
    Abraham Bigelow versus the Cambridge and Concord Turnpike Corporation.
    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.
    
      Ward and Heald, for the defendants,
    cited the act incorporating the proprietors of the turnpike, (Stat. 1802, c. 124,) also the additional act, (Stat. 1804, c. 77,) and they contended that by the second section of the latter act, the Court of Sessions was to cause the damages to be estimated, to order payment to be made in a reasonable time, and to issue warrants of distress, if necessary, as in the case of public highways, and that this was the plaintiff’s only remedy. The case of Gedney vs. The Inhabitants of Tewksbury 
       was cited and relied on, as a decisive authority, that debt does not lie in this case.
    
      Stearns and (Baldwin, for the plaintiff,
    insisted that the Sessions could only liquidate the damages, but had no power to enforce the payment of them. The order of payment * was [ * 204 ] a nullity, and no warrant of distress could issue. The words in the section relied on for the defendants, “ according to the law which provides for the recovery of damages arising from the laying out of highways,” are merely descriptive of the statute referred to, and only relate to the ascertaining of the damages.
    In the case cited for the defendants, the Court went upon general grounds, which do not exist in this — that the statute gave an adequate remedy; that the property was taken for public use ; that a town ought to have reasonable time to raise and collect money, which requires a meeting, a vote, and a tax to be assessed and collected.
    In this case there is no such remedy, as there is against towns. If the Sessions could issue a warrant of distress, it would be of no avail, because there is no corporate property on which it could be levied. But a fieri facias upon a common law judgment may perhaps be satisfied by a sale of the franchise;  or if the corporation resist payment, it may lay the foundation for a quo warranta.
    
    It was objected in Gedney vs. Tewksbury, that where a statute, gave a specific remedy, it must be pursued. But it was admitted in that case, that if the statute only ascertained the right, as in thr case, but furnished no remedy, the common law would supply it.
    
      
       3 Mass. Rep. 307.
    
    
      
       Since the argument and decision of this action, the legislature has enacted, by Stat. 1810, c. 131, that the franchise of any turnpike, or other company, incorporated by law, with power to receive toll, may be attached on mesne process, and sold on execution, to satisfy any judgment recovered against such company. [And see Revised Statutes, eh. 44, sec. 11. — Ed.]
    
   By the Court.

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

Let judgment be entered for the plaintiff for the amount agreed by the parties.  