Walker v. Bradley

20 Mass. 261

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1825
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. On the facts agreed the plaintiff is entitled to recover, on the principles laid down in the case of Walker v. Hill, 17 Mass. R. 380, unless his right of action is barred by the statute of limitations.¹ This depends on the question when his right of action first accrued. The defendant’s counsel contends that it accrued immediately on payment of the money. But it is very clear, we think, tnat no action could have been maintained, without proof that the estate was insolvent; and no proof, short of a decree of the judge of probate to this effect, would have been sufficient.

Did it then accrue on the representation of insolvency ? We think not, for such representation is no proof that the estate was in fact insolvent; and if it were, the extent of insolvency could not have been ascertained but by a decree of insolvency and order of distribution. Before such decree and order the plaintiff had no legal means of ascertaining the amount of his claim, and could not sustain an action. It follows therefore that no right of action accrued before the final decree of insolvency. This decree was passed on the 3d day of March, 1820.

There is no analogy between the case under consideration and the common case of money paid by mistake. In the lattei case an action lies immediately to recover back the money. The legal remedy is perfect, notwithstanding the ignorance of the party. But in the present case, if the plaintiff had discovered the insolvency of the estate immediately after payment of the money, he nevertheless had no legal remedy until the decree of insolvency. On the passing of that decree, therefore, his right of action first accrued.

Richardson, after the opinion was delivered, said that, in equity, interest ought to be allowed from the time when the money was paid.

Wilde J. We can allow interest only from the 1st of May, 1822.¹

Judgment for the plaintiff.

1 1 Story on Equity, 109, note 4, 110, note 1.

1 See Wood v. Robbins, 11 Mass. R. 504; Winthrop v. Carleton, 12 Mass. R. 4; Dodge v. Perkins, 9 Pick. 368. In England interest is not in general recoverable in an action for money had and received. De Bernales v. Fuller, 2 Campb. 426; De Havilland v. Bowerbank, 1 Campb. 50; Crockford v. Winter, 1 Campb. 129; Calton v. Bragg, 15 East, 224; Higgins v. Sargent 2 Barn. & Cressw. 351. Indeed the English courts hav 3 so often decided that interest is not recoverable in an action for money had and received, that the judge at nisi prius will not allow the question to be agitated. Depcke v. Munn, 2 Carr & Payne, 112; Hicks v. Mareco, 5 Carr. & Payne, 498.