
    * Philip Gedney versus The Inhabitants of Tewksbury.
    An action of debt does not lie upon the award of damages by a committee of the Sessions, for locating a highway, although the report is accepted by the Sessions.
    This was an action of debt brought to recover the amount of the damages assessed by a committee appointed by the Court of Sessions to locate a highway in Tewksbury, a part of which passed over the plaintiff’s land. After the acceptance of the report of the committee, which was in September, A. D., 1803, the record -con-eludes thus: “ Which report, being seen and fully understood by the court, is accepted; and the court hereby establish the way therein described, for a public highway.”
    The parties agreed to refer this action to the opinion of the Court upon an inspection of the record of the Court of Sessions; and if, upon such inspection, the Court here should be of opinion that the plaintiff is entitled to recover the damages aforesaid, in an action of debt, the defendants agree to be defaulted, otherwise the plaintiff agrees to become nonsuit.
    
      Ward, for the defendants,
    argued that the plaintiff’s remedy in this case depended altogether on the statute of 1786, c. 66, directing the method for laying out highways. In the fourth section of that statute it is provided, that if any person be damaged in his property by laying out a highway, the town where the same is, shall make such person satisfaction, according to the estimation of the committee. By the sixth section, the Court of Sessions may order the payment of such sums of money as shall be assessed in damages, to be paid by the town out of its treasury; and, in default of payment after a reasonable time, may levy the same by warrant of distress upon the personal property of the inhabitants, to the use of the person to whom the damages are awarded.
    Where a statute gives a party a right to a benefit, and furnishes no particular remedy, the common law, for effectuating the purposes of the statute, interposes and furnishes a remedy by an action suited to the case. But where a particular and specific remedy is finished and prescribed by the statute, as in this case, the statute remedy must be pursued. Although in this case, the Sessions have omitted to order payment of these damages, yet, upon application, they might be induced yet to do it; and if they refuse, the authority [ * 308 ] * of this Court would not be refused, to compel them to do what they ought by law to do.
    
      Stearns, for the plaintiff.
    Though this record is informal, it is substantially a judgment of a court of record ; and the statute of 1795, c. 61, <§> 1, gives an action of debt upon it. It was a sufficient judgment to authorize a warrant of distress to be issued upon it, which is equivalent to an execution. It is as truly a judgment, as when a court accepts the report of referees. The formal words, idea consideratum est quad recuperet, are not always necessary to constitute a judgment; as in partition, &c. And in the case of Groenvelt vs. Burwell 
      , Holt, chief justice, observed that where courts do not proceed according to the course of the common law, they were not bound to render judgment in a formal manner, by idea c.msideratum est, &c.
    
      Debt lies for damages recovered in an assize, a writ of entry, or a writ of right .
    But if debt will not lie, as upon a judgment, it may be maintained as upon a matter of record. For it lies upon a recognizance, or for an amercement in a court-leet or court-baron, or upon other matters of record, though it be not the record of a superior court . It lies too upon a record that is so defective or erroneous that it may be reversed.
    And it may be added that these proceedings of the Sessions, relating to the laying out highways, after the adjudication of the public convenience and necessity of a way prayed for, are in their nature rather ministerial than judicial acts.
    If the action will not lie as upon a judgment, nor as upon a matter of record, it is contended that it will lie as upon an implied contract .
    Upon a submission to arbitration, even by paroi, debt lies upon the award for the sum awarded . So far the penalty of a bylaw  ; and for a fine against a copyholder .
    * Every person, in contemplation of law, hath agreed [ * 309 ] to pay such sums as are charged upon him by the sentence, or assessed by the interpretation of the law, as soon as the amount is ascertained .
    If in this case there is a conscientious debt, indebitatus assumpsit will lie, and where that will lie, debt will lie also. The plaintiff may have his election .
    The specific remedy given by this statute being a distinct provision, contained in a separate and independent clause, instead of being construed to take away the usual remedy, may be considered as cumulative.
    
      
       1 Ld. Raym. 469.
    
    
      
      
        Rast. Ent. 193—195.
    
    
      
      
        Gilb. Rep. 390.—Walker vs. Witter, Doug. 1.—Crawford vs. Whittal, and. Sinclair vs. Fraser, ibid. 4, in notis.
    
    
      
       4 Co. 90. Slade’s case.
      
    
    
      
      
        Rast. Ent. 153.—2 Bac. Abr. Debt. A.
      
    
    
      
       5 Co. 64.—Hob. 279.
    
    
      
       1 Keb. 166.
    
    
      
       3 Pl. Com. 69 —1 Rol. 600, 601.
    
    
      
      
        Doug. 1.
    
   Parker, J.

I should have been glad to support this action, if, in any view of it, I could discover legal ground on which it could rest. The plaintiff is certainly entitled to his money on every principle of justice. Had there been an order of the Sessions for the payment of these damages, he might have had a warrant of distress by the statute, and this would have been a prompt and sufficient remedy. But I do not think that an action of debt can be maintained on this record, the plaintiff’s claim not being ascertained by consent of parties, by award of arbitrators, or by a judgment of court.

Sedgwick, J.

It gives me pleasure to observe that the plaintiff's counsel has contemplated this subject in every view in which it could be contemplated, and has furnished all the arguments which his case admitted.

This is a special statute provision, by which the damages due to individuals, whose property is;taken for public use, are to be equitably ascertained, and expeditiously recovered. Had the Court of Sessions ordered payment of the money in this case, as they were in duty bound to do, the plaintiff would have had his proper remedy. Upon application, they will probably yet make the regular entry. Should they refuse, this Court may grant a remedy. Where a statute gives a right, and furnishes the remedy, that remedy must be pursued. In this case "the party should have had a warrant of distress. In no case, in my opinion, could an action of [ * 310 ] debt *be maintained; but until the Sessions have ordered payment of the money, there exists no duty on the part of the defendants.

Parsons, C. J.

The declaration of rights prefixed to our consti tution provides that whenever the public exigencies require that the property of an individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. In pursuance of this constitutional declaration, the legislature have given a specific remedy, where lands are taken for a highway, which is a public use. That remedy must be pursued. Should we support an action of debt in this case, we should defeat the useful provision of the statute, which allows a reasonable time, in the discretion of the Court of Sessions, to pass, before a warrant of distress issues, by which the property of individuals, inhabitants of the town, is liable to be taken ; thus giving to the party the independent exercise of a right, which the statute has wisely subjected to the discretion of an impartial tribunal, so far as respects the time for enforcing it.

The regular course for the plaintiff in this case is to move the Court of Sessions for an order of payment, upon which he may take out his warrant of distress. Should they deny the motion, he may apply here for another remedy, which will not probably- be refused .

Sewall, J., absent.

Plaintiff nonsuit. 
      
      
        [Smith vs. Drew, 5 Mass. 514.—Ed.]
     