resolution for the adoption of the Act is final and conclusive, after the time mentioned in sect. 20, unless the boundaries have been properly settled. I think it is open to considerable doubt whether, when the Secretary of State has exceeded his power, in settling the boundaries of this District, as must be assumed for the purpose of the present argument he has done, every thing which has taken place subsequently is not invalidated. But I do not wish that my doubts should have any effect in delaying the decision of this case, by taking time for consideration, or by hearing further argument. Rule discharged. 1861.. Ex parte SMITH. END OF TRINITY TERM. Thursday, June 13th. Insurance. Suppression of material fact. Principal and agent. Money had and received. HOLLAND against RUSSELL. A., as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A. was in possession of a letter from the captain, informing him that the ship had received injury, which fact he, without fraudulent intention to deceive, omitted to disclose to the underwriters. The ship was lost, and B., one of the underwriters, paid to A. his amount of the insurance; but, having subsequently become acquainted with the above circumstance, brought an action for money had and received against him to recover it back. 4., before he was aware of B.'s intention to dispute the policy, and acting bonâ fide throughout, transmitted to his principal the money he had received from the various underwriters; with the exception of a certain amount for which he had allowed the principal credit in a settled account, and of another which, with the authority of the principal, he had expended in a suit brought by him on behalf of the principal against C., another underwriter on the policy: held, 1. (In accordance with the decision in Russell v. Thornton, 4 H. & N. 788, affirmed on error, 6 Id. 140), that, in consequence of the concealment from the underwriters of the fact stated in the captain's letter, the policy was voidable at the election of the underwriters. 2. That A. being only an agent, of which B. was aware, and having, without notice of B.'s intention to repudiate the contract, paid over to his principal the amount received from the underwriters, B. was not entitled to recover back from A. his amount of the insurance. 3. That there was no difference in this respect between the money actually paid over by A. to his principal, and the moneys which had either been allowed in account between them or expended in the suit against C. 4. Quare, whether B. would have been entitled to recover, if he had not known that A. was acting merely as agent? HIS was an action for money paid, money had and THIS received, and on accounts stated. Plea, never indebted. Issue. At the trial, before Cockburn C. J., at the London Sittings after Hilary Term, 1861, it appeared that the action was brought under the following circumstances. The plaintiff was an underwriter at Lloyds, and the defendant a ship and insurance broker, carrying on business in London. On the 19th January, 1857, the defendant, acting as agent for the owners of a steam ship called "The Butjadingen," who were resident in the duchy of Oldenburgh, effected a policy of insurance on the ship, from the 21st January 1857 to 20th January 1858; which policy was underwritten by the plaintiff for 2001. also by a person of the name of Thornton for 3000l., and some others. The policy was in the usual form, and stated the insurance to be entered into by the defendant "as well in his own name, as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all;" the value being fixed at 11,000, namely, 70007. on the hull and materials, and 40007. on the machinery. The insurance was effected by the defendant through the agency of Messrs. Hodges & Johnson, insurance brokers, the latter of whom was a member of Lloyds. At the time of the insurance the ship was abroad under a policy from the 20th January 1856 to 20th January 1857, and, a few days previous to the execution of the present policy, the defendant received a letter from the captain dated 6th January 1857, from Carthagena in Spain, stating that on the 2d of that month she had gone aground in the bay of Almeria, when she sprang a serious leak, and had reached Carthegena in a sinking state, at which place she was then undergoing repair. This information the defendant sent to Lloyds, where entry 1861. HOLLAND V. RUSSELL, 1861. HOLLAND V. RUSSELL. was made of it in the book, and the plaintiff became aware of the fact; but at the time of effecting the policy he did not know that the defendant had received such a letter from the captain; for the defendant having been induced to believe that the statements in the letter were exaggerated, and knowing that the ship would be repaired under the previous insurance, did not think it necessary to communicate them to the underwriters. The ship was totally lost in October 1857, and in December of that year the amount for which the plaintiff had underwritten the policy was paid by him to the defendant. Thornton, however, who had also underwritten the policy, refused to pay his share of the loss, and an action was brought against him by the present defendant; in the course of which the circumstance of the receipt of the captain's letter having come to light, the defendant in that action succeeded, on the ground that the policy was void, a material fact having been concealed from the insurers by the assured. See Russell v. Thornton, 4 H. & N. 788, affirmed in the Exchequer Chamber, 6 Id. 140. The proceedings in Russell v. Thornton having given publicity to the fact that that letter had been received by the defendant before the policy was executed, the present plaintiff made application to him to have the amount which he had paid on the policy returned. With this the defendant refused to comply, and this action was accordingly brought. Before it was commenced, and before he had received any notice from the plaintiff of his claim to be repaid, the defendant had transmitted to his principals the whole of the money, amounting in all to 80007., which he had received from the various underwriters on this policy, with the excep tion of two sums of 6071. 3s. 10d. and 6087. 10s. 1ld. The first of these he accounted for with his principals thus: he had a claim against them for disbursements and commission, and in his account delivered at the end of the year he entered that sum of 6077. 3s. 10d. to their credit, and struck the balance, which proved in their favour, and credited them with that balance in the next year's account, both of which accounts were accepted and ratified by the principals. The latter sum he had, by the authority of his principals, applied towards the payment of the expences of the action of Russell v. Thornton, which amounted to nearly 10007. The Lord Chief Justice left to the jury to say whether the omission by the defendant to communicate the contents of the captain's letter to the underwriters was done with a fraudulent intention to deceive. The jury having found in the negative, a verdict was entered for the defendant; with leave to the plaintiff to move to enter the verdict for himself for 2007., or such other sum as the Court should direct, if the Court should be of opinion that, upon the facts proved, he was entitled to recover back the sum paid by him to the defendant in ignorance of the letter; the Court having power to draw inferences of fact. Bovill, in Easter Term 1861, obtained a rule accordingly. This rule was argued during the Term, on the 30th May: before Cockburn C. J., and Wightman and Blackburn JJ. Lush and Watkin Williams shewed cause.-If this VOL. I. 2 G 1861. HOLLAND V. RUSSELL. |