of anchorage and for the absence of the ordinary riding light, and to relieve the Kjobenhavn from any imputation of negligence upon those two points.

The question however remains, whether she was justified in keeping up her bright mast light and omitting to lower it to that height above the deck, namely, a height not exceeding 20 feet, at which, according to Article 7 of the Regulations for Preventing Collisions, a riding light ought to be carried. Upon that point their Lordships have in the course of the argument felt considerable doubt. It has been said that not having the proper riding light she ought to have taken away the masthead light altogether, and to have put up some globular light, which it is supposed might have been found in the engine room, or the particular globular light which after the collision which is the subject of this action, was really put up, viz, a lantern ordinarily in use in the forecastle. But considering the state of the vessel, and the short interval of time which elapsed between the two collisions, their Lordships are not satisfied that there was time in which that lantern, supposing it would have answered any effectual purpose, or in any degree have affected the collision, could have been put up. They therefore think that negligence cannot be imputed to the Kjobenhavn by reason of her omission to exhibit that forecastle light before the second collision.

It is then said that at least she might have lowered the masthead light? but even if her failure to do this be taken to have been an act of negligence, which their Lordships, considering all the circumstances of the case, are not satisfied it was, the question would remain, whether that negligence can be said to have caused or contributed to the collision ?

That question necessarily opens the inquiry into the conduct of the other vessel. Now the Mermaid was coming up the river and had gone round the Ovens Buoy at a distance of one ship's length from the buoy, at a very high speed, at a speed which has been almost admitted in the reply to have been improper. It cannot be taken upon the evidence to have been less than eight or nine knots through the water, and therefore eleven or twelve miles over the ground. Again the conclusion which their Lordships draw from the evidence is that the look-out kept on board the Mermaid was very imperfect. There was nothing in the position of the two vessels to prevent the Mermaid, if she had kept a proper look-out, not merely for the buoy, but for the vessels ahead of her, from seeing that bright masthead light at a considerably greater distance than that at which the witnesses agree she first saw it, namely, half a mile. They cannot then acquit the Mermaid, coming at this rate of speed upon a vessel with a bright masthead light visible above the fog about her, of culpable negligence in respect to this collision. But the point immediately to be considered is whether the Kjobenhavn, by reason of her carrying that bright masthead light was guilty of negligence contributory to the accident. The case of the Mermaid is, that seeing this masthead light at a distance of half a mile and half a point on her starboard side, she came to the conclusion that the vessel that carried that light must be under weigh and coming down the river. She admits that she did not see any side

[CHAN.

light. Her master and others on board of her say they supposed that the smoke coming from the factories, or the mist had obscured those lights; but they admit that they saw no side light. In those circumstances the master chose to assume that the two vessels were meeting end on, and that he was acting in obedience to the sailing rules by porting her helm.

It seems to their Lordships that he was not justified in that conclusion, and that he cannot be said to have been deceived into executing that manoeuvre by merely seeing the bright masthead light. The Mermaid had this light a little on her starboard bow, and she saw no side lights; and in these circumstances their Lordships are of opinion (and in that opinion they are confirmed by their assessors) that her proper manoeuvre, even if those on board of her believed that the other vessel was moving down the river, was to starboard her helm and to go towards the south shore so as to pass in the mid channel outside the Kjobenhavn. Not seeing the side lights of the other vessel, she had no reasonable grounds for supposing that that vessel would port her helm so as to cross her course and come into collision with her. Their Lordships are also informed that according to the ordinary course of navigation, a steamer coming down the river would keep along the north shore until she came to Ovens Buoy, and then, and not until then, would stand across the reach.

Therefore it cannot be said that either by reason of a strict adherence to the sailing rules, according to which she would not be justified in coming to the conclusion that the two vessels were meeting end on unless she saw the side lights, or by reason of any general or established course of navigation in that part of the river, the Mermaid was right in porting her helm. And since it is clear that had she starboarded she would have gone clear of the Kjobenhavn, it follows that the exhibition of the masthead light was not an act of negligence which contributed to the collision.

For these reasons their Lordships are of opinion that the court below was right in holding that the Mermaid had failed to establish a case of negligence contributing to the accident against the Kjobenhavn, and that if it were necessary to pronounce any opinion on that point, the Mermaid was solely to blame for the collision. Their Lordships will therefore humbly advise Her Majesty to affirm the judgment of the court below, and to dismiss this appeal, with costs.

Appeal dismissed and decree affirmed. Solicitors for the appellants, Cattarns, Jehu, and Cattarns.

Proctors for the respondents, Dyke and Stokes.

COURT OF APPEAL IN CHANCERY. Reported by E. STEWART ROCHE and H. PEAT, Esqrs., Barristers-at-Law.

Tuesday, March 3, 1874.

(Before the LOBD CHANCELLOR (Cairns) and the LORDS JUSTICES.)

ATTORNEY GENERAL V. TERRY.

Navigable river-Obstruction-Injunction. Where the owner of a wharf abutting on a navigable river drone piles into the bed of the river, and

thus caused an obstruction which diminished by three feet the navigable breadth of the river in the front of the wharf, such navigable breadth having been sixty feet prior to the erection of the obstruction:

Held (affirming the decision of the Master of the Rolls) that this was a substantial interference with the free navigation of the river, and that it ought to be restrained by injunction. (a) THIS was an appeal from a decision of the Master of the Rolls.

The hearing in the court below is reported ante, p. 174, where the facts of the case are fully stated.

The Master of the Rolls having granted an injunction, the defendant appealed.

Fischer, Q.C., and G. Beaumont, in support of the appeal, conterded that no case of obstruction or public nuisance had been established against the defendant; no evidence was produced of any vessel having been impeded or injured by reason of the alleged obstruction. Indeed the works erected by the defendant would be a benefit rather than a hindrance to the navigation of the river. At all events, on the principle of the maxim" De minimis non curat lex," the obstruction, if any, was so infinitesimally slight that the court ought not to interfere by injunction. They cited

Hale de Portibus Maris, Hargreave's Law tracts
p. 85;

Attorney-General v. The Mayor and Corporation of
Kingston-on-Thames, 12 L. T. Rep. N. S. 665; 11
Jur. N. S. 596;

Taylor on Evidence, p. 54;

Angel on Carriage by Water, p. 200;
Rex v. Russell, 6 B. & C. 566;

Rex v. Ward, 4 Ad. & E. 384;

Reg v. Randall, Car & M. 496;

Attorney-General v. The Sheffield Gas Consumers'
Company, 3 De G. M. and G. 304;

Rickett v. Morris, 14 L. T. Rep. N. S. 835; L. Rep.
1 Sc. App. 47-60;

Attorney-General v. The Earl of Lonsdale, 20 L. T.
Rep. N. S. 64; L. Rep. 7. Eq. 377;

The Sandwich Haven Improvement and Regulation
Act, 1847, s8, 12, 37.

Without calling upon

Roxburgh, Q.C., and E. P. C. Hanson, who appeared in support of the order of the Master of the Rolls,

The LORD CHANCELLOR (Cairns).-In disposing of this case I refer merely to facts as to which there is no controversy, and make no reference to facts that are in dispute between the parties.

Its

The river Stour is a navigable river, which seems to be considerably used, especially by ships trading in connection with the town of Sandwich. navigation was placed in a special manner under the guardianship of the Corporation of Sandwich by an Act of Parliament passed in 1847, by the 12th section of which act the Mayor and Corporation of that town are themselves prohibited from constructing any work in the river without the consent of the Admiralty, and by the 37th section the water bailiff, an officer of the Corporation, is authorised to remove any obstruction. I refer to that Act for the purpose of pointing out that it was considered of great public importance to preserve navigation of the river Stour unimpeded, and that a special duty devolved upon the relators to keep the river free from obstruction.

The defendant has a private wharf and a ware

(a) See note (a), ante p. 174.

[CHAN.

| house, in front of which there is a way for horses and foot passengers, over which the public had a free right of passage, and high up over this way there is a projecting hutch or loft, which forms part of the defendant's warehouse, from which the defendant pulls up and lets down goods. Before the commencement of the works complained of, there had been a row of old piles in front of the wharf, which had been placed there some sixteen years ago, perhaps for the purpose, on the one hand, of preventing injury to ships from their scraping against the river bank, and, on the other hand, of protecting the river from injury which would be occasioned by ships rubbing against and bringing down the banks. These old piles rotted away, and there was no distinct evidence before the court who had placed them there; but it is sufficient to say that if they had occasioned any obstruction to the navigation of the river, no right was thereby acquired by the owners of the ground opposite to them to continue the obstruction.

The defendant, finding that his warehouse was sinking, and that he could not place anything in the nature of a support upon a public way between the river and his warehouse, had driven piles deep into the soil of the river, and erected a platform, resting on a tripod, floored over at the top and boarded on the front parallel to the bank. This projects three feet into the river, and the practical effect of it is that the defendant has provided himself with a wharf three feet in width ontside his old wharf. He uses this structure in the first place for the purpose of supporting his warehouse by fixing poles from it to the foundations of the warehouse; and he further proposes to send a shoot from the hutch up above to the floor of the platform erected on the piles, and to use this shoot for the purpose of loading and unloading vessels ranged alongside the platform. At this part of its course, the breadth of the river Stour for navigable purposes is about sixty feet at high water there is sixty feet of navigable space for ships drawing from eight to eleven feet of water, the ordinary class of ships employed on the river. I think that the evidence clearly establishes that prior to the erection of this structure a ship drawing not more than eight and a half feet of water could at high water have ranged close up to the defendant's wharf and have remained close to that wharf, and that ships drawing more than eight and a half feet of water would probably have grounded. Now, all ships that could have got close up to the old wharf are compelled to range up against the new structure, three feet further out.

The undoubted effect of this is, whether we take the case of ships lying against this new projection, or of ships not lying there at all, that the defendant has lessened the navigable breadth of the river by about three feet; in other words, he has taken and abstracted three feet out of sixty. It has been strongly urged that there is no real obstruction, and that this court ought not to interfere, but I feel bound to say that this is exactly one of those cases in which it is proper that such an act should be challenged at the very outset by the persons appointed to act as conservators of the river. In my opinion, if three feet be taken unchallenged at one time, it is very likely that six feet would be taken at another time, and although I cannot say that there might not be an obstruction of such a very trifling nature that this court

V.C. B.]

would not interfere, I am prepared to hold without any qualification that this substraction of three feet from the navigable breadth of the river is a tangible and substantial interference with the free navigation of the river, which ought at once to be challenged by the corporation in performance of the duty, with which they had been entrusted, of preserving unimpaired the navigation of the river, and ought to be restrained by an injunction of this court.

The question of the towing path is out of the case; it crept into the decree per incuriam. I regret that application was not made to the Master of the Rolls as to that mistake, but that ought not to make any difference iu the order to be now made. The appeal must therefore be dismissed with costs.

Lord Justice MELLISH was of the same opinion, This was an indictable nuisance upon which a jury, properly directed by a judge, would give a verdict. The piles were erected in the stream of a navig. able river where every foot was required for the purposes of navigation. There might, indeed, be places by the banks of the river where the water was so shallow that it was practically of no use for navigation, and as to such places that which would otherwise be a nuisance might not be such as to make it the duty of this court to interfere to prevent it, but in places which were actually useful for navigation there was no difference between the obstruction of them and of a highway, It was no answer to the bill to say that there was room enough left for navigation, and that if ships were navigated with skill and care they would not suffer from the obstruction. The public had a right to navigate over the whole space of the river. Neither was it any answer to say that the obstruction only occurred at certain states of the tide, that it made no difference to ships drawing eleven feet of water, and that in some respects the works complained of would be advantageous. The advantage of one person could not be set off against the disadvantage of another. If this was, in the ordinary course of navigation, an obstruction, it was in point of law an indictable nuisance, and that being so it was the duty of the Court of Chancery to restrain it by injunction.

Lord Justice JAMES was of the same opinion. He only desired to add that where a public body was entrusted with the duty of being conservators of a river, it was their duty to take proceedings to prevent any obstruction to the navigation of the river. This was eminently a case for their interference.

Appeal accordingly dismissed with costs. Solicitors for the appellants, Lowless, Nelson, Jones, and Thomas.

Solicitors for the respondents, Prior, Bigg, Church, and Adams,

V.C. BACON'S COURT. Reported by the Hon. ROBERT BUTLER and F. GOULD, Esq., Barristers-at-law.

Feb. 13, 17, and 18, 1874. GREAT WESTERN INSURANCE COMPANY v. CUNLIFFE. Marine insurance-Principal and agent-Negligence-Broker's allowance-Jurisdiction.

[V.C. B.

justing and paying losses, for which he was to receive a commission of 5 per cent. upon the premiums made in each year. The company also effected insurances in this country through O. On the 8th Dec, 1865, C. received instructions from the company to reinsure fifteen ships upon which their lines were full. C. endeavoured to effect the insurances, but in consequence of news of a disastrous gale he was unable to do so except at exorbitant rates; he therefore wrote the same day to the company, informing them thereof, and stating that he left it to the company, if they deemed it necessary, to insure on their side where it could be done at a profit, instead of here, where it would have to be done at a loss. After sending this letter, C, made no further attempt to insure these ships. Before the company received this letter, one of the ships which C. was directed to reinsure was wrecked and thereby a loss was incurred by the company:

Held, that C. had not discharged the duty cast upon him as the company's agent to reinsure, by writing the above letter, and that he was liable for the loss which had been sustained in consequence of his neglect to insure as directed, and was not entitled to set-off against such loss the amount of the premiums which, by not insuring as directed, he had saved the company.

Under the "credit" system of conducting marine insurance business, which was the system adopted by C., it is customary for the underwriter to allow a discount of 12 per cent. to the broker upon the settlement of accounts with the broker at the end of the year :

Held, that C. was not entitled to retain the discount for his own benefit, but must account for the same to the company.(a)

THE plaintiffs, who were a marine insurance company, carrying on business in New York, in 1858 constituted the defendants, Messrs. John Pickersgill and Son, their agents, the nature of the agency being expressed in certain letters, which, as far as they were material, were as follows:

The first of these letters, dated the 15th June 1858, was from Mr. Lathers, the president of the plaintiff company, to the defendants, in which he stated:

This company, for the purpose of extending its usefulness, proposes to make some of its policies on cargoes on cotton, and other produce destined for Europe, payable in London or Liverpool in case of loss or claim, and in such caseswill issue printed certificates on such risks,adjustable and payable there by an agent, to be selected for that purpose. The reputation of your house induces me to tender the appointment to your good selves, and the object of this letter is to ascertain if such an appointment would be agreeable to you, and what compensation you would expect for such service. I send you also a copy of the company's charter containing the last fiscal statement.

In reply to that letter, the defendants wrote, on the 29th June 1858:

We shall have much pleasure in undertaking your agency for settling and paying claims, on the usual terms say 2 per cent. on the amount paid.

On the 26th July 1858, Mr. Lathers wrote:

Sir, I am favoured with yours of the 29th ult.,accepting the agency of this company, for the purpose of adjusting and paying losses, the compensation to be 24 per cent. on the amount actually paid. Perhaps it would be well for you to employ an intelligent clerk, at a moderate salary, and set apart a special desk for his use, at the expense of the company, as, with your permission, we shall

V.C. B.]

frequently have reinsurance and other business negotiations to make through you. Our Southern Cotton business is very large and increasing, and often requires heavy reinsurance on cargoes by British vessels, which we cannot always get covered here. We are compelled to take these large amounts, as they come under our numerous open policies. Indeed, we often have excessive lines from East India and other distant parts, falling under open policies, which cover bankers credits. Is it practicable to get them reinsured with your underwriters? Could I rely upon being able to place from 50 to 100,000 dols. through you at any time, current rates?

In answer to that letter the defendants wrote, on the 15th Aug. 1858:

We are in receipt of your favour of the 29th ult., appointing us agents in this country for the Great Western Insurance company. With regard to reinsurances, we do not anticipate any great difficulty in effecting at Lloyd's any you may have at the current rates, and the conditions usual at that establishment, provided that there is nothing very unusual or extraordinary in the risk, and that you give us instructions to reinsure as early as practicable.

The agency so constituted continued until the 26th June 1863, when an agreement of that date was entered into between the plaintiffs and defendants, which, after reciting that the plaintiff company were desirous of appointing agents in this country to take risks on their behalf, and to issue policies to the parties in respect of the risks so taken, and that the defendants had agreed to accept such agency, it was witnessed that the defendants should become and be the exclusive agents of the plaintiffs in London, "for the purpose of taking risks upon ships or freights, or upon goods," &c.; and the defendants were also to act as such agents, for the purpose of investigating, and settling, and adjusting and paying all claims" that might arise upon such policies, and of resisting claims which ought not to be paid.

66

The defendants were to keep proper accounts "of all moneys received for premiums of insurance, and of all moneys paid and disbursed by them in respect of the settlement of any claims upon policies issued by them," and interest was to be allowed upon the balances from time to time in their hands. In the absence of written instructions to the contrary, the amount to be taken upon any one ship was to be left to the discretion of the defendants.

The defendants were to receive as remuneration "for conducting the business as such agents," a commission of 51. per cent. upon the premiums made in each year, to be calculated upon the premiums, after deducting therefrom the discount to be allowed to the assured, and the usual brokerage of 51. per cent. allowed to the broker; but in the event of any premium being lost, the commission upon such premium was to be calculated upon the net amount, after deducting the brokerage and discount that would have been allowed had such premiums been duly paid at maturity. These commissions were to include all charges for settling, adjusting, and paying losses, averages, or returns on policies issued in London or Liverpool.

On the 24th Nov. 1865, the plaintiffs wrote the defendants a letter which, so far as was material, was as follows: "Annexed, please find a list of vessels from Gulf ports upon which we are already full, and should you have taken any risks upon any of them you will please reinsure." The defendants received this letter on the 8th Dec., at which time they had taken risks upon fifteen of the vessels named in this list, amongst them being the Roger A. Heirn, upon which they had taken a

[V.C. B.

risk of 3500l. The defendants sent one of their clerks, a Mr. Bullen, to Lloyd's for the purpose of effecting the reinsurances, but in consequence of advices of a most disastrous havoc among shipping, caused by a tremendous gale on the American coast, which advices produced a sort of panic, it was, as the defendants alleged, impossible to insure, except at most exorbitant rates. The defendants accordingly wrote the same day to the plaintiffs (being the day on which the American mail left London), stating:

In consequence of the recent numerous and heavy losses on cotton in the Gulf, there is almost a panic amongst many of the underwriters on this side, and therefore we could not reinsure as you wish, except at extraordinary (and what we consider excessive) rates, if then, especially as some of the vessels sailed about the time of the hurricane in October, and are about due. We therefore think it better to enclose you herein a list of the vessels not arrived by which we have taken lines, and leave you, if you deem it necessary, to effect reinsurance on your side. If we remember rightly yon stated, when here, that these risks were freely taken in New York at 1 per cent., which will enable you to reinsure at a considerable profit, whereas we should have to do so at a loss.

This letter was received by the plaintiffs on the 21st Dec. In the meantime, on the 19th Dec., the Roger A. Heirn stranded at Mobile, whereby the risk taken by the defendants on behalf of the plaintiffs was converted into a loss of 3500l.

The plaintiffs contended that the order to reinsure, contained in their letter of the 24th Nov., was peremptory, and ought to have been effected at any rate of insurance which would have been obtained for the time being, and they denied that there was any such panic as described in the defendants' letter, and they now sought to make the defendants liable for the loss they had sustained in consequence of the defendants having omitted to reinsure the Roger A. Heirn, in pursuance of their instructions.

Another question raised in the suit was, whether the defendants were entitled to retain for their own benefit, in addition to the regular 5 per cent. brokerage on premiums, a discount or allowance of 12 per cent., allowed by the underwriters to brokers upon the sum paid to the underwriters as the balance owing to them upon the settlement of accounts at the commencement of each year.

It appeared that it was the custom for underwriters, when the insurance business was conducted on the "credit" system, which was the system adopted by the defendants, to make this allowance to the brokers as an inducement to them to bring a profitable class of business. The plaintiffs contended that the defendants were their agents for the purpose of reinsuring, and that, as such, they could not accept a gratuity, but must account to the plaintiffs for the amount of discount they had received.

For the defence, it was submitted that the matters in dispute were properly subjects for proceedings at law. That the defendants were justified, in the exercise of their discretion, in refraining from effecting any reinsurance at the ruinous rates at which alone, if at all, such reinsurances could have been effected, especially as the plaintiffs had previously informed them that they could reinsure these risks very chiefly on their own side, but that if they were liable for the loss upon the Roger A. Heirn, they ought to be allowed to setoff against such loss the amount of the premiums

V.C. B.]

which, by not reinsuring as directed, they had saved to the plaintiffs.

As to the discount, they denied that they were the plaintiffs' agents for the purpose of reinsuring, and alleged that they simply executed the plaintiffs' orders for reinsurance upon the same terms as they did those of other persons who employed them as brokers, and that, therefore, they were entitled to the customary brokers' allowances for their own benefit.

Kay, Q.C., Benjamin, Q.C. (of the Common Law Bar), and Marten, Q.C. for the plaintiffs.-As to the jurisdiction of the court, we refer to

Makepeace v. Rogers, 12 L. T. Rep. N. S. 12; on app. 221; 4 De G. J. & S. 649;

Southampton Dock Company v, Southampton Pier and Harbour Board, 23 L. T. Rep. N. S. 698; L. Rep. 11 Eq. 254; 26 L. T. Rep. N. S. 828; L. Rep. 14 Eq. 595.

The defendants were our agents for the purpose of effecting insurances. They were in a fiduciary position, and could not accept a gratuity. They must, therefore, account to us for the discount which they have received:

Turnbull v. Garden, 20 L. T. Rep. N. S. 218; 28 L.J.,
N. S. 331, Ch.;

Queen of Spain v. Parr, 21 L. T. Rep. N. S. 555; 39
L. J., N. S., 73, Ch. ;

Ritchie v. Couper, 28 Beav. 344.

As to the defendants' liability for not reinsuring, they were our agents for hire and reward; there was an express contract, and the duty cast upon them by the contract was an absolute duty to effect an insurance, and not merely a mandatum: (Turpin v. Bilton, 5 Man. & Gr. 455, 470.) Even an insurance broker is liable, à fortiori an agent would be. This is a case of breach of trust, and, therefore, the trustee cannot set-off against the loss the amount that has been saved by his disobedience and breach of trust.

John Pearson, Q.C. and Millar, for the defendants.-There is nothing to justify the allegation in the bill that the accounts are complicated or in dispute; the only questions in dispute are questions which could be more properly tried by a jury in an action at law: (Moxon v. Bright 20 L. T. Rep. N. S. 961; L. Rep. 4 Ch. 292.) As regards re-insuring, we acted as brokers, and not as agents; there is nothing in the agreement about re-insurance. We were agents for adjusting and paying losses in London, and for taking risks only, and you cannot import anything into the agreement which is not there already. The transactions between the broker and underwriter are distinct and separate from the transactions between the broker and the assured. This is not a question of principal and agent, or of trustee and cestui que trust, but two transactions separate and distinct. The practice as to these transactions is very clearly stated by Blackburn, J., in Xenos v. Wickham (14 C. B., N. S., 460.) The discount allowed is a discount upon the balance of accounts between the underwriter and the broker in respect of all his clients, and not a discount upon any particular premium. With respect to the alleged negligence, an agent must use the same discretion and diligence for his principals as he would for himself. If he finds himself unable to insure as desired, he must communicate at once with his principals (Callendar v. Oelrichs, 5 Bing. New Cas. 58), which is the very thing we did, and having written, we could not afterwards reinsure in London; if we did, and the ships came in safe,

[V.C. B.

the plaintiffs would have been justified in refusing to pay the premiums. The agreement states that we are to exercise our discretion, and there was nothing in the plaintiffs' letter directing us to reinsure which took that discretion away and rendered it imperative upon us to insure at any price. If, however, the court is of opinion that we are liable for the loss occasioned by our not insuring as directed, then in estimating the damages, the amount saved by the same act of negligence must be taken into consideration.

The VICE-CHANCELLOR said :-The bill in this suit is filed by the Great Western Insurance Company against Messrs. Cunliffe, praying that an account may be taken between them, and praying relief upon certain matters specifically mentioned in the bill. The defendants admit the existence of a kind of agency, but say that the particular agency alleged by the bill in respect of which one portion of the relief is sought, and the matters which might have been the subject of account between them and the plaintiffs might and ought to have been the subject of an action at law, and that a court of equity is not the proper forum for deciding such disputes. It becomes, therefore, absolutely necessary to consider the nature of such agency as was constituted.

Now the plaintiffs are an insurance company carrying on business in marine insurance at New York. A portion of that business was and is transacted in this country, and for the purpose of that business it was and is indispensably necessary that the plaintiffs should have agents in this country, persons to carry out their business, which consisted of making such payments as the plaintiffs might have to make upon policies of insurance granted by them payable in England, and for issuing policies in England, and for effecting reinsurances on risks which they had undertaken. And that that is the object with which the agency was constituted seems clear, not only from the nature of the case, but from the evidence which has been adduced, and the admissions and statements on both sides. The agency undertaken by the defendants is expressed in certain letters which were referred to in the course of the proceedings. [The Vice-Chancellor having read the portions of the four first letters set out ante, continued:] Now, upon the basis of those letters the agency is constituted, and it seems to me impossible not to say, after reading those letters, and having regard to the subsequent transactions between the parties, that an agency, in the full sense of the term-an agency for conducting in this country that business in which the plaintiffs were engaged, but which they could not conduct was constituted and was undertaken by the defendants.

It seems to me impossible, in the face of the evidence, as well as from the transactions between the parties as they are stated and admitted, to doubt that the defendants did undertake from the beginning the business of reinsurance, as well as whatever other business might be committed to them by their correspondents in New York, and that it is a mistake to call them brokers. It has been convenient for the defendants in their argument to refer to cases and to conduct the argument as if the defendants were insurance brokers. They are not, that I know of, properly called by that name in any instance. They are not brokers; they are described in the