delivered judgment.

The exception filed by the plaintiffs to the award of the arbitrators, is founded upon a supposition that the broker is ■bound at all events to pay the premium to the underwriters, even though it is discovered before the time when it is payable, that it is a case in which no premium is due, because the risk never commenced. It is the custom, say they, for the broker to credit the underwriter for the amount of the premium immediately on signing the policy. The broker guaranties the premium, and collects it from the assured, who in this respect has nothing to do with the underwriter, though if it be a case of return premium, it is to the underwriter only that he must look for restitution. This custom of 'the broker’s guarantying the premium, in consideration of which he receives five per cent, from the underwriters, may be very convenient to both these parties; but the assured has nothing to do with it, and they have no right to throw an inconvenience on him for their own benefit. A credit is given for the payment of the premium. Before the day of payment arrives, the assured finds that the underwriters never ran any risque, and therefore are not entitled to the premium. He warns the broker, who was his agent in procuring the i surance tobe effected, not to pay it. If after this the does pay it, on what principle of law or justice ^ai0hfe demand the money of the assured? If indeed it was a ful case, it would be improper that the broker shou' the expense and hazard of defending a suit. In suclt a cas^ he might call on the assured to indemnify him, and taketi defence upon himself; and if he failed to do it, he mi, the money and recover it of the assured. But in the present case it is not alleged that the plaintiffs were under the least apprehension of suffering by the defendant. The arbitrators supposed that it was the duty of the plaintiffs after the notice they received from the defendant, to withhold the money from the underwriters, and endeavour to obtain justice for the assured; and in this we think they were right. The assured had a right to contest the matter before he paid his money, because in a case circumstanced like the present, the money could never be recovered of him. It is radically unjust that a man should pay money where no money is due, and then be put to his action to recover it back. 2ti

*244In the course of the argument, the plaintiffs’ counsel have 'made another exception, which was not taken within the time fixed by the rule of court. But this will not prevent their taking advantage of it, if it appears clearly on the face of the award. The exception is this. That Mr. Fisher who was called in by the two arbitrators first named, proceeded to consider and determine the matter in conjunction with them, upon a view of the papers and the information which he received from his colleagues, without hearing the parties. This is an objection not to be favoured in this stage of the business. It has been taken up at the bar, from which it is evident that the plaintiffs themselves did not think they were injured by this mode of proceeding. Let us see then how the matter stands on the face of the award. The language of the arbitrators is as follows. “ We Stephen Girard and Joseph Ball having ap- “ pointed James C. Fisher to assist us in determining See. “ and having heard the parties, and James C. Fisher having “joined us in the reference, and all of us having carefully ex- “ amined all the papers and documents submitted to us, do “ award &c.” Now in the first place it does not appear quite clear that Mr. Fisher did not hear the parties, although I should rather incline to think he did not. But if he did not, it may be for any thing that appears, that the parties consented to his taking the matter up on the information he might receive from the papers explained by his colleagues. In such case it would be all right. The arbitrators were not obliged to say any thing in the award about hearing the parties; and as no objection on that score was made by the plaintiffs themselves, we ought rather to presume that if they were not heard, it was because they did not desire to be heard. It does not appear on the face of the award that Mr. Fisher went on to consider the matter in the absence of the parties, and without their consent. There is therefore no error in law in that respect. The opinion of the court is that the report be confirmed.

Report confirmed.