of a broker permitted by the assured to retain the policy which he had procured. Now, I agree, that, by leaving the policy in the hands of his broker, the assured clothes him with some authority. I think, that, by leaving the policy in the broker's hands, the assured clothes him with apparent authority to act as his agent in all matters arising on the policy; as, for instance, to claim and receive returns of all premiums for short interest, or for the compliance with warranties; to adjust and settle losses, and to receive the amount of them in cash, or, if the assured is cognisant of the practice of Lloyd's, in account. Perhaps it may be put as high as to say that he is clothed with au thority to do all that is incidentally necessary for carrying out the *contract in the policy thus left in his hands: see Richardson [*465 v. Anderson, 1 Campb. 43; Goodman v. Brooks, 4 Campb. 163. I do not wish to be understood as giving a decided opinion that he has so much authority; but there are at least grounds for so contending. But I am aware of no ground for saying, that, by leaving the policy in the hands of the broker, the assured gives him authority to cancel the contract altogether. An authority so extensive as that seems quite unnecessary: it is objectionable, as it would put the assured entirely at the mercy of his broker; and, until the argument of this case, I think I never heard it suggested that it existed. During the argument, I asked if there was any decision or dictum in support of this position. None such was quoted by the defendant's counsel. I am aware of none; and I think I am warranted in saying that no such decision or even dictum exists: and certainly on the present case there is no evidence that such an authority is given by practice. Nor can I think that the fact that the plaintiffs had on the 29th of April given Mr. Lascaridi written authority to cancel one assurance before the premium was paid or the policy executed, and procure another, clothed him with authority as their general agent to cancel any policy of theirs after the premiums had been paid and the risk had been covered for six weeks. It seems to me that the position contended for by the defendant amounts in effect to this, that the broker is the person contracting with the underwriter, free to make what bargains he pleases as to the contract made between them, and that the assured has no rights in the matter. But, so far is this from being the case, that, unless the policy be made in the broker's name (which in the present case it was not), the broker is a stranger to the contract, and cannot set up the loss on the policy by way of mutual credit, as an answer to *the claim against him of the assignees [*466 of the underwriter for premiums; not even when the broker has a lien on the policy: see Kosten v. Eason, 2 M. & Selw. 112; Lee . Bullen, 8 Ellis & B. 692, n. (E. C. L. R. vol. 92).

The leave reserved at the trial was, to enter a verdict for the plaintiffs, if, on the facts proved, "the policy was binding upon the defendant's company, and had been cancelled without authority." For the reasons I have given, I think the plaintiffs have made out both propositions, and consequently that the rule to enter the verdict for them. ought to have been made absolute; and I am therefore of opinion that the judgment should be reversed.

BRAMWELL, B.-I am of opinion that this judgment should be affirmed. The contract of assurance between the plaintiffs and the

company was to be in writing. No writing could be binding on either, unless binding on both: and it could not be binding on both till its terms were assented to by both. In my opinion no writing was ever agreed to by both in this case. I do not blame persons in trade or commerce because they disregard rules of law. They may find their profit in doing so, by a saving of trouble and otherwise. But those rules must be observed, and not evaded by supposing facts to exist which really do not. It is said in this case that the company or their clerks were agents of the plaintiffs to make and agree to the terms of the policy. With sincere respect, I think they were not. Is it a rule, that, where a written agreement is to be the agreement, and one party is to draw it up, he is the agent of the other to assent to its terms? Certainly not. Then why so here? Because the slip is the real agreement, and because the terms are certain, and because the policy is often left for a long time with the company, and because the premiums are paid between the various parties before *467] the policy is delivered out, and for the convenience of so holding? To my mind that is not enough. I doubt if the printed terms of a policy might not be varied, as, by making something express which was before implied, by providing for a condition of things not before foreseen. But, further, suppose the defendant's company was a new company, or this a first dealing with them,-why is the printed policy to bind? Again, suppose a mistake in the policy, wrong ship, wrong voyage, wrong sum insured? I know it would be said there was no authority in such case. But, what is to happen then? Is an action to lie against the supposed agents for not acting upon an authority given and accepted? And, what is to become of their claim to the premium? I am aware, that, if this reasoning is good, it would apply to a case where the policy made, but not delivered, was destroyed by the company after the loss was known. The best answer has already been given to this. Such dishonesty will not be practised. When it is, and becomes common, merchants will find it desirable to observe the rules of law, and will do so.

Doe d. Garnons v. Knight, 5 B. & C. 671 (E. C. L. R. vol. 11), 8 D. & R. 348, and similar cases, are distinguishable from this. There, the donee was to accept or refuse the gift as it was offered. Here, the plaintiffs had a right to have the document in certain terms to be arranged between them and the company.

MARTIN, B.-This is an appeal against a judgment of the Court of Common Pleas, which will be found reported in the 13th Common Bench Reports, New Series, p. 381. The material facts upon which the question depends are very simple. The plaintiffs had, in April, 1858, employed a broker called Lascaridi to effect an insurance upon. *468] a vessel called the Leonidas. *He applied to the defendants, who are an insurance company in London; and a Mr. Sprange on their behalf signed a slip for 10007., part of it. Lascaridi afterwards prepared a separate slip for the defendants, and left it at their office, in order that a policy might be made out in the usual course; which is, that, upon receipt of the slip, a policy is prepared by the officers of the company, and kept by the company until sent for by the assured or his broker. The slip was as follows:-[His Lordship read it.] The letters C/A mean "cash account:" and the custom is

for the insurance company to credit the broker and debit him with the premium, which is payable on the 8th of the following month; and it is the practice, prior to the expiration of the credit, to send to the broker at the end of the month a debit-note for the premium, less a discount and the brokerage. Lascaridi was debited by the defendants with the amount of the premium and stamp-duty, and he on the 1st of May sent to the plaintiffs an account debiting them with it, for which they accepted a bill which was duly paid at maturity. In the course of a few days a policy in the form usually adopted by the company was filled up from the slip and dated the 1st of May, 1861. A fac-simile of the policy accompanies and is part of this case. It is in the common form, except as to the conclusion, which is as follows,— "In witness whereof, and that the said company are content with this assurance for the sum of 1000l., we the undersigned directors of the said company for the London branch (on behalf of the said company, in pursuance of the powers and directions contained in the deed of settlement of the company), have hereunto set our hands and seals at London this 1st day of May, 1861." Then follow the signatures and seals of two directors, and an attestation-clause in the usual form.

*It clearly, therefore, purports to be a deed of two directors, who signed and attached their seals to it.

[*469 On the 8th of June, a debit-note for the premium was sent by the defendants to the office of Lascaridi, with a request for payment. A clerk of Lascaridi stated that no premium was due. A second messenger was sent with the policy and the debit-note, and he was told by Lascaridi's clerk that the policy ought not to have gone forward. Upon the same day, a clerk of Lascaridi called at the defendant's office, and said that the policy had been put forward in error, and requested that it should be cancelled; and thereupon a memorandum of cancellation was endorsed upon it and signed by two of the directors, and it was agreed that Lascaridi should be debited with the expense of the stamp, and the policy was handed to his clerk in order that if possible a return of the stamp-duty might be obtained. On the 2d of September, a clerk of Lascaridi called at the office of the defendants and produced the policy, and stated that it had been cancelled by mistake, and wished it reinstated. He was told, if the ship was safe, there would be no objection; and he was requested to call again for an answer. At 8.20 that morning intelligence had arrived at Lloyd's that the Leonidas was stranded, and ultimataly she became lost. The defendants on hearing of the loss declined the risk or to renew the policy.

It is admitted that the plaintiffs never authorized the cancellation; nor were they aware of it; nor did they ever receive back from Lascaridi the premium, or any credit for it.

The question is, whether, under the circumstances, there is a contract binding upon the defendants. The Court of Common Pleas were of opinion that there was not; and in my opinion their judgment is right, and ought to be affirmed.

[*470

*The present policy is a deed. It purports to be signed, sealed, and delivered; and a delivery is essential to constitute a deed: until the sealed writing be delivered, it is not a deed. Ten

ton, being one of the lines of road on which, under the 13th section of the said act of parliament, one full toll only can be taken; and that the Horsdon gate is situate at or near Tiverton, and is on the line of road leading from Hunt's house near Lowman Bridge, in the parish of Tiverton, to a place called the White Ball, in the parish of Sampford Arundell, being one of the lines of road on which under the same section two full tolls may be taken; that, on the 13th of January, 1863, the said Robert Wills paid for a wagon and one horse passing through *420] the said College gate at Collumpton *the sum of 9d., and took a ticket there, the said wagon having the fellies of the wheels thereof of less breadth than four and a half inches at the bottom or soles thereof; and that, afterwards, on the same day, he drove the same horse and wagon to the Horsdon gate, and produced to the said Patrick Williams the ticket which he had received at the said College gate at Collumpton as aforesaid, and claimed to be allowed to pass without paying any further toll; but that Patrick Williams demanded and was then paid the sum of 1s. 6d., being two full tolls for the said wagon and one horse.

Upon this state of facts, the justices convicted the said defendant Patrick Williams, and fined him in the sum of 1s., with costs 13s. 6d.

At the same petty sessions, Thomas Lovering, of the Castle tollgate, in the parish and borough of Tiverton aforesaid, toll-collector, appeared to answer an information laid against him by George Limpany, of the parish of Oakford, in the said county, charging that the said Thomas Lovering, on the 13th of January, 1863, at the Castle gate aforesaid, in the parish and borough of Tiverton aforesaid, did unlawfully demand and take from the said George Limpany the sum of 9d. as and for the toll of a horse and wagon then passing through the said gate, the said George Limpany having previously, on the same day, at a certain turnpike gate situate at Bampton, in the said county, and called the Duvale gate, paid the sum of 9d. as and for the toll for the same horse and wagon passing through the said Duvale gate, and having then and there produced and shown to the said Thomas Lovering a ticket denoting such payment.

Upon the hearing of this information, it was shown before the said *421] justices that the Castle gate is situate on the road leading from the works near the castle in the town of Tiverton, through Bolham and Cove to Bampton, and that the Duvale gate is situate on the road leading from Chapman's Bridge, by way of Duvale, into the road near Exe Bridge turnpike-gate leading towards Dulverton, being two of the roads on which, under the said 13th section of the said act of parliament, one full toll only can be received; that, on the 13th of January, 1863, the said George Limpany drove a wagon and one horse through the Duvale gate, for which he paid 9d., and received a ticket denoting such payment,-the said wagon having the fellies of the wheels thereof of less breadth than 4 inches at the bottom or soles thereof; that he proceeded to the Castle gate with the same horse and wagon, and produced the said ticket to the said Thomas Lovering, and demanded to pass without paying any further toll; and that the said Thomas Lovering demanded 9d. toll, which the said George Limpany paid.

The justices, under the circumstances, convicted the said Thomas Lovering in the penalty of 1s., and costs 13s. 6d.

The above informations were laid under the 4 G. 4, c. 95, s. 30.(a) *The before-mentioned turnpike-roads are comprised in The Tiverton Roads Act, 1861, by the 9th section of which it is [*422 enacted as follows,-"This act shall be put in execution for the purpose of more effectually improving, maintaining, and keeping in repair the several roads (among others) following, that is to say,the road from Hunt's house, near Lowman Bridge, in the parish of Tiverton, to a place called the White Ball, in the parish of Sampford Arundell, the road from the way-post in the North-East end of Leonard Moor to the White Hart, in Collumpton,-the road from the Eastern end of Broad Lane, in Tiverton, to Crediton Forches, in the parish of Crediton,-the road from Bickleigh Bridge Cross to a certain house formerly called the Swan Inn in Silverton, and from a place called Jenny's Post at or near a corner of the said road, by way of the Ruffwell Inn into the Exeter turnpike-road near the sixth mile-stone, the road from the works near the castle in the town of Tiverton, through Bolham and Cove, to Bampton,-the road from Chapman's Bridge, by way of Duvale, into the road near the Exe Bridge turnpike-gate leading towards Dulverton,-the road from the Eastern end of Belle Vue Lane to Mary Pole Head, and from thence to the one-mile post from the city of Exeter, near Mary Pole Head."

By the 11th section it is enacted, that, "on the 1st of January, 1862, and at all times thereafter, it shall be lawful for the said trustees to demand and take, or cause to be demanded and taken, at the several and respective toll-gates which shall be upon or on the sides of the said roads such tolls as the said trustees at *any of their [*423 meetings shall direct, not exceeding the sums following (among others), that is to say,-For every horse or other beast, except an ass, when drawing singly any wagon, cart, or other such carriage, the sum of 6d. For every horse or mule, laden or unladen, and not drawing, the sum of 1d.,-which said tolls shall be taken before any horse or other beast, cattle, carriage, or thing liable thereto, shall be permitted to pass through any toll-gate which shall by virtue of this act be continued or erected upon or on the sides of the said roads."

And by the 13th section it is enacted, that, "for passing and repassing any number of times on the same day, with the same horses, beasts, or carriages liable to toll, through any of the toll-gates to be continued or erected by virtue of this act upon any road hereinafter particularly mentioned, no more than the number of tolls hereinafter limited with reference to such road shall be taken, that is to say,two full tolls, and no more, upon the road from Hunt's house, near Lowman's Bridge, in Tiverton, to the White Ball, in Sampford Arun

(a) Which enacts, amongst other things, that "if any collector of tolls shall demand and take a greater or less toll from any person than he shall be authorized to do by virtue of the powers of any act, or of the orders and resolutions of the trustees or commissioners made in pursuance thereof, or shall demand and take a toll from any person or persons who shall be exempt from the payment thereof, and who shall claim such exemption, &c., or shall refuse or omit to give to the person paying the toll a ticket denoting the payment of the tolls, and naming and specifying the toll-gate at which such ticket has been delivered, and the toll-gate or tollgates (if any) freed by such payment, &c., then and in every such case every such toll-collector shall forfeit and pay any sum not exceeding 57. for every such offence."