Bigelow v. Cambridge & Concord Turnpike Corp.

Where a statute gives a right to recover damages, reduced pursuant to the pro visions of such statute, to a sum certain, an action of debt lies, if no other specific remedy is provided.

This was an action of debt, in which the plaintiff declared on a judgment of the Court of General Sessions of the Peace for this county, rendered February, 1806, for the sum of 1348 dollars damages, in his favor, and against the said corporation. The record upon which the action was founded, recites a petition presented to the Sessions in behalf of the corporation, grounded on an act of the legislature giving liberty to the corporation to extend their road, and providing that where the lands, over which the said road is located cannot be obtained by agreement, a committee maybe appointed on application to the Sessions to estimate the damages, &c. The record then states the appointment of a committee, and their report estimating the damages to be paid by the corporation to sundry persons named, and amongst others, the sum of 1348 dollars to the plaintiff. “ All which being seen and understood by the Court, is accepted. And the Court award that the before-named creditors may severally have a warrant of distress for the sums to them above respectively awarded, unless the proprietors of said turnpike pay the* same within thirty days from this 26th day of February, 1806.” The action was submitted to the decision of the Court, upon the record, together with the following facts, viz. 1. That the plaintiff, within a year from the acceptance of the report, demanded [ * 203 ] payment of the sum awarded him of * the treasurer of the corporation, who refused to pay the same, and said there was no money or property in his hands or within his knowledge, out of which the plaintiffs demand could be satisfied. 2. That within a year from the said acceptance there was no property of the corporation, which could be distrained by the plaintiff for his said damages. 3. That the defendants, hold a bond made by sundry persons to indemnify the corporation, among other things, against the damages so awarded to the plaintiff. 4. That no part of the said damages has ever been paid to the plaintiff. 5. That the defendants have not completed the said road within three years, according to the requisitions of the act mentioned in the record of the Sessions; but that the road has been made over the lands of the plaintiff, and has been in use from the year 1805 to this time, and is now in use. If, upon these facts, and the inspection of the record of the Sessions, the Court should be of opinion that an action of debt could be maintained, the parties agreed that judgment should be entered for the plaintiff for the sum demanded, with the interest thereof from the 20th of February, 1806. Otherwise the plaintiff was to become nonsuit.