We are of opinion that this action is maintainable. Had the defendant received and retained the overplus money, the facts shown by the plaintiff would entitle him to it; for he was the assignee of Eddy by operation of law. (3 Caines’ Rep. 84.) If the defendant had done his duty, and brought the overplus money into Court, to abide their order, it would, upon the facts set out in the plaintiff’s declaration, have been ordered to be paid to the plaintiff. On this demurrer, we must take the fact to be, that the defendant never received the surplus money; but that, to deprive the plaintiff of it, he gave a deed to Stiles, without requiring payment.
We perceive no ground for saying, that a court of law is not competent to afford ample redress; for the injury complained of here, is an injury accompanied with damage. (6 Johns. Rep. 182. 13 Johns. Rep. 226.) If the defendant Could show that he received the overplus money, and was ready to bring it into Court, or to pay it over, it might defeat the plaintiff’s action. A special action on the case is the only remedy. (1 Chitty’s. Pl. 133.) Assumpsit for money had and received to the plaintiff’s use, would not lie, if the defendant never received the money, and the declaration alleges that he did not. 7 Johns. Rep. 306.
Judgment for the plaintiff.