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quashed the rate, and stated the above facts in a case for the opinion of the Court, upon the question whether the rate was properly quashed, because William Wilcock was not rated therein in respect of such stock in trade.

Upon this case being called on, after P. Courteney in support of the order of sessions, had stated that the question intended to be submitted, was, whether if stock in trade produce a profit, the usage can vary its rateability.

IS12.

The King

againsi Thelnhabitants

of AMBLESIDE.

Lord ELLENBOROUGH, C. J. said, Is there not another question, whether the rate ought not to have been amended, instead of being quashed ? As to the rateability of stock in trade, that has been settled in Rex v. Darlington (a), if it be ascertained to be profitable. It is then an objection applicable to one person, and the justices should have amended the rate, and not quashed it. The 41 G. 3. c. 23. was passed for the very purpose of enabling them so to do, in order to prevent the inconvenience of the parish being without funds for the maintenance of its poor in the mean time. We say, therefore, that this rate was not properly quashed, but ought to have been amended. If there are any circumstances to take it out of the general rule, as stated in Rex v. Darlington, they should be stated; if there are none such, the property is rateable. Rex v. White (b) is also to the same effect. Per Curiam,

Order of Sessions quashed.

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1812.

Thursday, Nov. 26th.

WM. PARKER and Another, Assignees of Samuel
Parker, a Bankrupt, against Smith and Others,

THIS

insurance on

In an action by THIS was an action of assumpsit brought by the asthe assignees of a bankrupt

signees of the bankrupt, in which the first and second underwriter, against defend. counts of the declaration were for money due for premibrokers

, for the ums of insurance, upon divers policies of insurance, on balance of an ships and goods, subscribed by S. Parker before he became adjusted account between a bankrupt, for the defendants; the third count was for the bankrupt and defendants

, money had and received by the defendants to the use of and also for S. Parker before his bankruptcy; the fourth, for money premiums of

had and received by the defendants, to the use of the policies under. written by the plaintiffs as assignees; the fifth, on an account stated by bankrupt with the defendants with the bankrupt before his bankruptcy; them as brokers, before the and the sixth, on an account stated by the defendants brokers are not with the plaintiffs as assignees since the bankruptcy. The entitled to dem, defendants pleaded the general issue : and at the trial beof premium due fore LeBlanc, J. at Guildhall, a verdict was found for the on policies, the premiums of plaintiffs for 3191. 10s. Id., subject to the opinion of the which policies formed a part

Court on the following case : of the adjusted account, but

The bankrupt was an underwriter, and the defendants where the

were insurance brokers at Lloyd's Coffee-house. Previous events entitling them to such to the bankruptcy of S. Parker, which took place on the not known till 27th of August 1810, namely, in the years 1808, 1809, after such ad

and 1810, he subscribed various policies of insurance justment; nor can they deduct which the defendants effected with him as brokers. In for returns.of premium on some of the policies for the premiums of which the action is brought, the events entitling them to whicle returns happened before the bankruptcy, but the returns were not adjusted; nor can they deduct for returns on other policies for the premiums of which the action is brought, the events entitling them to which returns bappe ned since the bankruptcy but before the commencement of the action ; the brokers not having a commission del credere, nor being personally interested in any of the insurances.

the

1812.

PARKER against SMITH.

the early part of 1810 an account was settled and adjusted between the parties up to the 31st of December 1809; and on the balance of such account there was due to the bankrupt 7981. lls. 6d. ; which balance consisted on the one side of the sum of 7181. 4s. 8d., being the balance of the account of the preceding 1808, as settled and adjusted between them, and of premiums of insurance upon policies of insurance underwritten by him for them as brokers in the said year 1809, and on the other side, of money paid by the defendants to the bankrupt on account, and of other money claimed by and allowed to them in respect of deductions and allowances for returns of premiums, of convoys, and short interest, and otherwise, and also for losses which had been adjusted by the bankrupt. This balance of 7981. lls. 6d. was reduced by payments in March and July following to 981. Ils. 6d. ; and in the year 1810, previous to his bankruptcy, the bankrupt subscribed for the defendants, as brokers, policies of insurance, the premiums on which (after making the usual deduction and allowance to the defendants as brokers after the rate of 51. for every 1051.) amounted to 11781., for which two last-mentioned sums this action was brought amounting together to 12761. lls. 6d. From this sum however the plaintiffs deduct, for returns for convoy, and short interest, allowed and settled by the bankrupt with the defendants before his bankruptcy, 911. ls. 2d. ; leaving their actual demand in this action 11351. 10s. 4d. The defendants have paid into Court 8661. Os. 3d.; and claim to deduct or retain the further sum of 3191. 10s. Id. for returns of premium for convoy and short interest, under the three following heads: first, the sum of 411. 12s. 4d., being returns upon three policies of insurance, the premiums of which form part of the account of 1809 adjusted and settled up to the 31st

of

1812.

PARKER against Smith.

of December in that year, and in part liquidated as aforesaid ; but the events entitling to these returns were not known to have happened until after that settlement. Secondly, the sum of 2321. 178. 9d. for returns upon some of the policies underwritten by the bankrupt in 1810, the events entitling to which returns happened before his bankruptcy, but the returns were never adjusted or settled by him. And, thirdly, the sum of 451. for returns in other of the policies underwritten by the bankrupt in 1810; the events entitling to these returns having happened since the bankruptcy, but before the commencement of this action. The defendants have no del credere commission, nor were they personally interested in any of the insurances. The question was, whether the defendants were entitled to deduct all or any of the said three sums, so claimed by them to be deducted from the plaintiffs' demand as aforesaid. If they were entitled to deduct all the three sums, then a nonsuit was to be entered: if any of the three sums, then the verdict was to be reduced accordingly: and if they were not entitled to deduct any of the three sums, then the verdict was to stand.

This case was argued in Michaelmas term 1811, by Parnther for the plaintiffs, and Abbott for the defendants. On the part of the plaintiffs, the case of Shee v. Clarkson (a) was distinguished from this, inasmuch as that was an action between the underwriter and broker, who was the common agent both of the underwriter and the assured, whereas here a bankruptcy had intervened, and determined the agency, and the assignees of the underwriter were the plaintiffs; and therefore it was said to be precisely similar to Minett and Another, Assignees of Barchard

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1812.

PARKER against Smith,

v. Forrester, C. B. Easter, 51 G. 3., which the Court of. C. B. decided upon that distinction. On the other hand it was contended, that the brokers were debtors to the assignees in so much only as they were bound in equity and good conscience to pay to the bankrupt; which was the amount of the premiums minus the returns which the bankrupt according to events had undertaken to pay; and which by the settlements between them before the bankruptcy, it appeared that the bankrupt had authorized the defendants, as agents for the assured, to deduct.

The case stood over for consideration, and on this day

Lord ELLENBOROUGH, C. J. delivered the judgment of the Court.

It appears by the case, that the bankrupt, Samuel Parker, as an underwriter, and the defendants as brokers, had been in a course of dealing together in the years 1808, 1809, and up to the period of Samuel Parker's bankruptcy, on the 27th of August 1810. That in the course of those dealings, at the time of adjusting their last balance, which was up to 31st December 1809, Samuel Parker, the underwriter, allowed the brokers to deduct from the money otherwise payable to him for premiums, what was due to the assured on various policies effected and held by them as brokers, for returns of premium for convoys and short interest, and otherwise, as the case states it; in effect, to deduct, as we must understand it, all that was claimable from the underwriter on account of the assured. As there was in this case no del credere commission paid to the brokers, the dealings with them must be considered as dealings with them merely in the character of agents for the assured, and not as dealings

virtually

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