MONEY H AD AND RECEIVED. In Pleading. The technical designation of a form of declaration in assumpsit, wherein the plaintiff declares that the defendant had and received certain money, etc.
2. An action of assumpsit will lie to re cover money to which the plaintiff is entitled, and which in justkee and equity, when no rule of policy or strict law prevents it, the defenda.nt ought to refund to the plaintiff, and which he cannot with a good conscience retain, on a count for money had and re ceived. 6 Serg. & R. Penn. 369 ; 10 id. 219 ; 1 Dall. Penn. 148 ; 2 id. 154 ; 3 J. J. Marsh. Ky. 175 ; 1 Harr. N. J. 447; 1 Harr. & G. Md. 258 ; 7 Mass. 288 ; 6 Wend. N. Y. 290; 13 id. 488 ; Addison, Contr..230.
3. When the money has been received by the defendant in consequence of some tortious act to the plaintiff's property, as when he cut down the plaintiff's timber and sold it, the plaintiff may waive the tort and sue in as sumpsit for money had and received. 1 Dail.
Penn. 122 ; 1 Blackf. Ind. 181 ; 4 Pick. Mass. 452; 5 id. 285; 12 id. 120 ; 1 J. J. Marsh. Ky. 543 ; 4 Binn. Penn. 374 ; 3 Watts, Penn. 277; 4 Call, Va. 451.
1. In general, the action for money had and received lies only where mon4rhas been received by the defendant. 14 Serg. & R. Penn.179 ; 1 Pick. Mass. 204 ; 1 J. J. Marsh. Ky. 544 ; 3 id. 6 ; 7 id. 100 11 Johns. N. Y. 464. But bank-notes or any other property received as money will be considered for this purpose as money. 3 Mass. 405 ; 14 id. 122; 17 id. 560 ; Brayt. Vt. 24 ; 7 Cow. N. Y. 622 ; 4- Pick. Mass. 74. See 9 Serg. & R. Penn. 11.
5. No privity of contract between the par ties is required in order to support this action, except that which results from the fact of one man's having the money of another which he cannot conscientiously retain. 17 Mass. 563, 579. See 2 Dall. Penn. 54 ; 5 Conn. 71.