money had and receive

MONEY HAD AND RECEIVED. An action of assumpsit will lie to recover money to 
which the plaintiff is entitled, and which in justice and equity, when no 
rule of policy or strict law prevents it, the defendant ought to refund to 
the plaintiff, and which he cannot with a good conscience retain, on a count 
for money had and received. 6 S. & R. 369; 10 S. & R. 219: 1 Dall. 148; 2 
Dall. 154; 3 J. J. Marsh. 175; 1 Harr. 447; 1 Harr. & Gill. 258; 7 Mass. 
288; 6 Wend. 290; 13 Wend. 488; Addis. on Contr. 230. 
     2. 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 
assumpsit for money had and received. 1 Dall. 122; 1 Blackf. 181; 5 Pick. 
285; 1 J. J. Marsh. 543: 4 Pick. 452; 12 Pick. 120; 4 Binn. 374; 3 Watts, 
277; 4 Call, 451. 
     3. In general the action for money had and received lies only where 
money has been received by the defendant. 14 S. & R. 179; 1 Pick. 204; 7 S. 
& R. 246; 1 J. J. Marsh. 544; 3 J. J. Marsh. 6; 7 J. J. Marsh. 100; 3 Bibb, 
378; 11 John. 464. But bank notes or any other property received as money, 
will be considered for this purpose as money. 17 Mass. 560; 3 Mass. 405; 14 
Mass. 122; Brayt. 24; 7 Cowen, 622; 4 Pick. 74. See 9 S. & R. 11. 
     4. No privity of contract between the parties 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. 54; Mart. & Yerg. 221; 5 Conn. 71.