delivered the opinion of the court; Thé question to be decided in this case by the court is, Whether an action for money had and received Oan be maintained by the appellant against the appellees, for rrioney had and received by their agent for freight received, for goods shipped in The .fltclhma, from the complainants?
In determining this question, the court are necessarily drawn into a consideration of the right the appellant has to the freight, and the extent of that right ort the facts stated. What effect has the abandonment of the ship for a total loss produced? According to the opinion of the court, the abandonment of the ship for a total loss on account of the capture, did, by operation of law, transfefi'all the right and interest of the appellant in the ship to the appellees, on their acceptance of the abandonment, and all the' benefits and advantages, directly or incidentally accruing from, the ship subsequent to the capture.
The abandonment for a total loss has a retrospective relation to the cause of the abandonment, and in this case, to the captures of the ship. At that time all the right and interest of the appellant, the insured, in the ship ceased., and the right and interest of the insurers commenced. The assured, by his abandonment, had made his election to take that which was substituted by mutual consent as art equivalent for the ship, arid - the insurers, by their acceptance, gave their assent to it. What were the respective rights of the assured árid insurers at this time as to the freight of the ship? If the freight is susceptible of apportionment, ami in out judgment it is, and may be apportioned in such manner as will do justice to both parties, by giving to each the usufruct of the ship during the time ol their respective ownership — “the proportion of each in this case, to be ascertained according to existing circumstances, The principle of apportionment in this case, and those similarly circumstanced, is founded in equity. The *370contingency which produced the abandonment'cannot be attributed to either party, and the' result ought not to be 1 J , ° . more unfavourable to one than the other. But if this . ... principle is rejected on the ground that there is no criterion by.which the apportionment can be made, then the insurers would not be btirthened with the loss against which they insured; but by receiving the whole of the freight-might be compensated for it, or at any rate their loss would be Véry rñu'ch difnrui&fied át the expense of the assured.
The court áre of opinion, that the appellant is entitled to all the emoluments or earnings of the ship anterior to the capture, to be adjusted by a jury on such evidence as Is legally admissible before them.
The position is not (o’ be controverted, that generally a corporate body cann'ot act but by its seal; but this position! cannot be extended so far as to prevent their liability from! the nature of their institution, or for acts done, necessarily or incidentally arising from art authority delegated by sftcli body to their agent legally appointed. If it wag otherwise, and the agent did acts, or received money, within the scope of the delegated authority, and became insolvent, the party transacting business with thém would be without refnedy in law or equity.
In this case it is stated, that Jlntliimy Mangin acted as the agent of the appellees in attending to the prosecution of the' appeals in England, and in receiving money awarded to them in Virtue of orde'rs or decrees of the high court . of appeals; arid it is also stated, that Mangin received' £1230 sterling money for freight in this case'.
The action for money had and received is an equitable action, and the plaintiff, in support of it, can resort to and prove all equitable circumstances ificident to his case. Arid the court are of opinion, that an assumption in law was created by the appellees in receiving the money through the agency of Mangin: and that the appellant is entitled to all the earnings and emoluments of the ship which had accrued prior to the capture.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED..