
    William Penniman versus Alanson Tucker.
    In an action upon a policy of insurance, besides the special count for the loss, the declaration contained the usual money counts. A verdict being found for the defendant on the ground of the want of seaworthiness of the vessel, the plaintiff moved tor a new trial, alleging that he was entitled to recover back the premium; but as no notice had been taken of the point to the jury, the motion was overruled; the Court observing that the proceedings in the present action would furnish the assured a defence against the note given for the premium; and that, if judgment should be recovered upon the note and satisfied, he might recover back the money paid in an action for money had and received.
    This was an action of the case by the assured in a policy of insurance against the defendant as underwriter. The declaration, besides a count for the loss, had also a count for money had and received, and another for money laid out and expended. At the trial the defence was the want of seaworthiness of the ship; and the jury returned a general verdict for the defendant.
    After the verdict, Prescott and Hubbard, of counsel for the plaintiff, moved the Court to set it aside and grant a new trial, “ because the plaintiff, in his declaration, has set forth in two counts two causes of action against said Tucker, in the first of which he demanded a total loss on a policy underwritten by the said Tucker, in which the said Tucker admits that he has received the premium for such insurance and in the second count the plaintiff demanded a return of .said premium ; and the jury have found a general verdict for the said Tucker, on the ground that the vessel insured by said policy was not seaworthy; when they ought to have found a [ * 67 ] verdict for said Penniman on the said second * count, for a return premium ; the said general verdict being against the evidence given at the trial of the cause; ” and they cited the cases of Rothwell vs. Cooke, 
       and Penson vs. Lee, 
       in support of the motion.
    
      
       1 Bos. & Pul. 172.
    
    
      
       2 Bos. & Pul. 330.
    
   Per Curiam.

Had the second count been considered at the trial, the plaintiff might have had a verdict for a return of the premium. But where no notice is taken of that point to the jury, the Court will not send the cause to a new trial for that object only. The verdict respects only the demand for a loss. The plaintiff is not without his remedy. Should the note given for the premium be put in suit, the proceedings in this action would furnish a defence against it; or even if judgment be recovered upon the note, and the same be satisfied, the plaintiff might recover the money back in an action for money had and received. The plaintiff can take nothing by his motion,

Judgment on the verdict. 
      
       Vide Whitcomb vs. Williams, 4 Pick. 228. — Cornwall vs. Gould, 4 Pick. 444. — Webster vs. Lee, 5 Mass. Rep. 334. — Hodges vs. Hodges, 9 Mass. Rep. 370. — Smith vs. Whiting, post, 445.
     
      
       1 East, 97, in notis, cited also in Penson vs. Lee. —Marsh. 558
     