Webber v. Aldrich
Superior Court of New Hampshire
Assumpsit does not lie to recover back money paid for the release of goods illegally taken by virtue of a warrant of distress. This was an action of assumpsit for $4 34 money had and received by the defendant for the use of the plaintiff.
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Assumpsit does not lie to recover back money paid for the release of goods illegally taken by virtue of a warrant of distress. This was an action of assumpsit for $4 34 money had and received by the defendant for the use of the plaintiff. The cause was submitted to the decision of the court, upon the following facts : The defendant, being the captain of the seventh company in the thirty-second regiment of the New-Hampshire militia, mustered the said company on the 27th September, 1818. The plaintiff, being duly enrolled in said company and duly warned, did not do military duty on said day;…
1Opinion of the CourtWoodbury, J.
It is contended on the part of the defendant in this case, that an action of assumpsit cannot be maintained upon the facts stated, and as this objection will dispose of the action, it becomes unnecessary to examine any other objection.
When the body has been arrested, or property seized illegally, trespass lies, and is the usual remedy pursued. 3 Cranch 331, Wise vs. Withers.—13 Mass. R. 283.—15 do- 144.
Replevin has also been sustained where property was taken, because the taking being altogether unjustified must be deemed tortious.(l) Assumpsit for money had and received might likewise lie,…
2Cases cited1 opinion
- Wise v. WithersSupreme Court of the United States · 1806
3Cited by3 opinions
- Colwell v. PedenSupreme Court of Pennsylvania · 1834
- Prescott v. CarrSuperior Court of New Hampshire · 1854
- Bell v. ScammonSuperior Court of New Hampshire · 1844