#### ABSALOM SMITH v. ALEXANDER GRAY, Executor of BENJAMIN MEARS.

Where a person assigned his distributive share in an estate, and afterwards collected and used the amount due upon it, assumpsit will not lie against him at the instance of the assignee.

At the trial of this case at Randolph, on the last Circuit, before his honour Judge Seaweul, it appeared that it was Assumpsit for money had and received, under the following circumstances. The testator of the defendant, in his life-time, executed an instrument of writing, purporting to convey to the plaintiff his distributive share in a certain estate. The instrument was deposited in the hands of the defendant, who was one of the subscribing witnesses, with directions to keep it. The testator afterwards received the distributive share himself, and after his death, the plaintiff brought this suit against the defendant, his executor, to recover the amount. There was much testimony to show the nature of the delivery of the instrument of writing into the hands of the defendant, but the view taken of the case by the Court, renders it unnecessary to state it particularly. The jury, under the intimation of his honour, found for the defendant, and the plaintiff appealed.

Winston, for the plaintiff.

No counsel appeared for the defendant.

Gaston, Judge.

— We deem it necessary to decide but one of the points presented for our consideration, in this *43case. Whether the instrument purporting to be an assignment to the plaintiff of the distributive share, to which the defendant’s testator was entitled, and for which he had obtained a decree, was originally delivered as a deed or as an escroto ; whether if delivered as an escrow, it became his deed by relation, from the time of the original delivery; whether if the first delivery were as an escrow, a subsequent delivery as a deed was not made; or, whether there was not evidence, upon which the jury might find either an original, or a subsequent delivery as a deed; these are questions upon which we forbear to express an opinion. Let the law on these points be as it may, we nevertheless approve of the instruction given by the Judge “ that the plaintiff could not in law maintain this action.”

The plaintiff asserts his right to the money alleged to have been received to his use, by the defendant’s testator, solely under this supposed assignment. Now whatever operation this instrument may have in equity, at law, it did not transfer a title to the distributive share, nor to the money decreed upon it. At law, it could operate only as authority to the plaintiff to collect the money, and perhaps justify him in retaining it, after it should have been collected. When, therefore, the defendant’s testator received the money, he received what in law belonged to him, and we do not see, therefore, how the law can infer upon this receipt, an undertaking to pay the money over to the plaintiff. The case does not appear to us to be analogous to those in which a man has received money as the agent of another, to which his principal had not a legal right. There the money was received as the money of the principal, avowedly to the use of the principal, and must be paid over to the principal, unless the payment be intercepted by him who has a right to forbid it. The dictum of Abbott, C. J., in Cooper v. Wrench, 1 Dowling & Ryland, 482, (16 Eng. Com. Law Reps. 51,) and the decision in Allen v. Impett, 8 Taunt. 263, (4 Eng. Com. Law Reps. 97,) seem to us to depend upon this position, and if correct, can be supported only by it. Here indeed the legal relations of the parties, were those of principal and agent, but the defendant’s testator stood in the relation of principal, *44and the plaintiff in that of agent. The plaintiff could maintain no action of law against the defendant’s testator, unless it were founded on some covenant in the deed, or possibly on an express promise to pay the money collected. •We cannot believe that the action of assumpsit for money had and received may be maintained by the assignee of an unnegotiable chose in action against the assignor, merely because he has collected the money after an ineffectual attempt to transfer the debt. As to the rights of the parties in a Court of Equity, none but that Court is competent either to determine or to enforce them.

Pek Cukiam. Judgment affirmed.