property of the testator more than sufficient to answer all the
claims, which I must take to be the case. Supposing I had a
full and complete administration, and this account were taken,
there still would be a right to an account against those persons
of how much of these assets they had received; but that would
not be taken, if it was either proved that they had received
more than was sufficient for the purpose of paying all the
debts, or if they admitted before the Court, that they had
sufficient assets to answer all the debts. If that fact were
proved, it would be a mere question of how much they them-
selves would have to pay, in case the balance was found against
them.
But if the balance was the other way, and something.
was found due to the estate of the testator, then I should (as)
I have done on other occasions) direct the amount due to be
paid into Court, to the account of the legal personal represen-
tative of the testator, and they could then get it out of Court on
taking out administration in this country.

In either mode of viewing it, I think there is sufficient, upon the allegations in this bill, to support the relief which is asked for on the present occasion; and, accordingly, I must overrule the demurrer.

MACLEAN

ľ. DAWSON.

WILLIAMS v. PAGE.

(27 Beav. 373-374.)

At the hearing, a cause was ordered to stand over for want of parties, and the plaintiff was ordered to amend his bill by adding the names of such parties or their legal personal representatives. One of them was dead and had no legal personal representative. A motion by the plaintiff for liberty to proceed in the absence of such representative, or for the appointment of a person to represent his estate, was refused with costs.

[The plaintiff should have complied with the previous order by obtaining representation to the deceased person's estate. The suit at a subsequent hearing was dismissed: 28 Beav. 148.-O. A. S.]

THOMAS v. RAWLING.

(27 Beav. 375 376; S. C. 5 Jur. N. S. 667.)

Under the old practice the costs on the allowance of exceptions for insufficiency were usually payable immediately as a matter of course.

1859. June 29.

1859.

July 27.

ROSSITER . THE TRAFALGAR LIFE ASSURANCE
ASSOCIATION.

(27 Beav. 377-385; affirmed, but no report of the appeal has been found.)

Though an agent cannot delegate his authority, yet there are many acts which he must necessarily do through the agency of other persons, and which are valid when so done.

A proposal for a life policy was accepted, on behalf of a London Assurance Company, by their agent in Australia, who acted in the transaction through the medium of a sub-agent, and the premium was paid. It was held binding on the Company, although the agent had no authority to appoint a sub-agent, and although the Company's forms had not been strictly followed in some unimportant points.

THE defendants, the Trafalgar Life Assurance Association, was a London Assurance Company, registered and incorporated under the 7 & 8 Vict. c. 110.

By an instrument under their seal, dated in 1853, the association appointed Marmaduke Constable, of Sydney, its agent in Australia, to grant life assurances in the manner mentioned in the resolutions of the board of directors, which the instrument recited. By these, Constable was authorized "to grant assurances, on behalf of the Company, on first class lives, for any amount, not exceeding, in each case, the sum of 2,000l. The acceptance of each life to be signified by a memorandum in writing, signed by Marmaduke Constable and by Charles Nathan, Esq. (the medical officer of the Company in Australia) and a duplicate of which memorandum, also signed by such medical officer, is to be remitted, together with the medical and referee's reports, to the chief office in London. Every assurance so granted by Marmaduke Constable, not exceeding 2,000l. in amount, shall be binding on the association.

66

Secondly, that the memorandum to be given by Marmaduke Constable, on granting assurances as aforesaid, shall be in the following terms, that is to say:

[ *378 ]

"TRAFALGAR LIFE ASSURANCE ASSOCIATION.

"185-.

"A. B. of having this day effected an assurance for in the Trafalgar Life Assurance *Association, upon life for I, Marmaduke Constable, hereby, on behalf of the association, acknowledge the receipt of £---, being the amount of the first premium payable in respect thereof, and guarantee that a policy, expressive of particulars, shall be prepared and delivered by the said association to the said

Premium.

| £ S. d.

(Agent's signature.)
(Medical officer's signature.)

ROSSITER

ተ.

THE

"N.B.--On receipt of this memorandum, the assured is effectually assured in the above-mentioned life office for the sum mentioned in the memorandum, if the same does not exceed TRAFALGAR 2,000l.

"Thirdly, that the board will, on receipt of such duplicate memorandum and medical and referee's reports, and the par. ticulars of the assurance, prepare and deliver either a policy under the seal of the association, or will forward a written notice that they do not confirm or continue the assurance."

It appeared that Messrs. Erlam and Williams had acted as a sort of sub-agents for Constable in Sydney. On the 9th of August, 1854, Frederick Strange, of Sydney, sent in a proposal for an assurance on his life for 1,000l. This was written on one of the Company's printed forms, and was signed by Messrs. Erlam and Williams as agents. There were next two references to private friends of Mr. Strange, and their replies.

A letter of reference was sent, signed by Constable (in print) and by Erlam and Williams, to Dr. Nathan, the medical officer of the Company, who examined and passed Strange as a first class life, but to be taken at *an extra premium, in consequence of his intended visit to the Percy Islands. Dr. Nathan forwarded his report, signed by him on the letter of reference, to Constable, and Strange afterwards paid the first half-yearly premium to Erlam and Williams, who on the 1st of September, 1854, gave him a receipt in the following words:

"SYDNEY, September 1st, 1854. "Received of Frederick Strange, Esq., the sum of 15l. 9s. 3d. for one half-year's premium on an assurance for 1,000l. for life, made by him this day. The policy to be forwarded from England per first opportunity.

"£15 9s. 3d.

"Pro CONSTABLE & Co.,

66

'ERLAM AND WILLIAMS."

No memorandum in the form mentioned in the power was ever given.

Shortly afterwards, Strange went as a naturalist on an expedition to the Percy Islands, and on the 14th of October, 1854, was murdered there by the native savages.

The Company said they received no papers relating to the assurance until the 27th of August, 1855, long after the death of Strange, and no policy had ever been granted.

The Company having refused to pay the 1,000l., this suit was instituted by Rossiter (to whom Strange had assigned the policy) and by the widow and executrix of Strange, insisting that the receipt and other documents constituted a valid and complete

LIFE ASSURANCE ASSOCIATION.

[ *379 ]

ROSSITER

THE

TRAFALGAR

LIFE ASSURANCE

contract of assurance. The bill prayed, that the Company might be decreed to pay the 1,000l., with interest.

The papers transmitted to the Company in London in other cases of assurances effected in Australia were produced to the ASSOCIATION. Court, and they all consisted, simply, of the proposal, the answers of the two referees and the receipt in a form similar to the

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[ *381 ]

present.

Mr. Selwyn and Mr. Waley for the plaintiffs:

A perfect contract has been entered into by the agent duly authorized of the Company. The receipt of Erlam and Williams is the receipt of Constable, [by whom they were assist him as clerks or servants].

empowered to

Mr. R. Palmer and Mr. W. W. Cooper, for the Company, contended that [the assurance was not in conformity with the power given to Constable. Secondly, that Constable had no authority to accept the risk as the Percy Islands were beyond the limits allowed by the Company's policy. Wing v. Harvey (1) was cited].

THE MASTER OF THE ROLLS:

I think, upon the evidence before me, that the plaintiffs *are entitled to a decree in this case. The question really is, whether there was, when Mr. Strange died, a policy binding this Company. It is admitted that a power of attorney was granted by the Company to Mr. Marmaduke Constable to grant policies upon first class lives for sums not exceeding 2,000l., and where that was communicated to the central office in London, the Company might either confirm or reject it; that the rejection dated from the period when the notice of the rejection was received out in Sydney; but, in the meantime, (provided that the policy was within the terms of the power,) it was valid. Then the question arises, whether, upon the facts before me, there has been a valid contract of assurance entered into by an agent of the Company.

I must, in the first place, determine whether the contract was entered into by the agent of the Company, that is, whether this was a transaction with Marmaduke Constable, their agent.

It is undoubtedly quite true, that an agent cannot delegate his authority to another person; but I apprehend it to be equally clear, that an agent is entitled to perform, and must necessarily perform a great number of his acts and functions through the aid of persons to whom he delegates his authority. Thus, for instance, when a merchant receives goods from abroad for sale, and he deputes his foreman to go to the proper place (1) 104 R. R. 112 (5 D. M. & G. 265).

ROSSITER

THE

LIFE ASSURANCE

for selling such goods, and the foreman sells them accordingly; in that case, it would be impossible for the consignor to say that the sale was void, because the merchant did not personally TRAFALGAR sell them himself, but employed another person for that purpose, by whom the sale was effected. The merchant would, no doubt, ASSOCIATION. be answerable for all the acts of his foreman, but provided *the acts done were proper and within the scope of his authority, they would be the acts of the merchant himself.

Now, what takes place on this occasion. Erlam and Williams signed certain documents of reference to friends of the assured respecting his life. These two documents contain the particulars respecting the health of Strange, and the words Constable & Co. are struck through and "Erlam & Co." signed as agents. There are two other documents, the proposal and the reference to the medical officer. The proposal to the Company is in the ordinary printed form, always used by Constable; there is a certificate at the end signed by Erlam and Williams, as agents, and there is nothing to show that this was not communicated to Constable & Co. But the material document of all is the reference to the medical officer, which is in the regular form, used in all these documents, with the printed certificate with the words "Erlam & Co." added, and that is regularly answered by the medical officer in the ordinary form, and transmitted to the office. The Company omits to state from whom it received this document, but say that they received it in London in August, 1855, for the first time. The officer of the Company must know from whom they received it, and therefore it is to be inferred that they received it regularly from their agents in Sydney, because, in a matter of this description, their silence must be taken most strongly against them. That being so, I looked at other documents of similar description, and I found that nothing else is usually sent to the office but those four documents; first, the proposal; secondly, the two references to the friends who speak to the health of the person proposing to effect an insurance; and lastly, the certificate of the medical officer. These are the only four documents, *and a great many others have been produced to me in exactly the same form); they are merely pinned together.

The power of attorney states, that the memorandum to be given. by Constable shall be in a particular form, having both the agent's and the medical officer's signature. The Company does not state that this form was adopted on every or upon any occasion on which they accepted proposals made through Constable, and no evidence is given that upon any one occasion such a memorandum was transmitted to the office. On the contrary,

[ *382 ]

[ *383 ]