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.
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. Robinson v. Ensign, 6 Gray, 300, 304, 305.
Exceptions overruled.