Howe v. Clancey

53 Me. 130

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1865
• Status: Published

Opinion

Davis, J.

By chapter 102 of the laws of 1844, incorporated into the Revised Statutes, chapter 120, section 12, it is provided that " an action for the recovery of property stolen may be maintained by the owner against the person liable therefor, although the thief is not convicted.”

If the law was ever different, as seems to have been supposed in the case of Foster v. Tucker, 3 Maine, 458, it was changed by this statute.

When specific articles have been stolen, and have not been converted into money, it may be that the remedy is by an action of trespass, or case, instead of by an action of as-sumpsit.

But if the stolen property was money, or has been converted into money, an action of assumpsit, for money had and received, is maintainable, according to the established doctrine that when one man has money in his hands that in equity and good conscience belongs to another, it may be recovered in this form of action. The plaintiff may waive the tort in this case, as well as in any other case of wrongful taking. B. & W. R. R. Co. v. Dana, 1 Gray, 83.

The question proposed, and to which objection was taken, became immaterial by reason of the answer given.

Exceptions overruled.

Appleton, C. J., Kent, Walton and Danforth JJ., concurred.