McCabe v. Maguire

65 N.E. 162, 182 Mass. 255, 1902 Mass. LEXIS 1005

Opinion

Holmes, C. J.

So far as appears, the defendant may have had the money in his possession or control at the time of the demand upon him. He must be assumed to have had it, in view of the finding for the plaintiff. If he had had the chattels originally attached and had refused to deliver them on demand, he would have been liable in tort for a conversion. Appleton v. Bancroft, 10 Met. 231, 236. Under circumstances like the present, one remedy at least for the conversion of money not in a bag is money had and received. See Allen v. Wright, 134 Mass. 347, 350; Chapman v. Cole, 12 Gray, 141,143 ; (Pitlock v. Wells, 109 Mass. 452, 456;) Mason v. Waite, 17 Mass. 560; Bretton v. Barnet, Owen, 86; Clarke v. Shee, Cowper, 197; Neate v. Harding, 6 Exch. 349. In such cases the defendant cannot escape on the ground that he is a deputy sheriff only, and not the sheriff. Draper v. Arnold, 12 Mass. 449. jRobinson v. Hnsign, 6 Gray, 300, 304, 305.

Exceptions overruled.