MONEY HAD AND RECEIVED. The technical designation of a form of declara tion in assumpsit, wherein the plaintiff dares that the defendant had and received certain money, etc.
An action of assumpsit will lie on a count for money had and received, to recover mon ey to which the plaintiff is entitled, and which in and equity, when no rule of policy or strict law prevents it, the defend ant ought to refund to the plaintiff, and which he cannot with a good conscience re tain ; Tevis v. Brown's Adm'r, 3 J. J. Marsh. (Ky.) 175; Rice v. Porter's Adm'rs, 16 N. J. L. 447; Wiseman v. Lyman, 7 Mass. 288; see Mason v. Prendergast, 120 N. Y. 536, 24 N. E. 806 ; Wild v. Fry, 45 Ill. App. 276.
When the money has been received by the defendant in consequence of some tor tious 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 assumpsit for money had and received; Whitwell v. Vincent, 4 Pick. (Mass.) 452, 16 Am. Dec. 355 ; Pritchard v. Ford, 1 J. J. Marsh. (Ky.) 543; Willet v. Willet, 3 Watts (Pa.) 277.
In general, the action for money had and received lies only where money has been re ceived by the defendant ; Doebler v. Fisher,
14 S. & R. (Pa.) 179; National Trust Co. of City of N. Y. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632. But bank-notes or any other property received as money will be consid ered for this purpose as money ; Floyd v. Day, 3 Mass. 405, 3 Am. Dec. 171 ; Mason v. Waite, 17 Mass. 560; Vermont State Bank v. Stoddard, Brayt. (Vt.) 24. See Witherup v. Hill, 9 'S. & R. (Pa.) 11. Money paid un der an illegal contract which has been par tially carried into effect cannot be recovered back ; L. R. 24 Q. B. Div. 742.
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 an other which he cannot, conscientiously re tain; Mason v. Waite, 17 Mass. 563; Hall v. Marston, id. 579. See Rapalje v. Emory, 2 Dail. (U. S.) 54, 1 L. Ed. 285 ; Eagle Bank of New Haven v. Smith, 5 Conn. 71, 13 Am. Dec. 37; Moore v. Moore, 127 Mass. 22. See QUASI CONTRACTS.