Foster v. Lowell

Where money belonging to A is in the hands of B, who also held a demand in favor of a creditor against A, with directions to make an attachment of A’s property, it was agreed between A and B that B should retain the money for the use of A’s creditor, and that B should cause A’s property to be attached, and that this agreement should be reduced to writing: this was not done, and A becoming bankrupt, his assignees recovered the money of B in an action for money had and received.

Assumpsit for money had and received. Upon the trial of the cause before Parker, J., at the last November term in this county, the following facts were in evidence, as appears from the judge’s report. The defendant was assignee of the estate, &c., of two bankrupts, viz., Ebenezer Lewis and Elijah Williams, on which estates two dividends were declared, one on the eighth of July, 1802, and the other on the twelfth of September, 1803. James Andrews was a creditor to both estates, and the dividends belonging to him in Mr. Lowell’s hands, amounted to 364 dollars 34 cents, for which sum a verdict was rendered in this case. In January, 1803, a commission of bankruptcy issued against said Andrews, on an act of bankruptcy committed after the first order of dividend above-mentioned, and the present plaintiffs were duly appointed his assignees, and an assignment of all his estate, effects, &c., was duly made by the commissioners to them. Before the bankruptcy of Andrews, and before said first dividend was declared, there was placed in the hands of Mr. Lowell, a demand in favor of the Salem Marine Insurance Company, against said Andrews, for collection ; upon which demand a writ was issued and given to an officer, with directions to obtain security. When the officer called to make service of the writ, which was on the fifth of April, 1802, Andrews went to Mr. Lowell, and agreed with him, that the money whi h should come into his hands, as assignee to Lewis and Williams, belonging to Andrews, should be retained by Lowell, on account of this demand of the Salem Insurance Company, and further agreed to assign over to said Company, or to said Lowell, for their benefit, his claims on said estates, of which said Lowell was assignee, as aforesaid. * No attachment was made in the suit against said [*309] Andrews, but the action against him was entered and prosecuted until his bankruptcy. No assignment was executed by Andrews; and no further transactions appear to have taken place between him and said Lowell. On the tenth of January, 1804, the said Insurance Company, by Jacob Ashton, Esq., their president, proved their debt against said Andrews, before the commissioners of bankruptcy, having deducted 320 dollars, as the probable amount of the money in Mr. Lowell’s hands, from the estates aforesaid. Mr. Lowell being then in Europe, it did not appear that the company knew the amount of the said dividends, or of the net proceeds thereof, which might belong to them. If, upon these facts, the plaintiffs ought to recover the amount of both dividends, judgment to be rendered according to the verdict; if they ought to recover any part, then the verdict to be altered accordingly ; if they are not entitled to recover any thing, a general verdict to be entered for the defendant, and judgment for his costs.