a pair of coach horses for seventy pounds, which he agreed to take back if the plaintiff should disapprove of and return within a month; and the plaintiff did return them within the month, but, instead of demanding the repayment of the money, took another pair in their stead without making any new agreement, which he also returned within a month, and received still another pair instead of those without any new bargain, which latter pair he offered to return, but which the defendant refused to receive, it was held that an action for money had and received would not lie because the contract was still open, and the plaintiff's remedy was by an action upon the contract for damages. Weston v. Downes, 1 Doug. 23. But if the defendant had received the horses back when tendered to him, the action would have lain, for the contract would then have been closed. Towers v. Barrett, 1 T. R. 133. The burden is upon the plaintiff to show that money was received by the defendant, and evidence that he received certain property, as a horse (Doebler v. Fisher, 14 S. & R. [Penn.] 179); stock (Morrison v. Berkly, 7 id. 246); or other property, unless it was received as and in lieu of money (Wheat v. Norris, 13 N. H. 178; Filgo v. Penny, 2 Murph. [N. C.] 182; Clark v. King, 1 Rice [S. C.], 178), does not sustain the action. It does not lie for money paid to another, as by a surety for money paid on account of his liability for his principal (Childs v. Eureka, etc., Works, 44 N. H. 354; Willis v. Crooker, 1 Pick. 205); nor for money due from another for goods sold (Doebler v. Fisher, 14 S. & R. [Penn.] 179; Turner v. Egerton, 1 G. & J. [Md.] 433; Beals v. See, 10 Penn. St. 56); nor for money due for labor or for other benefit conferred, as for a premium of insurance. Smith v. Odlin, 4 Yeates (Penn.), 468. But where one has the property of another in his possession and converts it into money, even without authority, an action for money had and received lies for the sum actually received. Clark v. King, 1 Rice (S. C.), 178; Porter v. Brown, Add. (Penn.) 37; Lemington v. Stevens, 48 Vt. 38. So, a count for money had and received lies to recover the amount of a promissory note. Tebbetts v. Pickering, 5 Cush. 83; Cummings v. Gassett, 19 Vt. 308; Edgerton v. Brackett, 11 N. H. 218. But not against one who is a mere surety thereon. Hatten v. Robinson, 4 Blackf. (Ind.) 479. So it lies upon an accepted draft, even in the hands of an assignee (Weston v. Penniman, 1 Mas. [C. C.] 306); and upon an account stated (Jackson v. Mayo, 11 Mass. 152; Filer v. Peebles, 8 N. H. 226); upon an order for money (Henry v. Hazen, 5 Ark. 401), or other obligation that evidences a money contract upon which money is immediately and absolutely due. Boyd v. Gilchrist, 15 Ala. 849; Shanks v. Dent, 8 Gill (Md.), 120; Marcum v. Beime,

6 J. J. Marsh. (Ky.) 604. But the count is not sustained by a note or other obligation that is payable in specific articles or any thing but money. Wilson v. George, 10 N. H. 445.

It lies for money paid to one for a purpose that never was and never can be accomplished, as where money is paid to a person as president of an association in order that the person paying it may become a member, and afterward, without such person ever having become a member, the association is dissolved, the person receiving the money is liable to the person paying it to him, for money received. Churchill v. Stone, 58 Barb. 233. So, for money paid to an attorney for bringing an action, which he never brought (Danville v. Merrick, 25 Mo. 680); so, for money paid for efforts to be used in obtaining a pardon for a person, where no efforts to that end were in fact made. Adams Express Co. v. Reno, 48 id. 264. So it lies for money received by the assignee of a person for goods purchased by his assignor under fraudulent representations. Hall v. Peckham, 8 R. I. 370. So, where a trustee, mortgagee or pledgee who holds the property of another as security for loans or advances made thereon, sells the property before the equities of the cestui que trust, or mortgagor or pledgor are quieted, he is liable as for money had and received, for any balance remaining after satisfying his own claim. Jackson v. Stevens, 108 Mass. 94; Walcott v. Ronalds, 2 Robt. (N. Y.) 617; Jewett v. Cunard, 3 W. & M. (U. S. C. C.) 277. So it lies against the assignor of a debt or claim who afterward receives the money thereon from the debtor. Bullard v. Hascall, 25 Mich. 132. It lies against a bailee of goods to whom they were sent for sale, when he sells the goods and takes his pay in a currency that subsequently becomes worthless, but which he mingled with his own money and used for his own purposes. Wyly v. Burnett, 43 Ga. 438. So, it lies by the true owner of land against one claiming title thereto, but who really has none, and who has received the amount awarded by commissioners, upon a taking of the land for public purposes. Tamm v. Kellogg, 49 Mo. 118. So it lies for money paid for property when the vendor made false and fraudulent representations as to its quality (Rose v. Depue, 1 Sup. Ct. N. Y. [T. & C.] 16), or for money wrongfully collected by an individual or corporation. Dewey v. Supervisors, 4 id. 606; 2 Hun, 392. So, for money advanced or contributed for an unlawful purpose, provided the action is brought before it has been actually used or expended for such purpose (Bailey v. O'Mahony, 1 Jones & Sp. [N. Y.] 239; S. C., 10 Abb. [N. S.] 270; N. W. Union Packet Co. v. Shaw, 37 Wis. 655; 19 Am. Rep. 781); but where money has been loaned or deposited for a specific purpose, which is unlawful, after it has been applied VOL. IV.-60

to such purpose no action lies therefor. Verona v. Peckham, 66 Barb. 103. See, also, Puckett v. Raquemore, 55 Ga. 235. Where money has been fraudulently obtained from an individual or a bank, an action for money received may be maintained immediately upon discovery of the fraud, whether the note given therefor is due or not. Gibson v. Stevens, 3 McLean (C. C.), 551. So it has been held maintainable for money drawn as å prize, by fraudulent practices. Catts v. Phalen, 2 How. (U. S.) 376.

§ 3. Property received as money. While it is true generally, as previously stated, that an action for money had and received only lies when the defendant has received money itself, yet the rule is subject to the exception that, whenever property has been received as money, or in lieu of money, the action may be maintained. Thus, where A delivers to B a note against C for collection, and B receives from C a horse or other property in full payment of the note, without authority to that end from A. B is liable to A in an action for money had and received to the full amount of the note and interest, precisely the same as though he had received the money on it. By taking payment in whole or in part, in that way, he is treated as purchasing the property himself, with A's money, and is liable the same as though so much money had been received by him. Clark v. King, 1 Rice (S. C.), 178; Strickland v. Burns, 14 Ala. 511. And where other property is thus received in part payment of a note or other obligation an action for money had and received is maintainable for the amount for which such property was taken, as, in this form of action, the plaintiff may always recover whatever sum of money he can show to be in the defendant's hands, to his use, at the time when the action was brought. Tuttle v. Ridgeway, 62 Ill. 515.

Bank bills, or securities for money, are not money, unless made so by statute, so that an action for money had and received will not lie for them, unless they were received as, or have been converted into, or used as money. McLachlan v. Evans, 1 Y. & J. 380; Murray v. Pate, 6 Dana (Ky.) 335. Thus, where a person by mistake gave another a fifty-dollar bank note supposing it to be one for five dollars only, it was held that the difference could not be recovered as for money received. Filgor v. Penny, 2 Murph. (N. C.) 182. So, where this form of action was brought to recover the value of foreign securities, it was held that it would not lie, unless such securities had been actually converted into money. McLachlan v. Evans, 1 Y. & J. 380. But a debt due in foreign money is recoverable in this form of action (Harington v. Macmorris, 5 Taunt. 228), the measure of the recovery being the sum which, in the currency of the country in which the action is

brought, would represent the value of the debt in the country in which it was payable. Scott v. Bevan, 2 B. & Ad. 78. This form of action. does not lie for goods sold upon credit, or otherwise, although the price is payable in money. The remedy is for goods sold. Floyd v. Day, 3 Mass. 405; Beals v. See, 10 Penn. St. 56; Kearney v. Tanner, 17 S. & R. (Penn.) 94. Neither does it lie against the bailee of a bill of exchange who has wrongfully deposited it to his own credit, with his bankers, unless it was due at the time when the action was brought (Atkins v. Owen, 2 Ad. & El. 35; 6 Nev. & M, 307); and, generally, it may be said that this action will not lie except for money in the hands of the defendant belonging to the plaintiff (Wilder v. Aldrich, 2 R. I. 518; Hatten v. Robinson, 4 Blackf. [Ind.], 479); yet, in all cases where property has been received by the defendant as money, or in lieu of money, it will, for the purposes of recovery, be treated as so much money received by him to the use of the plaintiff. Harris v. Wicks, 28 Wis. 198; Hemenway v. Bradford, 14 Mass. 122; Barlow v. Stalworth, 27 Ga. 517; Beardsley v. Root, 11 Johns. 464; Ainslee v. Wilson, 7 Cow. 662; Willie v. Green, 2 N. H. 333; Kearney v. Tanner, 17 S. & R. (Penn.) 94.

§ 4. Waiving torts. There is now no question but that when a person has wrongfully obtained possession of the property of another, and has sold, and received the money for it, the real owner may waive the tort, and bring an action for money had and received against him, for the amount thus received by him. He has his election to treat him as a wrong-doer, and sue him in trespass, or for the conversion of the property, or, he may affirm his acts and claim the benefit of the transaction. Lythgoe v. Vernon, 5 H. & N. 180; Brewer v. Sparrow, 7 B. & C. 310. See, also, ante, Vol. 1, pp. 405-409; also, Jamison v. Moon, 43 Miss. 598; Fox v. Northern Liberties, 3 Watts & Serg. (Penn.) 102; Smith v. Hooks, 19 Ala. 101; Mississippi, etc., R. R. Co. v. Fort, 44 Miss. 423; Whitney v. Allaire, 4 Denio, 554. But the waiver must be complete, and extend to the whole tort. He cannot affirm in part, and disaffirm in part. Lythgoe v. Vernon, 5 H. & N. 180. And having once made his election, he is bound thereby and cannot afterward maintain an action for the tort. Fireman's Ins. Co. v. Cochran, 27 Ala. 228; Rodermund v. Clark, 46 N. Y. (1 Sick.) 354; Tryon v. Baker, 7 Lans. (N. Y.) 511; Wellington v. Drew, 16 Me. 51; Brown v. Moran, 42 id. 44; Foreman v. Neilson, 2 Rich. (S. C.) 289; Gilmer v. Ware, 19 Ala. 252; Goss v. Mather, 2 Lans. (N. Y.) 283; S. C. affirmed, 46 N. Y. (1 Sick.) 689; Patterson v. Peironnet, 7 Watts (Penn.), 337. By electing to take the money for which the goods were sold, he ratifies and affirms the acts of the wrong-doer,

and from that time he cannot treat the transaction as a wrong (Brewer v. Sparrow, 7 B. & C. 310; Lythgoe v. Vernon, 5 H. & N. 180); and, e converso, after having elected to treat it as a tort, he cannot affirm the act of the wrong-doer, and sue him for the money received.

§ 5. Voluntary payment of money. Money voluntarily paid by one, which at law could not have been recovered of him, cannot, in the absence of fraud, or mistake, be recovered back (Fleetwood v. New York, 2 Sandf. [N. Y.] 475; Mays v. Cincinnati, 1 Ohio St. 268; Hope v. Evans, 1 S. & M. [Miss.] Ch. 195; Sheldon v. School District, 24 Conn. 88; Corkle v. Maxwell, 3 Blatchf. [C. C.] 413; Sturges v. United States, Dev. [Ct. Cl.] 20); as, where money is paid to take up a note, upon which the person paying the money is not legally liable (Clancy v. McEnery, 17 Wis. 177; Watson v. Cunningham, 1 Blackf. [Ind.] 321); or for a license which is issued upon the application of a person, and is paid without objection or protest (Mays v. Cincinnati, 1 Ohio St. 268); or to redeem lands sold under void assessments, the payor knowing the facts (Fleetwood v. New York, 2 Sandf. [N. Y.] 475; Indianapolis v. Langsdale, 29 Ind. 486); or to a railroad company for freight upon goods, in excess of the rates permitted by its charter (Kenneth v. S. C. R. R. Co., 15 Rich. [S. C.] L. 284); unless such payment is necessary in order to enable the owner to obtain his goods (Tutt v. Ide, 3 Blatchf. [C. C.] 249); or by an executor to a legatee with knowledge of outstanding claims against the estate, even though there proves to be a deficiency of assets (Wilcocks v. Phillips, 1 Wall. Jr. [C. C.] 47); or to a collector of revenue taxes, without protest or objection (United States v. Clement, Crabbe [C. C.], 499); or under an invalid mortgage foreclosure (Branham v. Mayor, etc., 24 Cal. 585); or for the release of a claim made by a person, who in fact had no valid claim, unless the person receiving the money was guilty of fraud. Brown v. Rich, 40 Barb. 28; Stewart v. Crosby, 50 Me. 130. The rule is, that when money has been obtained by fraud, oppression or extortion, or, when it has been paid to secure a right which the party paying it was entitled to with out such payment, and which was withheld until such payment was made, the payment is involuntary, and the money may be recovered back. Corklev. Maxwell,3 Blatchf. (C. C.) 413.

Thus, where a common carrier agreed to transport certain goods from a certain point to a certain other point, for a sum agreed upon, but, when the goods arrived, he refused to deliver them unless a higher price for their carriage was paid, and the sum demanded was paid, it was held that the payment was not voluntary, and the excess above the price fixed by the contract might be recovered back (Tutt v. Ide, 3 Blatchf. [C. C.] 249; Harmony v. Bingham, 12 N. Y. 99; Lafay