321, s. 13, makes it necessary that “all policies shall be subscribed by the President, or in case of his death, inability, or absence, by any two of the directors, and countersigned by the secretary of the company; and they shall be binding upon the company in like manner as if executed under the corporate seal thereof."

The premium paid on the insurance, the sum insured and the name of the insurer must by the law and practice, be inserted in the policy. (See Form in Appendix.)

In Levy v. Merrill, 4 Greenl. R. 180, where a marine policy contained the words "Touching the risks I am willing to bear, the same as contained in the regular policies of insurance, and should any difficulty arise in adjusting this policy, I am willing that the same should be adjusted according to the rules established at Loyd's or at the regular insurance offices in the United States." Defendant insisted that the policy did not extend to a capture, and offered to prove by parol that such was the understanding of the parties. Weston, J. "The form of the policy now used in London and which it seems has varied very little for 200 years, embraces losses arising from men of war, pirates, enemies, rovers, takings at sea, arrests, restraints, detainments of all kings, princes and people of what nation, condition or quality soever." These risks among others are to be found also in the common printed forms in this country. Loss by capture, then being one of the usual risks contained in regular policies, is clearly included in the one in question. And we are not at liberty to vary a contract, the terms of which are thus explicit, from any considerations drawn from the amount of the premium, or from the letter of the assured to the correspondent, adduced to shew the sense of the contract, written with a view to obtain indemnity from another quarter.

1. Contract when consummated. An assured can recover on a policy executed after the loss has accrued, and become known to both parties. Thus, in Mead v. Davison, 3 Adol. & Ell. 303, a policy of insurance on a ship, lost or not lost, is good, the ship having been accepted for insurance, and the pre

mium paid, before loss, although the policy was not actually executed and stamped till loss had happened, and both insurer and insured know it. The insured bought and paid for the underwriter's promise to indemnify. If his ship had arrived, the underwriter could have kept the whole premium: though she has perished, he cannot be relieved from his agreement. Equity would have compelled him to execute the formal policy, whenever tendered to him: in voluntarily executing, he has only performed a manifest duty, and cannot now retract the obligation.

There must be a complete contract of insurance between the parties; a negotiation which has not resulted in a contract, is not sufficient. 10 Pick, 326. Where the premium has been paid at the proper office of the company, and the authorised agent or officer has acknowledged the receipt thereof, it is not to be doubted that the insurance would be as binding as if a policy had been executed. Such receipts are in common use, and are intended to give immediate effect to the insurance, and supply the place of a formal policy, until one can be prepared. It is settled that these receipts are as binding as a policy could be. In truth, the receipt answers all the use of a policy, except that the latter authorizes the assured, in case of loss, to sue in a court of law, instead of being obliged to resort to a court of Chancery. Per Woodworth, J. in 4 Cowen, 661.

Where the plaintiff wrote by mail inquiring the terms of insurance, and the defendants wrote in reply stating the premium; but on the next day wrote again and retracted their offer. In the mean time the plaintiff had accepted the offer made by letter, which had been put into the post office, notifying defendants of such acceptance before the receipt of the second letter: Held that the contract was not consummated. M'Cullock v. The Eagle Ins. Co., 1 Pick. 278. However, the case of Mactier v. Frith, 6 Wend. 116, is different.

The policy in general is supposed to contain the whole of the contract, The insurers having a description of the property in their possession, are presumed to insert in the policy itself, as much of that description as they deem material, and by omitting any part of it, they show that they are content to take such part as a representation merely, and to look to it only, for the purpose of estimating the risk. 1 Cond. Marsh. 451. Every paper referred to in the policy, is not to be considered as incorporated in it. By Oakley J. 2 Hall, 628. A reference in the policy in general terms to a description of the buildings filed in the office, is not to be considered as incorporated into the policy, so as to amount to a warranty that the buildings shall conform exactly to the description. Delonguemare v. The Tradesman's Ins. Co. 2 Hall, 589.

A description of the subject of insurance may, when embodied in the policy, amount to a warranty that the subject is such as the policy describes it to be. To have that effect, however, it seems that such description must appear on the face of the policy: it is not sufficient that the descriptions or expressions are contained in other documents to which the policy may refer. Consequently a description in a report or survey, not incorporated in a policy, nor attached to it, as part of the accompanying instrument, is held not to be a

warranty, simply because the policy refers to it, as containing a further specification of the property insured. By Jones C. J. ib.

The "printed forms, calculated as they are for ordinary risks, and containing the provisions and conditions usually attached to insurances upon them, must necessarily be general and comprehensive in their terms, and cannot be adapted to insurances upon other and special hazards. It is the ordinary course of effecting insurances, that upon each application, a special agreement is made between the applicant and the underwriter, designating and describing the premises required to be insured, and settling the terms of that `particular insurance, and the policy is then completed by filling up the blank spaces, left for that purpose in the printed form, with suitable words and clauses to express the contract thus agreed upon. This is the usual mode of consummating the contract, and it is the general practice to leave the printed form of the policy unaltered, without expunging or modifying the parts of it which conflict with the written clause. ib.

“But these written clauses nevertheless contain the elements of the contract, and being framed under the immediate eye of the parties, and without a reference to the terms of the previous arrangement between them, they not unfrequently present a contract to which some of the printed parts of the policy are inapplicable, and as effect must be given to the acknowledged intention of the parties, they must necessarily supersede or control such of the printed clauses as would if enforced and literally applied, be inconsistent with them. In this policy a written description is given of the premises insured, which designates and describes the buildings and their contents in general terms as a manufactory of china ware. The agreement is to insure the plaintiff upon a factory of that description in actual operation, and upon the machinery and stock finished and unfinished contained therein. This is a vital part of the contract and must have its full and entire effect and operation, uncontrolled and untrammelled by the printed parts of the policy. It was the purpose and design of the memorandum of special rates, to which the policy refers, to enumerate and specify the several trades, business and vocations which were supposed to endanger the safety of the buildings insured, and to entitle the underwriter to a higher rate of premium, and it was the object of the prohibitory clause, to provide that the exercise of those extra hazardous trades should not be permitted, unless with the assent of the insurers. But that general provision was not adapted, and could not be intended to apply to a trade or vocation, which the policy in terms insures, or by necessary implication permits.

"The written and the printed parts of the policy, when they harmonize, are equally operative and binding upon the parties; but whenever they come into conflict, the written clauses, as expressing the special agreement and declared intention of the parties at the time of the contract, must prevail, and the printed parts of the policy be held subordinate, and be taken and construed in the qualified and restricted sense, so as to confine them to the declared purpose and intention of the parties as expressed in the written clauses. On that principle, the express written agreement of the company to insure a manufac