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1820.

BENSON

v.

brokers who effected it. Admissions were then read, which stated that the defendant had put his initials to the memorandum of adjustment enMAITLAND. dorsed on the policy, and had struck a pen through his subscription at the foot thereof; that, immediately upon his putting such initials, and striking his pen through the subscription, the defendant gave the brokers credit in account for the loss in question; and they not only debited the defendant in account with the loss, but also gave the assured credit for it. It was then proved that, at the time of the adjustment, the defendant was indebted to the brokers, to the full extent of the sum claimed in the present cause, and that he continued so indebted until their bankruptcy. There was a running account between them, which used to fluctuate and vary, and which had frequently been in favour of the defendant. The sum at which the loss in question had been adjusted had not been actually paid. It was stated to be a universal practice at Lloyd's, in the case of an adjustment, for the broker to debit the underwriter with the adjusted sum; and to give credit to the assured for the same sum; and likewise to omit calling upon the underwriter for payment, until after the expiration of one month from the time of the adjustment. If, however, the underwriter should fail in the interval between the adjustment and the expiration of the month, the broker does not consider himself responsible to the assured. When the underwriter's liability is at an end, it is usual to take his name off the policy, by running a pen through his subscription. It was not proved

that the plaintiffs had recognized the mode in which the adjustment had been made and settled in this instance.

Vaughan, Serjt., for the defendant, contended that the assured were bound by the settlement made by their broker. The policy being in the hands of a person who had authority to sign the adjustment, he has adjusted and settled the loss. It cannot be necessary that in every case there should be actual payment in order to discharge the underwriter. If the loss be settled in account with the broker, who is the known and authorised agent of the assured, that will be sufficient, and will be binding upon the assured. Here the loss is not only adjusted, but the name of the underwriter is taken off the policy, which shews that his liability was considered to be at an end. The broker is alone responsible to the assured. He gives him credit in account for the loss; and is thereby estopped from saying, that he has not received it. The learned serjeant relied upon Edgar v. Bumstead, 1 Campb. 411. and Andrew v. Robinson, 3 Campb. 199.

BURROUGH, J. There can be no doubt but that by law the assured, and not the broker, is entitled in an action on the policy to recover from the underwriter the amount of the loss, or the sum at which it has been adjusted; and that right cannot be taken away except by some inveterate and universal custom. It is not pretended that any such custom has prevailed; and, therefore, I think there is no possible question in the cause. If there had'

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1820.

BENSON

v.

MAITLAND.

been any recognition or adoption by the assured of the mode in which the broker adjusted and settled the loss with the defendant, that might have altered the case: but, in the absence of any such recognition or adoption, the question must be governed by general principles; and I am decidedly and clearly of opinion that the plaintiffs are entitled to recover. In the cases which have been cited circumstances existed which plainly distinguish them from the present.

The plaintiffs had the verdict; and a bill of exceptions, which was tendered by the defendant's counsel, was afterwards abandoned. But in the ensuing term a motion was made to set aside the verdict and have a new trial, and also to open the consolidation rule, on the ground that the present case differed from other causes on the same policy which were stated in the consolidation rule; the amount between the broker and the underwriter being against the underwriter to the full extent of the sum claimed in the present cause; whereas in the others the account was in favour of the underwriter either in whole or in part. The court intimated a very strong opinion in favour of the plaintiffs; but, conceiving that the question as a matter of usage must be capable of full and entire proof on another trial, they suspended their judgment in this case, and allowed the underwriters to open the rule, and defend in two other cases.

Lens, Taddy, Serjts., and Campbell, for the plaintiffs.

Vaughan, Pell, Serjts., and F. Pollock, for the defendants.

1820.

BENSON

v.

MAITLAND.

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210

1820.

OXFORD CIRCUIT.

SUMMER ASSIZES, 1 GEORGE IV.

WORCESTER.

Coram BEST, J.

Wednesday,
July 19.

An indict

ment against a bankrupt under Stat. 5 Geo. 2. c. 30. for not making a full disclosure of his estate, should truly set out the

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a full and true disclosure and discovery of his estate and effects.

In the indictment it was averred that "afterwards, to wit on, &c. a notice in writing signed by notice requir- the major part of the commissioners was, according

ing him to surrender.. Therefore where the indictment

to the direction of the statute delivered to the said William Burraston personally, to wit at, &c. that the said commission of bankrupt had issued against him and that he had been declared bankrupt, and bankrupt to the said William Burraston was, by the said comsurrender &c. missioners last mentioned, thereby summoned and

averred that the notice required the

pursuant to

stat. 5 Geo. 2.

entitled &c. and on the production of the notice it appeared, that the title to the 49 Geo. 3. was substituted for that of the 5 Geo. 2,: held that the variance was fatal.

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