Fitch v. Workman

50 Mass. 517

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1845
• Status: Published

Opinion

Dewey, J.

The question raised in this case is, whether an action of indebitatus assumpsit for money had and received may be maintained upon the facts here stated. The only liability of the defendant arises from the receipt of money, the avails of certain property assigned to him, under the provisions of St. 1836, c. 238. It is insisted by the defendant, that the only remedy for the plaintiff is by a bill in equity, or petition, under the provisions of § 7 of that statute. The course of argument is, that where new rights or liabilities are created by statute, and a remedy is therein prescribed, the mode thus prescribed is the proper and the only remedy to enforce claims arising undtr the statute. Without questioning the general principle thus stated, the case before us presents a state of facts which will authorize a recovery by the plaintiff. Under a different state of facts, a proceeding under § 7, or by a bill in equity, might be the appropriate remedy for enforcing a settlement of the account of the assignee and a distribution of the assets among the creditors. Such form of proceeding would be requisite to compel the assignee to collect the assets, and render the same available, or to settle the conflicting claims of creditors, and adjust the respective amounts to be paid to each. But this case presents the unusual result of a solvent estate in the hands of an assignee, thereby enabling him to pay to the creditors their entire demands, and an actual payment of all other creditors but the plaintiff, and a surplus paid to the debtor. Upon this state of facts, the parties in interest are reduced to the plaintiff and defendant. The assignee has properly closed the concerns of the debtor, and made the assets available in cash ; and no other duty remains but that of paying over to the plaintiff the amount of his demand. Under these circumstances, we think the defendant held this money for the use of the plaintiff; and that as payment of the same has been refused, after a demand therefor, this action may be maintained.

New trial granted.