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plaintiff a loan on the security of the money to be recovered in the action :

Held, that the attorney had a lien on the 1001., and that, as it was not sought to set aside the arrangement between the parties, nor to put the defendants in a worse position, they might be restrained from paying the 1007. to the plaintiff till such lien was satisfied.

T. Jones had obtained a rule on the part of an attorney named Young, calling on the plaintiff and defendants to show cause why Young's bill of costs herein against the plaintiff should not be referred to the Master for taxation, and to ascertain the amount of Young's lien on the sum of 1007., for which this action had been compromised; and why the defendants should not be restrained from paying the said 100% to the plaintiff till such lien should have been satisfied.

The affidavits showed that Young was the plaintiff's attorney on the record in an action against the defendants, and that on the trial at the last Spring Assizes for Durham a verdict of 1007. was taken by consent for the plaintiff, subject to a point of law reserved. Subsequently the defendants, through their town clerk, offered the plaintiff 1007. in full for all damages and costs without prejudice, and Young advised the plaintiff not to accept the offer. The plaintiff personally accepted the offer, and gave the defendants' attorney notice not to pay the 1007. to any one but himself; and Young, hearing of this, gave a counter notice, as he claimed a lien on the 1007. for his costs. The plaintiff had paid him 607. for his costs before the trial, but the costs still due were considerably more than 100%.

It also appeared that the plaintiff had borrowed 8001. from a Mr. Bramwell, and, through the instrumentality of Young, had obtained from Bramwell a further loan of 1007. on the security of the money to be recovered in this action.

Holl now showed cause.

The so-called attorney's lien on a judgment is merely a claim to the equitable interference of the Court, to make the judgment in some way a security

for the costs; but here the Court will not interfere, for Young all along knew the sum recovered was assigned to Bramwell.

[CROMPTON, J.-I do not see that the plaintiff intended to pledge the costs as well as the damages.] The attachment of a judgment under the garnishee clauses of the Common Law Procedure Act, 1854, prevails over the attorney's lien for costs,

Hough v. Edwards, 26 L. J. Ex. 54. He also cited,

Barker v. St. Quintin, 12 M. & W. 441 ;
Simpson v. Lamb, 26 L. J. Q. B. 121.
[CROMPTON, J., referred to

Brunsdon v. Allard, 2 El. & El. 19; 28 L. J.
Q. B. 306.]

T. Jones, in support of the rule.

The question depends on authorities. The distinction is often lost sight of between cases where the defendant can be prejudiced and where he cannot. Brunsdon v. Allard (supra) was an application adversely to the defendant; but here I do not seek to disturb the settlement. The attorney's lien attaches where the action is compromised, or where there is an award,

Davis v. Lowndes, 3 C. B. 823;
Ormerod v. Tate, 1 East, 464.

There was here, it is true, no collusion, such as that spoken of by Lord Campbell in Brunsdon v. Allard (supra); but where the Court can do so, it will lay hold of money to put it in the right direction, Gould v. Davis, 1 Cr. & J. 415.

CROMPTON, J.-There is no sufficient evidence before Ime of an assignment. The plaintiff could not have intended to assign the whole sum, but only what he recovered over the expenses. The cases establish that the Court will not interfere with its equitable jurisdiction so as to set aside an arrangement made by the parties, unless there be extreme collusion and fraud, and it is pretty well settled now that the Court will not put the defendant in any worse position than he was in before. Here it is not proposed to do that, but to carry out the arrangement between the parties. There is nothing here to induce me to overrule Davis v. Lowndes (supra), and the old cases. Where the fruits of a judgment are in the hands of any party amenable to the jurisdiction of the Court, the Court will, under such circumstances as these, lay hold of them.

Bail Court. 25 Nov. 1863.

Rule absolute.

REGINA v. THE CORONER OF THE COUNTY OF YORK. Coroner-Juror not hearing all the EvidenceCertiorari.

Where a coroner's jury returned a verdict of manslaughter, and it appeared that one of them had not heard all the evidence vivâ voce, but that some of the depositions had been read over to him :—

Held, that this was sufficient ground for a certiorari to remove the inquisition, and that it made no difference that there was a sufficient number of jurymen without the one in question.

Temple, Q.C., had obtained a rule for a certiorari to bring up an inquisition taken before the coroner of Yorkshire. Amongst several objections taken, was one, that one of the jury did not hear all the evidence given viva voce at the trial.

Cleasby, Q.C., now showed cause.

The facts were, that, at an inquest upon the body of Sarah Greenwood, fourteen jurors assembled and were duly sworn, after which they proceeded with the coroner to view the body, and then returned to the club-room of the public-house. After they had so returned, one Blackburn who had been summoned on

the jury arrived, and told the coroner he had seen the body on the way. The coroner said this would not do, had him sworn, and sent him with a policeman to view the body, but did not go himself. According to the affidavit of one Barker, "the evidence had proceeded some time when Mr. Blackburn arrived and was sworn, but afterwards all the previous evidence was read over from the depositions in his presence." But, according to the affidavit of the foreman of the jury, "after Blackburn returned, the coroner and jury proceeded to take the depositions or evidence of the witnesses."

The coroner made no affidavit.

The insurance broker of the plaintiffs had by their direction made an executory agreement with the defendants (an insurance company) for a time policy on the plaintiffs' vessel; and a slip to that effect was signed by the broker and delivered to the defendants. Before the policy was ready, the broker, by plaintiffs' direction, instructed defendants to prepare a second policy in lieu of the first for a different time and sum, and a slip to that effect was made out by the broker and left by him at the defendants' office, as instructions to execute a policy, the premium to be debited to the broker, and payable in a month, according to the usual custom. The policy, dated 1st of May, was duly signed and

The jury found a verdict of manslaughter against a sealed on the part of the defendants, but kept, according Mr. Ingham.

This is an irregularity in the coroner, rather than anything that goes to the root of the jurisdiction; the objection is only as to the mode in which the evidence | was taken.

[CROMPTON, J.-It is a very serious objection: a man might otherwise be put on his trial for murder by one who had not seen the demeanour of the witnesses. It is a very different thing hearing what a witness states before the Court, and having the deposition read afterwards. It is clear on this evidence that a juror pronounced on the question who had not heard all the evidence viva voce.]

But there was a sufficient number of jurymen without Blackburn.

[CROMPTON, J.-It would be very irregular if a grand-juryman was to come in when a case was on, and take his account of it from the others: he is one of the consulting body. So in rating cases, if a Justice who is interested communicates with the other Justices on the Bench, though he takes no part in the decision, it vitiates the proceedings.]

An inquisition is traversable, and merely puts a man on his trial.

Temple, Q.C., and Maule, in support of the rule, were not called on.

CROMPTON, J.-I am only asked if there be sufficient ground for removing the inquisition, when it can be put in the Crown paper as a matter of course, and there may be an argument on it. I have no doubt at present on the facts; but it may be that, on the motion to quash, the Court will act on different affidavits. I think this question should be considered. Rule absolute.

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to usage, at their offices until it should be sent for by plaintiffs or their broker. On the same date the defendants debited the broker with the premium and stampduty, and the broker drew a bill upon the plaintiffs for the same. On the 8th of June, the month's credit having expired, the defendants applied to the broker for payment of the premium. The broker's clerk, however, without the knowledge or authority of the plaintiffs, stated that there was a mistake, and that no premium was due. The defendants thereupon sent the policy to the broker's office for inspection, but the broker's clerk declared that it had been cancelled, whereupon the defendants took back the policy and endorsed upon it, “Settled a return of the whole premium on the within policy, and cancelled this insurance, no risk attaching thereto." The plaintiffs, however, never authorised or knew of the said cancellation, nor were they repaid any part of the premium they had paid to their broker in respect of the said policy. The insured vessel having been lost within the time mentioned in the policy, the plaintiffs repudiated the alleged cancellation, and sued upon the policy:

Held, affirming the Court below (BLACKBURN and MELLOR, JJ., dissentientibus), that there had never been any delivery of the policy by the defendants so as to make a complete contract between them and the plaintiffs.

Plaintiffs were traders under the name of the General and Oriental Steam Navigation Company, and one Lascaridi was their insurance broker and agent. By plaintiffs' direction, Lascaridi had originally instructed defendants (an insurance company) to prepare a time policy on the ship "Leonidas" for 20007. A slip to that effect was duly made out and initialed by defendants' broker. The plaintiffs subsequently changed their mind, and Lascaridi, by their orders, instructed defendants to prepare a second policy in lieu of the first on the same slip. A second slip was accordingly made out which was signed by different underwriters at Lloyd's for a portion of the amount therein mentioned, and initialed by the company's broker on their for the company by Lascaridi for the sum of 1000l., behalf for 10007. A separate slip was also prepared and left by him at the company's office-being in the

shape of a request-note or mandate from the broker to the cancelled policy, the plaintiffs brought an action the company to make out and execute a policy.

It appeared on the evidence, that in the case of private underwriters at Lloyd's, it is the custom, in effecting insurances, to have but one slip, which is signed by the different underwriters for the amounts for which they are willing to become insurers; and a policy is subsequently prepared by the broker of the assured, and taken by the said broker to the different underwriters in succession for execution; but in the case of insurance companies a separate slip is prepared for each company by the broker; and the policy is afterwards prepared and filled up from the slip by the company's officers, and kept by the company until sent for by the assured or his broker.

The slip for 10007. contained on it the letters C./A., which signified that the premium was by arrangement between the broker and defendants to be entered in the cash account kept between him and defendants; and the custom as between insurance companies and insurance brokers is, for the companies to give credit to the brokers for the premiums, and to debit them in account with the amount of the premium; and when insurances are effected for cash, or on a cash account, a month's credit is given; that is, all premiums for insurance effected during each month are payable on the 8th of the succeeding month; and it is the practice to make out, prior to the expiration of the credit and send to the broker at the end of the month, a debit note for the premiums due, less discount and brokerage.

against the company, and at the trial, Erle, C.J., directed the jury if they believed defendants' witnesses to find for defendants, leave being reserved to plaintiffs to move. A rule nisi was obtained in the Common Pleas, on the ground that the Chief Justice ought to have told the jury that there was no cancellation binding on the parties; that Lascaridi's clerk had no authority to assent to such a cancellation, and that the conduct of Lascaridi and his clerk could not bind plaintiffs; or for a new trial on the ground of misdirection. The rule being discharged,* plaintiffs now appealed.

Lush, Q.C. (Sir G. Honyman, with him), for plaintiffs, cited,

Doe d. Garnons v. Knight, 5 B. & C. 671 ;
Butler and Baker's Case, 3 Rep. 25;

Taw v. Bury, Dyer, 167a;
Alford v. Lee, 2 Leon. 110.

Bovill, Q.C. (Hawkins, Q. C., with him), for defendants, cited,

Townson v. Tickell, 3 B. & Ald. 31 ;
Marston v. Allen, 8 M. & W. 494.

Cur. adv. vult.

The Court being divided in opinion, delivered judgment seriatim.

MELLOR, J., after stating the facts, observed: On the trial of the cause, a verdict was found for the defendants, the question being reserved whether the policy, which purported to be under the seals of two directors of the company, had ever been executed, or, if executed, had

been cancelled.

The Court of Common Pleas were of opinion with

the defendants, holding that the policy in question "never was perfectly delivered so as to vest a right of action in the plaintiff's, and that the original executory contract for the last insurance had been rescinded before breach."

I have come to the conclusion that that judgment is

erroneous.

On 1st of May, Lascaridi was debited by defendants with the premium, and on the 1st of May the plaintiffs paid over to their agent, Lascaridi, the amount of their premium, and of the stamp-duty on the insurance. On the same day, in pursuance of the second agreement, the policy for 1000l. was duly made out, signed, sealed, and delivered by two directors of the company, and kept according to due form in the company's custody till it should be sent for by plaintiff's or their broker. On the 8th of June a debit-note for the premium and stamp was sent by the company to Lascaridi's office with a request for payment, when one of Lascaridi's clerks, without plaintiff's knowledge or order, declared that nothing was due, and on the policy being forwarded by the company for inspection, stated that there was a mistake, and that the insurance had been cancelled. On this the company took back the policy, and indorsed on it "Settled, a return of the whole premium on the within policy, and cancelled the negotiation; but, when he had arranged the terms, this insurance, no risk attaching thereto." This memorandum was signed by the directors and secretary, and the policy so cancelled was delivered to Lascaridi's clerk to enable him to procure a remission of the stamp-duty. It was admitted that plaintiffs

never in fact at any time authorised the said cancellation, or were aware of it, nor ever received from Lascaridi any part of the premium or credit for the same.

The vessel being lost during the time mentioned in

It nowhere appears from the case that Lascaridi had any special authority, but had merely the ordinary authority of a broker to effect an insurance on the ship: and, when that insurance was effected, his authority ceased. During the negotiation, and so long as the terms were unsettled, or the policy not executed, as between himself and the defendants, he might have assented to any alteration of terms, or have abandoned

and made out the slip in conformity with his instrucin the usual course filled in the policy, and the directions from the plaintiffs, and the defendants had tors had signed and sealed it in due form, and merely

retained it in their own possession "until sent for by the action did thereupon vest in the plaintiffs, who alone assured or his broker," it appears to me that a right of

31 L. J. C. P. 364.

from thenceforth could cancel or rescind the policy. The premium, &c., had been paid as between the plaintiffs and the defendants by their course of dealing with the broker. The broker had prepared the slip in perfect conformity with his instructions; the policy in the usual course had been filled in by the defendants in conformity with the slip delivered by the broker, and was signed, sealed, and delivered, and attested, in the usual manner, and was then simply kept in their custody "until called for by the assured or their broker." If the assured or their broker had called or sent for the policy between the time of making it and the time of presenting the debit-note to the broker's clerk and his refusal to pay the premium, it would have been handed over to them as a matter of course. The defendants had done all they had intended to do to complete the policy; and I cannot understand what necessity there could be under the circumstances for any acceptance of the deed by the plaintiffs or their broker. Neither the plaintiffs nor their broker had any right to object to the form or terms of the policy; and the taking manual possession of the instrument by the plaintiffs or Lascaridi was in no respect essential to its binding effect.

In the judgment of the Court of Common Pleas it appears to have been assumed that there existed in the present case circumstances amounting to a repudiation and disclaimer of the policy on the part of the plaintiffs, or their authorised agent, at the time of the delivery, which being acquiesced in by the defendants prevented its becoming a complete instrument.

I can find nothing in the statement which warrants that assumption. I think, therefore, that the present

In the judgment of the Court of Common Pleas it is stated that "the company had a right to suppose Lascaridi to be invested with full powers from the beginning to the end of the transaction, both with respect to the preliminary contract and the policy to be founded thereon." I do not quite apprehend whether it is intended to be thereby conveyed that Lascarid. had larger powers than are usually incident to the authority of a broker in the negotiation of an insurance. If that be intended, I am bound to express my dissent; as I can see nothing in the case to support that view. I am therefore of opinion that the judg ment of the Court of Common Pleas ought to be reversed.

BLACKBURN, J.—In this case the question reserved at the trial, and argued in the Court of Common Pleas and in this Court, has been, whether the policy in question was ever so executed as to be binding on the defendants' company; or, if it had been executed, whether before action it had been cancelled, so as to be no longer binding on them.

The Court of Common Pleas have given judgment in favour of the defendants, discharging the rule to enter the verdict for the plaintiffs. After an attentive consideration of that judgment, I am unable to concur

in it.

I think that the result in this case depends more on the view taken of the facts than on any question of law. I shall therefore begin by recapitulating what I conceive to be the facts as appearing on the case. It appears that it was proved at the trial that Mr. Lascaridi was employed as an insurance-broker for the had any peculiar authority from the plaintiffs : and we plaintiffs' company. There is no statement that he must take it that his authority was neither more nor less than the usual authority given to one employed as a broker in the manner stated. The plaintiffs' com

case comes within the rule as stated by Bayley, J., in delivering the judgment of the Court of King's Bench in Doe d. Garnons v. Knight (5 B. & C. 671, 8 D. & R. 348)" Upon these authorities, it seems to me, that, where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery pany had authorised Mr. Lascaridi to obtain for them

but the keeping of the deed in the hands of the executing party, nothing to show he did not intend it to operate immediately, that it is a valid and effectual deed, and that the delivery to the party who is to take by it, or to any person for his use, is not essential." And again, quoting a dictum of Lord Ellenborough's, "The law will presume, if nothing appear to the contrary, that a man will accept what is for his benefit."

I am therefore of opinion, that, so soon as the policy was filled in and signed, sealed, and delivered by the two directors whose names and seals appear to the policy, everything was done on the part of the company, which was intended to be done to complete the execution: and, from that moment, although the policy was retained by the company until sent for by the assured or their broker, it was a binding and complete instrument. That being so, I am clearly of opinion that the broker had no authority to bind the plaintiffs by obtaining or agreeing to the cancellation thereof by

the defendants.

per

cent.

insurances to the extent of 50007. on the steamer "Leonidas," between England and the Baltic, from the 25th of April to the end of the season, at 8 guineas Mr. Lascaridi in the usual way prepared slip containing these terms, and it was initialed by amounting to 30007., and by an authorised clerk of the different private underwriters for sums in the whole

defendants' company for 20007. This, as is well known, different underwriters who have initialed, that they amounts to an agreement between the broker and the shall bear the risk to the extent to which they have initialed the slip, and shall receive the premiums accordingly; and this agreement is perfectly binding in mercantile honour, and but for the operation of the stamp-laws would also be enforceable at law. Before, however, any policy was executed, or any premium paid, the plaintiffs became desirous of cancelling this insurance, and in lieu of it of insuring on the steamer for 40007. for all seas for a year from the 30th of

* See Parry v. Great Ship Company, 3 N. R. 79.

April, at 10 guineas; and they instructed Mr. Lascaridi as their broker to do so. He applied to the defendants' company, who consented to the cancellation of the former slip, and initialed a new slip, by which they agreed to insure 10007. on the steamer on this altered risk. Some at least of the other underwriters consented to a similar cancellation. It would rather seem, from the documents set out in paragraph 9 of the case, that they did not all do so; but this is not material: we have only to deal with the insurance for 10007. on the "Leonidas" for a year from the 1st of May, at 10 guineas per cent., to which the plaintiffs, through their broker and the defendant, agreed finally and bindingly in honour, and, but for the stamp-laws, at law, by initialing the slip (set out in paragraph 9 of the case) on the 30th of April.

mentioned slip, and dated the 1st of May. A fac-simile of that policy accompanies the case, and is to be taken as part of it." On looking at the policy, I find that it concludes in the following form,-"In witness whereof and that the said company are content with this assurance for the sum of 10007., 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 said company) have hereunto set our hands and seals at London this 1st day of May, 1861 :" and, on the face of it, it seems that it purports to be signed and sealed by two gentlemen, John Du Croz and R. Sutherland; and it purports to be " signed, sealed, and delivered in the presence of R. M. Scaife, Res. Sec. ;" though the position of the name of this gentleman is such that it is a little ambiguous whether he attests as a witness to the execution by the directors, or countersigns as secretary.

The policy in this form continued to lie in the office of the defendants' company. I think we must presume that this was in accordance with what is stated in the case to be the practice, viz. that it was "kept by the company till sent for by the assured or his broker." In the meantime, on the 1st of May, the plaintiffs paid Mr. Lascaridi the amount of the premiums. Nothing whatever more was done until the 8th of June.

The course of business is that stated in paragraphs 6 and 7 of the case. The broker, after the slip is initialed and the assurance agreed on, prepares a policy, which he sends round to the different private underwriters, who sign it. But, with regard to insurance companies (with each of whom there is always a separate policy executed according to the mode which is binding on that particular company), the course is different. It is thus stated in paragraph 7,-"In the case of insurance companies, a separate slip is always prepared for each company by the broker of the assured, and the policy is afterwards prepared and I have been thus particular in stating these facts filled up by the officers of the company, and is kept by and dates, because it seems to me that the first questhe company until sent for by the assured or his broker." tion to be determined, is, whether during the interval Such being the general practice, in this particular between the affixing of the seals and names of the two case Mr. Lascaridi prepared a separate slip, which he directors to the policy and the 8th of June the plainleft at the office of the defendants' company, as is tiffs really were insured. All parties evidently constated in paragraph 10, "in order that a policy might sidered them as being so. The period during which the in the usual course be made out from it by the de- ship was to be covered was running on, the premiums fendants' company." That slip, as it is called, is set were paid, and the plaintiffs thought their risk covered : out in the case. It apparently is on a printed form yet, according to the argument for the defendants, this supplied by the company to the broker, and filled up so was all a mistake. The company, if a loss occurs at that it contains all the necessary particulars for the any time whilst the policy is lying in their office with filling up of a printed policy of the company, so as to their seal affixed, and ready to be given to the assured, carry out the agreement already come to. It is not but kept by them according to the practice till sent for initialed or signed on behalf of the company, and is by the assured or his broker, may (it is said), if disnot, like the first slip, a memorandum of the terms on honest enough, resist any attempt at law to make them which the parties had agreed to insure, but a request-pay, as the policy was not binding. As brokers, from note or mandate from the broker to the company to their well-founded confidence in the insurance commake out and execute a policy according to the prac-panies, probably often leave the policies for a considertice. It is dated the 30th of April. On that slip are the letters C/A, signifying "Cash Account," an explanation of which is given in the case, and on which I shall have to make some comments; but in the meantime I proceed with the narrative of the events in the order in which they happened.

On the receipt of this slip, the defendants' company, on the 1st of May, debited Mr. Lascaridi in account with the amount of the premium, 1057., and with the cost of the stamp of the policy, 21. It is stated in the case, at paragraph 14, that, "in the course of a few days afterwards, a policy in the form usually adopted by the defendants' company was filled up from the last

able time at their offices, sometimes even till the risk is run off, it is a question of some importance whether the companies can under such circumstances resist a claim. I am perfectly well aware that no respectable company would try to do so, or that, if they attempted it, they never would do business again in London; and therefore it may be said to be of less importance. But I cannot think it satisfactory when the rule of law is such as to baffle the intention of the parties, and the real bargain is only fulfilled when parties are too honest to take advantage of the iniquitous benefit given them by law. Such cases do arise under the Statute Law not uncommonly; but they rarely arise

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