McCABE v. MAGUIRE, 182 Mass. 255 (1902)

65 N.E. 162

JAMES McCABE vs. ROBERT E. MAGUIRE.

Supreme Judicial Court of Massachusetts. Suffolk.November 14, 1902.
November 17, 1902.

Present: HOLMES, C.J., KNOWLTON, MORTON, LATHROP, HAMMOND, JJ.

Contract, Implied. Attachment.
A deputy sheriff who after an attachment has been dissolved refuses to deliver to the owner the money in his hands, from a sale by agreement of the property attached by him, is liable in an action for money had and received.

CONTRACT against a deputy sheriff for money had and received from the sale of property of the plaintiff attached by the defendant and sold by agreement, the plaintiff subsequently having obtained judgment as defendant in the action in which the attachment was made. Writ in the Municipal Court of the City of Boston dated October 9, 1901.

Page 256

In the Superior Court, to which the case came by appeal, Mason,
C.J. refused to rule that contract for money had and received would not lie against the defendant for a refusal to return to the plaintiff the proceeds from the sale of the attached property. He found for the plaintiff in the sum of $457.18; and the defendant alleged exceptions.

J.C. Johnston, for the defendant.

J.T. Hughes, for the plaintiff.

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. Se 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 Robinson v. Ensign, 6 Gray, 300, 304, 305.

Exceptions overruled.