delivered the opinion of the court.

This is a hard case, and we regret that, under the law, the defendant cannot be relieved. It is well settled by authority that the appellee would have been liable to the appellant as insurer if there had been a loss of the property he had assumed the duty of insuring,-if he was guilty of neglect in not procuring valid insurance. But this liability on his part would have sprung, not from contract, but from tort.. And though, in admeasuring the damages, the amount of premium which the appellant would have paid for the insurance, if the same had been insured, would have been deducted from the value of the property lost, this would have been done onty to find the true loss, and not because of the appellee's right to such sum as a premium. The radical and insuperable difficulty in appellee’s defense is that his right to charge against appellant the premiums must rest upou the fact that he secured insurance according to the directions of appellant. We are unable to distinguish this case from that of Storer v. Eaton, 50 Maine, 219, the reasoning in wliich meets our approval. If the appellee could not have recovered the premiums he paid in an action against the appellant, we can perceive no principle upou which he can *932reach that end by charging up the premiums in a current account.

The judgment is reversed.

delivered the following response to the suggestion of error:

It is not true, as stated by the argument in support of the suggestion in this ease, that “the court is impatient at the sight of one,” and there is nothing in the action of the court in dealing with them to justify such a notion. It is true that rarely has a suggestion of error availed any thing, except to show the indisputable correctness of the decision assailed; and the reason is plainly because the court, having had the benefit of argument by learned counsel engaged in the case, and the three judges having considered and discussed the case afterwards in the consultation room, in all its aspects, as presented by counsel and as may occur to either of them, know more of the case than the counsel do, and have the great advantage of perfect impartiality in their investigation, with the sole desire to reach the truth. This case is a fair illustration. It is a very plain case when analyzed, and yet the zeal and ingenuity of learned counsel have completely deceived them, and, by considering what might have been, and what would, in that contingency, be the legal result, have convinced themselves that the like result should follow now.

*933We dealt with the case actually existing and presented by the record, which is simply this : Cowan, with perfect honesty, but carelessly and negligently, supposing he was entitled to do so, withheld from the corporation money he had no legal right to retain, and, when this discovery was made, he was called on to pay, and, refusing, was sued. That he could not recover his unwarranted disbursements if he were plaintiff, is clear, and there is no escape from that test in determining the validity of his defense. And that is the whole case, and we do not concern ourselves with what might be the law in a different state of case.

The decision will stand as made.