The Providence news. (Providence [R.I.]) 1891-1906, 1898-03-14
DEMURRER
SUSTAINED
Cakes Sustained by the
Appellate Court.
DECLARATION DEFECTIVE
Case Result OF Failure to Pay Over
Money Collected.
DECLARATION DEFECTIVE
TEXT OF THE COURTS OPINION.

The decision Of the Appellate Court on
tits amended declaration In the case of
Royce Allen & Co. VS. Charles ii. Oakss
was handed down today Ths court sus-
tains the demurrer and the case is remit
tad to the common pleas division for fur
ther proceedings. The opinion of the
court was written by Mr.. Justice I'll
lnghast and Is In part as follows:
"Since the rendition of the former
opinion in this cass sustaining the de-
murrer TO the second court in the decla-
ration, the plaintiffs Lavs amended said
court SO AS TO nllsge In substance, that
OH the 18th day Of January, 1894, they
authorized and empowered the defendant,
who was in their employ for hire, and
acting as their agent ana servant in this
behalf to collect and receive for them
from divers debtors of theirs various
sums of money amounting in all to tina
sum of Sl714.60, and thereupon to deliver
the same to the plaintiffs. And they aver
that the defendant thsreafterwards, in
pursuance of said authority, collected
said sum OF money and thereupon it be-
cameIhis duty TO pay over the same to
the plaintiffs; but that, not regarding
his duty in that behalf although duly re-
quested intending and continuing to in
JuDre aud defraud the plaintiffs he
neglected and still neglects to pay said
money To them. And the plaintiffs de-
clare that said refusal was negligent,
fraudulent and in violation of his duty,
and that by reason of the premises they
ore dopreived of the possession aud bens-
fit of said money.
ln 10 haH ho 1afa apN
as demurred on the grounds first, that
the cause of action, If any, set forth
therein Is an action of contract and not
an action sounding in tort and second
that the injury alleged tu have been
suffered by plaintiffs has been suffered
bv reason Of the commission of the crime
of larceny, and that IL does not appear
that any criminal complaint has been
made therefor
I'VE think the demurrer should be sus-
tainsd on the first ground. The amended
court differs from the former one, which
we held amounted to a cnarge OF embez-
Element, In that IL does not alege a
fraudulent conversion of the money by
the dsfendant 10 his own use, but simply
alleges breach of duty in not paying
over the same to the plaintiffs after de-
mand made therefor. In other words
when stripped OF its formalites 10 simply
shows casa where a servant or agent
has collected money for his principal
and neglected TO ray it over on demand,
that IL case Of money had and received
by the defendant to tins plaintiffs use;
and hence the plaintiffs remedy, and
their only remedy is by asumsit or debt.
It Is time, as contended 10y plaintiff s.
counsel, that the action OF trespass in the
casv is an exceedingly broad ana compre-
hensive form OF action ana that it lies, in
central, where legal injury Is suffered
for which the common law has provided
no adequate remedy. But in case like
the one set out In said court, the common
law has provided an adequats remedy in
an action of sssumpsit; and TO permit the
plaintiffs 10 maiEtain their action Of tres
pass on the case would In effect be 10
abolish the distinction between actions
sounding Ia tort and thcr.- sounding I'm
oontracut, and enable a plaintiff In any
cnse, where money has been had and re-
ceiysd by another to his use to serve in q
tort action for its recovery.