
    Jireh Wait versus Alfred Gibbs et al.
    
    Where a seaman, having performed a fishing voyage, demanded his share of the fish, but without offering any security for his proportion of the expenses, but the owners of the vessel refused, and afterwards sold the fish, it was held, that the seaman might recover the balance due to him in an action for money had and received, without making a new demand.
    Assumpsit for money had and received, for the purpose of recovering the plaintiff’s proportion of the proceeds of three fishing trips performed by him in the defendants’ vessel called the Clarion. Plea, the general issue.
    At the trial, before Morton J., the plaintiff called as a witness one Manchester ; who testified that he kept the books of the vessel during the three trips and settled the accounts with Baker and Studley, two of the defendants ; that the plaintiff’s proportion was 102 dollars and 30 cents, out of which were to be deducted the great and little generals and the freight of the fish to New York, amounting in the whole to 40 dollars and 50 cents ; that before the fish were carried to New York, the plaintiff demanded his proportion of Baker (the captain) and Studley, but they alleged that the freight of the fish belonged to the vessel, and refused to deliver them.
    The defendants contended that the plaintiff was not entitled to recover, because he did not offer any security for his part of the expenses when he demanded the fish, and because he had made no demand since the sale of the fish. But these objections were overruled, and the jury found a verdict for the plaintiff. The defendants moved for a new trial.
    
      
      Oct. 22d.
    
      Oct. 25th.
    
    
      W. Baylies and Coffin,
    
    for the defendants, cited Act of 13 Cong. 1 Sess. c. 2, passed June 19, 1813.
    
      L. Williams and Bassett, for the plaintiff,
    said that the plaintiff’s demand for his proportion of the fish was refused, not because he did not offer security for his part of the expenses, but because the plaintiff claimed a right to the freight of the fish to New York. The fish were thus tortiously taken and carried away and converted into money, and a demand would not be necessary even to support trover.
   Per Curiam

A specific demand, and an offer to pay the great and little generals or to have them deducted, might be necessary, if this were an action for a proportion of the fish ; but the fish had been turned into money, and a balance was due to the plaintiff, and an action for money had and received lies to recover it without an actual demand. But here was a demand for a proportion of the fish, which would be sufficient in this action, if a demand were necessary.

Judgment according to verdict. 
      
      
         S.C. 4 Pick. 298.
     