ment would have been used in Short v. McCarthy; but it never occurred to the counsel there, to turn round and say, that on the consideration failing, the broker could be deemed to have received the money, which, in fact, went to his employer. Is this, then, money had and received by Howard to the use of the Plaintiff? If an action had been brought against Alston, on the ground of the consideration failing, he would have been bound to pay, and that alone might be an answer to the question, whether Howard had received this money to the use of the Plaintiff. So to construe it, would be to extend the doctrine of money had and received, infinitely beyond all bounds, within which it has hitherto been confined. It may be admitted, that, if this were a mere colorable transaction, and Alston had never received the money, it might be placed on the footing of money had and received; but what are the facts? the money was to be paid over to Alston; it was actually paid over, and Alston continued to pay the annuity till he became bankrupt. Can it be said that Howard, because he was guilty of negligence, became the party who granted the annuity, who received the consideration for it, and paid the annuity? If he received the money at all, he received it to the use of Alston; and here, the Plaintiff has not only been paid on account of the annuity by Alston, but has proved the debt under his commission. There is no pretence for saying that any ground exists for the Plaintiff's recovering on the count for money had and received; and as little is there for saying he ought to recover upon the account stated. A party can only recover upon a count on an account stated, where a debt actually exists. Here, there was no debt from Howard, who only negotiated between the Plaintiff and Alston. I am, therefore, bound to adhere to the opinion which I formed at the trial. 1820. WHITEHEAD v. HOWARD. PARK 1820. WHITEHEAD V. HOWARD. PARK J. I am of the same opinion, though some difficulty was raised at first, by the apparent hardship of the case. We must take care, however, that such appearances do not lead us to decide contrary to what is law. There being no special count as to any revival of an old debt, we must assume that this was an absolute promise, and then the case is not distinguishable from that of Short v. M'Carthy. I am not aware of any case where the doctrine of a revival, after the operation of the statute of limitations, has applied to any thing but an actual debt. Here, there was no debt contracted by the Defendant, but he was guilty of gross negligence. The great point was, to show that this was money had and received by the Defendant to the use of the Plaintiff, and it was dexterously argued, that it was doubtful, from the evidence, whether Alston ever had the money at all, and that, therefore, the introduction of his name by the Defendant, might have been merely colorable; but, as no fraud was found by the jury, it would be too much to assume this, after the lapse of so long a period. As to the count on an account stated, a debt must have existed, to render that count available. I think, therefore, that a nonsuit must be entered. BURROUGH J. The only action proper in this case, would have been an action for negligence, but the time for that has long gone by, and contracts of this sort are not capable of being revived by any subsequent promise. An action for money had and received will not lie against a person who immediately pays the money over under the directions of the Plaintiff; and it is clear, from the circumstance of the annuity having been paid six years, that this money was paid by the Plaintiff, in order to its being immediately paid over to the grantor of the annuity; then, in order to recover on a count for an account stated, there must be an existing debt. I am am further of opinion, in this case, that there was no absolute promise to pay, on the part of the Defendant, but a promise to pay, contingently, on the event of Alston's effects turning out insufficient; and what was said by the Defendant subsequently, must have had reference to this contingent promise. Rule absolute (a). (a) Richardson J. was absent. 1820. WHITEHEAD บ. HOWARD. (IN THE EXCHEQUER CHAMBER.) ANDREW DAVIDSON, WILLIAM JONES, and WIL- Nov. 27. Ship and freight were insured by separate sets of underwriters. The ship (a general seek ASSUMPSIT by the Defendant in error for money had and received, and the other usual money counts, to which the Plaintiffs in error pleaded the general issue. At the trial before Lord Ellenborough C. J. at Guildhall, at the sittings in Trinity term 1815, the jury found a verdict for the Defendant in error for 717. 12s. 10d. da- ing ship) was mages, subject to the opinion of the Court of K. B. captured; and upon the following case: ship and freight were the respective underwriters, who each paid Messrs. Brotherston and Begg were the owners of abandoned to the vessel called The Fanny; she was a general seeking ship, and sailed on a voyage from Rio de Janeiro to Liverpool with a cargo of goods on freight, the property of a total loss. The ship, being re-cap tured, performed her voyage and earned freight: Held, that the underwriter on ship was entitled to the freight. Abandonment of ship to the underwriter on ship includes freight, and transfers freight earned subsequently to the abandonment to such underwriter, as incident to the ship. differ 1280. DAVIDSON บ. CASE. different persons. Plaintiff plaintiff (Defendant in error) is an underwriter on ship to the amount of 2007., and claims to recover, as such underwriter on ship, a proportion of the money so received by Defendants for freight. The question for the opinion of the Court is, whether the Plaintiff (Defendant in error) is entitled to recover. If he be entitled, the verdict to stand; if not, a nonsuit to be entered. The case was argued in Easter term, 56 Geo. 3., when the Court of K. B. gave judgment for the Defendant in error (a); but, by consent, it was ordered that the special case should be turned into a special verdict, for the purpose of obtaining the opinion of the Court of Exchequer Chamber upon a writ of error. This was accordingly done; and the special verdict was in substance the same with the special case. The case came on to be argued in Trinity term last, when, For the Plaintiff in error, it was contended by Littledale, that as, in this country at least, freight might legally be the object of an insurance separate from the insurance on the ship, the law of this country would apply to insurance on freight the same incidents, as it applied to any other species of insurance. If, therefore, by abandonment, the insurer on the ship became entitled to the ship, there was no reason why the insurer on freight should not by abandonment become entitled to the freight; nor could there be any difficulty in apportioning to each insurer that to which he was entitled. The insurer on ship ought not, by an abandonment, to gain more than the subject of his insurance, namely, the hull, tackle, and apparel of the ship. It would be unjust, if by the abandonment he were to acquire the freight, which had never been the object of his insurance. The difficulty VOL. II. (a) 5 M. & S. 19. E e had 1820. DAVIDSON V. CASE. |