Holley v. Young.

depend upon the circumstances under which it has been made. Thus, where a teamster, owning a house and stable, sold them with a small yard surrounding them, it was held not to pass a quantity of manure in the cellar of the stable. Proctor v. Gilson, 49 N. H. 62. And so if manure is made from hay purchased by the tenant and brought upon the premises, it is personal property. Corey v. Bishop, 48 N. H. 146. Generally it passes as an incident to the soil, especially when on the ground where it was dropped. Hill v. De Rochemont, 48 N. H. 88; French v. Freeman, 43 Vt. 93, but in the latter case it was held, that where the owner of the land had gathered the manure upon it into piles for sale, and sold it as personalty, and then sold the land, the sale of the land did not carry the manure in such piles. In Massachusetts, a sale of manure by the owner of the farm passes title to it as personalty, such sale constituting a severance; and a subsequent conveyance of the farm would not carry the manure upon it, or divest the title of the purchaser to the ma. nure. Strong v. Doyle, 110 Mass 94. Citing Ford v. Cobb, 20 N. Y. 344, a case of sale kettles. In England, the away-going tenant for years may, however, claim compensation for the manure made during his occupancy, by the custom of the country. Roberts v. Barker, 1 Cromp. & M. 809.

The rule allowing the landlord to hold the manure made on the farm is founded on the fact that the manure is made from the produce of the farm, and to suffer the tenant to remove it would tend to impoverish the farm; but where the manure is made from produce obtained elsewhere, or where the lands are not agricultural, as in tbe case of livery-stables, no such right of the landlord exists. Carroll v. Newton, 17 How. Pr. 189; citing Lewis v. Jones, 17 Penn. St. 262. That case held that the away-going tenant cannot carry off the manure made on the land he has occupied from the produce thereof, although mixed with manure made from hay and grain bought and fed by him to his horses. But a lessee is entitled to manure made in buildings not devoted to farming purposes. Needham v. Allison, 24 N. H. 355. And wheat straw, raised by the tenant and spread on the land to repair the soil, is not regarded as manure passing to the landlord, but is part of the crop, and belongs to those who own the crop," in the absence of agreement or custom. Fobes v. Shattuck, 22 Barb. 568.

An admission made at the first trial, if reduced to writing, or incorporated into a record of the case, will be binding at another trial of the case, unless the presiding justice, in the exercise of his discretion, thinks proper to relieve the party from it.

ORCIBLE entry and detainer. The case, on a former bill of exceptions, is stated in 65 Me. 520. At the March term, 1877, the verdict was for the defendant; and the plaintiff alleged exceptions to the exclusion of evidence offered, as in the opinion appears.

H. L. Whitcomb, for plaintiff.

S. C. Belcher, for defendant.

WALTON, J. At the first trial of this action, it was admitted

Holley v. Young.

came due.

made in the report of the case At the last trial, the plaintiff

that "the defendant paid his rent, specified in the lease, as it beThis admission was then made up for the law court. offered to prove that the rent was not promptly paid when due The evidence was excluded, upon the ground, it is said, that the admission was obligatory upon the plaintiff for the purposes of the last trial, as well as the first. Assuming such to be the ground of the exclusion (and no other is suggested) we think the exceptions must be overruled. It would be wiser to adopt some rule by which more admissions could be obtained, than to allow parties, at their own will and pleasure, to withdraw the few now made.

Such was the opinion of Lord DENMAN. In his report to the commission appointed to inquire into proceedings in actions at law, he says, and says truly, that much time is shamefully wasted in proving facts that ought to be admitted; that there ought always to be a preliminary hearing to settle the issue; and that each party ought to be required to admit every fact not really controverted; and that the suppression of any known material fact should not only be deemed disreputable, but punished with costs; that such a course would save much precious time. now "shamefully wasted." 5 Lives of the Chief Justices, 201.

In Wetherell v. Bird, 7 Car. & P. 6, where an admission had been made at the first trial, which, at the second trial, counsel sought to have excluded upon the same ground taken here, namely, that it was made with a view to the former trial only, the court held that, inasmuch as there was nothing in the admission limiting it to the first trial, it was clearly admissible at the second.

Such is the rule laid down by Professor Greenleaf. He says the admissions of attorneys of record may be given in evidence, "even upon a new trial." 1 Greenl. Ev., § 186. And further on, he says that, if such admissions are made improvidently or by mistake, the court will, in its discretion, relieve the party. § 206.

With such a discretionary power lodged in the court, we think no evil results will follow if we adopt the rule that an admission made at the first trial, if reduced to writing, or incorporated into a record of the case, will be binding at another trial of the case, unless the presiding judge, in the exercise of his discretion, thinks proper to relieve the party from it. Exceptions overruled.

APPLETON, C. J., BARROWS, VIRGIN, PETERS and LIBBEY, JJ., concurred.

Union Insurance Company v. Grant.

UNION INSURANCE COMPANY V. GRANT.

(68 Me. 229.)

Insurance—payment of premium — broker.

As a general rule, the premium note of an insurance broker, received by the insurers in payment of a policy for his principal, discharges the principal from liability to the insurers on account of the premium.

But if the policy contain a provision that, in case of loss, the amount of the premium note shall be deducted from the insurance, the insured must submit to the deduction, although he has before paid the amount of the premium to the broker.

In case of the death and insolvency of a broker, a court of equity will not compel his administrators to sequester for the benefit of the insurers any sum received by them from the insured on account of premiums, if the company hold the broker's note therefor.

ILL in equity. The opinion states the case.

BILL

F. A. Wilson & C. F. Woodard, for plaintiffs.

J. Williamson, for defendants.

VIRGIN, J. For several years prior to March 9, 1876, one McGilvery effected numerous policies of insurance upon hulls, cargoes and freights in his own name, for whom it might concern, loss payable to himself. Some of the policies were effected upon his own property, but many of them upon that of others. But for whosesoever benefit they were insured, he gave to the plaintiffs his individual promissory note for each respective premium; and, on delivery of the policies to his principal, he sometimes received the premiums in cash, and charged others to the assured on his pri

vate account.

At the above-mentioned date, McGilvery died, leaving unpaid his premium notes to an amount exceeding $9,000, and having due to him on account from his principals a large sum, as premiums on unexpired policies, some of which has since his death been paid to the defendants administrators on his estate.

The plaintiffs claim that, in equity and good conscience, they are entitled from the assured to such of the premiums on unex

Union Insurance Company v. Grant.

pired policies as had not been paid to McGilvery at the time of his decease; that the names of his principals are unknown to them, and the policies give no clue thereto; and that the defendants decline to give them any information in the premises. Wherefore they pray for a discovery of what was due to McGilvery, at the time of his decease, on outstanding policies, together with the names of the parties, classes, etc.; how much has since been paid, and that these sums may not be commingled with the general property of the estate; and for an injunction of sequestration, etc.

The policies issued by the plaintiffs contain the clause generally found in American policies-that in case of loss, such loss shall be paid in sixty days after proof of adjustment therefor, "the amount of the premium note, without discount, if unpaid, and all sums due to the company from the insured, when such loss becomes due, being first deducted," etc.

This clause compels the assured to submit to the deduction of the premium note at all events, if unpaid, by whomsoever it may have been given. Hurlbert v. Pacif. Ins. Co., 2 Sumn. 471, 478. This provision was inserted for the benefit of the insurer, and obviously to meet the hazard of the dishonesty or insolvency of the broker, by entitling the underwriter to deduct the premium, whether the action on the policy be brought in the name of the principal or of the agent. While this protects the insurer, it subjects the assured to the hazard of a double payment of the premium, which he can avoid by proper care and diligence in selecting honest and solvent persons for agents.

But this provision of the policy is applicable only in cases of loss. And there being no analogous clause for the protection of the underwriter, in the absence of loss, against the insolvency of the broker, whose individual notes have been received for premiums on policies issued for the benefit of others, their only reliance is that derived from the principles of the common law.

It is well settled in this country that the acknowledgment clause, whereby, as in these policies, the insurers "confess themselves paid the consideration due unto them, for the insurance, by the insured," is not conclusive evidence of the payment of the premium; but it has simply the same force and effect as the analogous clause in deeds of conveyance, which is prima facie evidence only of payment, and estops the grantor from alleging that the deed was executed without consideration; while, for every other

Union Insurance Company v. Grant.

purpose, it may be explained, varied or contradicted by parol evidence. Goodspeed v. Fuller, 46 Me. 141; Bassett v. Bassett, 55 id. 127; 1 Phill. on Ins. (5th ed.), § 515, and notes.

Moreover, the general rule of law in England would seem to be that the broker is the debtor of the underwriter for premiums, and the underwriter the debtor of the assured as to losses. 1 Arnould on Ins., § 61; 2 Duer on Ins. 297, 298. We do not understand, however, that what practically in very many instances comes to the same result has ripened into an established rule here. Though some of the authorities hold that the practice has become so nearly universal, for the person who effects an insurance to give a promissory note for the premium, or if a note is not given, to hold himself, and to be considered as the debtor to the underwriter for the amount, that, by the common understanding and usage, the remedy of the underwriter is confined to the party liable on the note, or to whom the credit is given. 1 Arnould on Ins. 113, Perkins' note. While it is said that, in such cases, the assured is discharged from liability to the underwriter ouly when the person giving the note is known to the writer to be only an agent at the time the insurance is effected (2 Duer on Ins. 301, note a; 1 Pars. on Mar. Ins. 503, 504, notes), this is founded upon the principle in agency, that when a party is informed that the person with whom he is dealing is merely the agent of another, and prefers to deal with the agent personally on his own credit, he will not be allowed afterward to charge the principal. Patapsco Ins. Co. v. Smith, 6 Harr. & J. 166; Ford v. Williams, 21 How. 287; Chandler v. Coe, 54 N. H. 561. But, without expressing any opinion upon this point, we think the bill must be dismissed for another reason. The bill alleges that, "when policies were forwarded to said McGilvery the plaintiffs charged the premiums to him, and afterward invariably procured from him a note for each premium by itself." We of course understand that the "note" mentioned means McGilvery's negotiable promissory note-commercial paper. And it is well settled in this State and Massachusetts, that a negotiable promissory note taken for an account is prima facie payment thereof. Milliken v. Whitehouse, 49 Me. 527; French v. Price, 24 Pick. 13. The plaintiffs accepted these notes knowing all the facts. That is to say, though they did not know the names of the persons for whose benefit their policies were issued, the very form of the policies implied agency on the part of McGilvery. If the plaintiffs would have had