This is an action to recover the sum of $1,500, as money had and received by the defendant for the use of the plaintiff. The record shows that the plaintiff, who is a merchant in New York, consigned to one Shaw merchandise to be sold by him on commission del credere. Shaw received and sold the goods. He died; the defendant was appointed administrator of his estate, and collected the money from the purchasers, to the amount of $1,500, knowing the facts. Plaintiff demanded the money of the defendant, and upon his refusal to pay brought this action and recovered judgment, from which the defendant appeals, contending that the money is part of the assets of the estate of Shaw, and that the plaintiff’s only remedy is to file his claim as creditor of the estate and receive his dividends thereon.
It is clear that the money received by the defendant formed no part of the assets of the estate of Shaw. It was the property of the plaintiff, and he had a right to maintain an action to recover the same against the defendant. (Merrick's Estate, 8 Watts & Sergeant, 402; Thompson v. Perkins, 3 Mason, 232; Kelly v. Munson, 3 Mass. 319; Beach v. Forsyth, 14 Barb. S. C. 499.)
The appellant also contends that the action is notin proper form. Under our system of practice the rights of parties depend, not upon mere matters of form, but upon the merits of the case, as *519shown by the pleadings and evidence. The facts show that the defendant received the money of the plaintiff, that he has refused to pay it upon demand, and these facts are sufficient to sustain the action.
The judgment is affirmed.