case martin against sitwell a action to recover back the premium as a void  policy may be bring by the person in who name the policy be open although the  premium be pay to the underwriter by the agent who open the policy SC holt  Indebitatus assumpsit for five pound receive by the defendant to the plaintiff  use non assumpsit plead upon evidence it appear that one Barksdale have make a  policy of assurance upon account for five pound premium in the plaintiff name  and that he have pay the say premium to the defendant and that Barksdale have  no good then on board and so the policy be void and the money to be return by  the custom of merchant at the trial I urge these two point first that the  action ought to have be bring in Barksdales name for the money be his we  receive it from he and if the policy have be good it will have be to his  advantage and upon no account can it be say to be receive to Martin use it  never be his money beside here may be a great fraud upon all insurer in this  that a insurance may be in another man name and if a loss happen then the  insurer shall pay for that some beneficiary and trust have good on board if  the ship arrive then the nominal trustee shall bring a general indebitatus for  the premium as have no good on board shower KB to all which holt chief justice  answer that the policy be in Martin name the premium be pay in his name and as  his money and he must bring the a by and whether c if any person accept a bill  of exchange for or in satisfaction of any former debt or sum of money former  due to he this shall be account and esteem a full and complete payment of such  debt if such person accept of any such bill for his debt do not take his due  course to obtain payment of it by endeavour to get the same accept and pay and  make his protest accord to the direction of the Act either for nonacceptance  or nonpayment shower KB er p action upon a loss and so upon avoidance of the  policy for to recover back the premium and as to the inconvenience it will be  the same whosoever be to bring the action and therefore the insurer ought with  caution to look to that beforehand then second I urge that it ought to have be  a special action of the case upon the custom of merchant for this money be  once well pay and then by the custom it be to be return upon matter happen ex  post facto I argue if the first payment be make void then the law will  construe it to be to the plaintiff use and so a indebitatus assumpsit will lie  but when a special custom appoint a return of the premium a indebitatus lie  not as for money receive to the plaintiff use but a special action of the case  upon that particular custom to which holt chief justice answer I with the case  adjudge by Wadham Wyndham of money deposit upon a wager concern a race that  the party win the race may bring a indebitatus for money receive to his use  for now by this subsequent matter it be become as such and as to our case the  money be not only to be return by the custom but the policy be make original  void the party for who use it be make have no good on board so that by this  discovery the money be receive without any reason occasion or consideration  and consequent it be original receive to the plaintiff use and so judgement be  for the plaintiff against my client shower KB trinity term the three of  William and mary in the king bench sir John holt Knt chief justice sir William  dolben Knt sir William Gregory Knt sir Giles eyres Knt justice sir George  Treby Knt attorney general sir John summer Knt solicitor general