Elwell v. Martin
Supreme Court of Vermont
Assumpsit for money had and received. Plea, the general issue, and trial by the court, at the September Term, 1858, in Chittenden county, — Bennett, J,, presiding.
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Assumpsit for money had and received. Plea, the general issue, and trial by the court, at the September Term, 1858, in Chittenden county, — Bennett, J,, presiding. The suit was brought to the March Term, 1858, and was tried upon a case stated by which it was admitted that on the 22d of September, 1857, the defendant tortiously, and without the plaintiff’s knowledge or consent, took from the latter one hundred and ninety dollars in bank bills and specie, belonging to the plaintiff, and never returned the same to the plaintiff, nor paid him therefor. The defendant was a minor until June 30th,…
1Opinion of the CourtAldis, J.
The defendant, a minor, tortiously and without the knowledge or consent of the plaintiff, took from him one hundred and ninety dollars in money; is he liable therefor in assumpsit for money had and received?
It is admitted that if he were an adult he would be so liable. Where property has been tortiously taken and converted into money, the plaintiff may sue in tort, or he may waive the tort and sue in assumpsit. When it is said that he waives the tort, it is not meant that he does any act or makes any averment in his declaration to that effect. He simply brings assumpsit instead of trespass or…
2Cases cited2 opinions
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