
    Isaac Woodward versus Charles Cowing.
    One paid money to an officer of a privateer for a share of the prizes she might make during a cruise on which she was then bound; soon after, the news of peace arrived, and prevented the proposed cruise. It was holden, that the money so paid could not be recovered back, as paid on a consideration which had failed.
    
      Assumpsit for money had and received by the defendant, to the use of the plaintiff. The facts agreed by the parties were as follows. The defendant, .having shipped as a prizemaster on board an American privateer, duly commissioned to capture British property on the high seas, and, as such prizemaster, being entitled to several shares of the property that might be captured, on the 9th of February, 1815, in consideration of $25, sold to the plaintiff one quarter of a share of all captures that might be made by the privateer during the cruise on which she was then bound. On the 12th day of the same February, news of the peace concluded between the United States and Great Britain arrived at Brunswick, where these parties resided. Hereupon the intended cruise was abandoned, and the officers and crew of the privateer were discharged, although, by the terms of the treaty, captures that should have been made within seven days from the receipt of the news at .Portland. where the privateer lay, would have been lawful prize. This action was brought to recover back the money paid by the plaintiff for the said quarter of a share.
    Judgment was to be entered by nonsuit or default,, as the opinion of the Court should be on the facts stated.
    
      *Alden, for the plaintiff,
    argued, that the money was paid for a consideration which had wholly failed, and he cited and relied upon the case of Moses vs. Macferlan. 
      
    
    
      Orr, for the defendant.
    In that case, the plaintiff had a strong case in equity. The present case arises out of a bargain, or speculation, between two adventurers, and contains nothing of fraud or imposition. It is like the case of a premium paid upon a wager policy, which cannot be recovered, after the safe arrival of the ship;  so a premium paid for re-assurance, void by statute, cannot be recovered back.  The cases, where money is to be repaid, are such where one of the parties had more knowledge of future probabilities than the other. In the case at bar, the defendant had purchased tickets in a legalized lottery, a part of which he sold to the plaintiff; and then the managers refused to draw the lottery ; an event which one speculator might as well have foreseen as another.
    
      
       2 Burr. ]010.
    
    
      
      
        Lowry & al. vs. Bourdieu, Doug. 467.
    
    
      
      
        Andree & al. vs. Fletcher, 3 D. & E. 266.
    
   Curia.

Where money has been paid upon a consideration which has failed, it may certainly be recovered back by the party who shall have paid it. But such, in our opinion, was not the case before us. There were many risks, equally known to the parties, and which must be presumed to have been considered by them, when making their contract. The return of peace must have been one. The plaintiff purchased a chance to obtain money by captures from an existing enemy. The government of their country annihilated that chance, by making such captures unlawful. We have no hesitation in saying, that the defendant has a right to retain the money paid him.

Plaintiff nonsuit.  