Page:Federal Reporter, 1st Series, Volume 3.djvu/176

 m RB LIVERPOOL & GREAT WESTERN BTEAM CO. 169 �out the privity or knowledge of such owner or owners, shall in 110 case exceed the amount or value of the interest of such owner in such vessel and her freight then pending." And by Election 4284 it is provided that "whenever any such embez- zlement, loss or destruction is suffered by several freighters or owners of goods, wares or merchandise, or any property whatever, on the same voyage, and the whole value of the ves- sel and her freight is not sufficient to make compensation for each of them, " it shall be apportioned among them, etc. �I think it is entirely clear from the ternis of the statute, which have been held to express also the rule of the general maritime law, that a claim for unearned freight paid in ad- vance is not within the class oî claims protected by the stat- ute. A claim for prepaid freight is not a claim based upon the loss or destruction of the goods. Suchloss or destruction need neither be alleged nor proved in a suit for the recovery of prepaid freight. The right to it, whenever that right exists, rests upori the implied promise which the common law raises against any person who has received money as the consider- ation of an executory contract on his part which he fails to perform. It is an action for money paid upon a considera- tion which wholly fails, and which the law implies a promisa to repay, because, et equo et bono, the party receiving it has no right to retain it as against the party who has paid it. Thô nature of the intervening obstruction which has prevented the performance of the executory contract is wholly immaterial. This liability, if it exists, is on an independent contract. It is not properly described in the language of the statute as a "liability for a loss or destruction of property, or for an act^ matter or thing, loss, damage or forfeiture done, occasioned or incurred without the privity or knowledge of the owner ;"^ nor is it a liability for "loss or destruction suffered by freight- ers or owners of goods on the voyage." Looking also to th& purpose of the exemption from liability, it is clear that such a claim does not corne within the spirit or reason of the stat7-. ute or the rule of maritime law. The purpose was to miiigat& that rule of law which made the principal liable for the negli- ����