
    Samuel Hemmenway versus Gamaliel Bradford.
    Where, in a policy of insurance, the underwriter acknowledges the premium paid, and the assured has afterwards a right to a return of the premium, he may recover the same in an action for money had and received; although, in truth, he gave his promissory note therefor, and the same is still unpaid.
    This was an action of assumpsit upon the policy sued in the action of this plaintiff against John Eaton, reported, ante, vol. xiii. p. 108. The declaration in this case contained also a count for money had and received.
    It appeared, from the report of the assessors appointed in that action, that the property of the plaintiff insured by the policy, on which this action was founded, was fully covered by subscriptions prior to that of the defendant. The policy was in common form, confessing the premium paid.
    
      A negotiable note was given by the plaintiff for the premium, which has never been negotiated, and remains unpaid; except such part of the sum due on it as has been made a set-off against losses recovered of the other underwriters upon the policy.
    When the said premium note became due, it was lodged by the insurance broker in a bank for collection; but was afterwards withdrawn, upon the application of the plaintiff, at whose request the broker also * agreed to hold it, until all the suits pending on the policy should be terminated.
    The plaintiff has assigned all his interest in the sum he was entitled to recover on the policy to one Marston.
    
    If the plaintiff was entitled to judgment for a return of the premium upon these facts, the defendant was to be defaulted ; otherwise the plaintiff was to become nonsuit.
    
      Gallison for the plaintiff.
    
      Welsh for the defendant.
   Per Curiam.

It has been repeatedly decided in this Court,' that, when the assured is entitled to a return of premium, he may recover the amount in an action for money had and received, although his note given for the premium should not have been paid. The underwriter, by the terms of the policy, expressly acknowledges the receipt of the premium; and whether it was paid to him in cash, or in merchandise, or by a negotiable note, or in any other manner, the action to recover it back will still be in the same form,

If the parties choose to agree that payment of the premium note shall not be enforced until all questions arising on the policy shall be settled, and that it shall then be set off, or deducted out of any sum due to the assured, it is very easy to introduce a stipulation to that effect in the policy. But we cannot recognize any such agreement or understanding between the parties, when it is inconsistent with the terms of their written contracts.

We see nothing in the particular circumstances of this case to take it out of the general rule. When the broker took the note out of the bank, the parties might have agreed that the plaintiff should not demand a return of premium in this action, and that, if he should appear to be entitled to such a return, it should be paid by cancelling the note. But no such agreement is stated in the case ; and we are not authorized to infer that any such was made.

Defendant defaulted, 
      
       [In Russell vs. Degrand, (15 Mass. Rep. 37,) the Court say that “ the acknowledgment in the policy operates as quasi an estoppel.” But it seems to be quite clear that a paroi receipt, like that contained in our policies, which are not sealed, cannot operate in any way as an estoppel; and that the action for money had and received cannot be maintained where neither money nor its equivalent has, in fact, been received. — 2 Stark. Ev. 2d Lond. ed. 62, 571, 702, J83, note (o). — Stratton vs. Rastall, 2 D. E. 366. — Lampson vs. Cork, 5 B. A. 606.-— Phill. 8th Lond. ed. 388. — As the promissory note, in this case, had not been negotiated, on producing and delivering the same up to be cancelled, it would seem that the defendant would, according to the agreement, have been entitled to demand a nonsuit. The receipt of the assurer in the policy could not be conclusive unless, by reason of the insurance being effected through the medium of a broker, the insurer should have been accreciited with the principal assured to that amount. — 2 Stark. Ev. 2d Lond. ed. p. 647. note (e). —Ed ]
     