Money paid in mistake of fact may be recovered back, sec 752.

Mere negligence does not preclude party from recovering, sec 753. Money paid in mistake of law cannot be recovered back, sec 754. When money paid by third person to agent can be recovered back, sec 755.

Sec 722

When money is received by one party to another's use in such a way that a contractual relation may be assumed to exist between them, or where money is taken wrongfully by one party from another, or is paid without consideration, or is paid in mistake, an action for money had and received may at common law be maintained by the party for whose benefit the money should be held against the party holding the money. In such cases, however, it must appear that the defendant received money; not merely money's worth, such as stock or goods.1 - Lord Mansfield, in a famous judgment, speaks of a suit for money had and received "as a kind of equitable action;"2 and though in England this was once regarded as going too far,3 yet in this country, in part from the convenience of the procedure, in part in some jurisdictions from lack of a distinctive court of chancery, Lord Mansfield's opinion has been accepted in many jurisdictions, and liability maintained for money had and received in all cases in which equity would hold a party responsible for money which he ought rightfully to pay another.4 And even in England the preponderance of opinion is in conformity with the views of Lord Mansfield, that "where money is due ex aequo et bono, it may be recovered in an action" of this class.1 This is a fortiori the case under recent legislation prescribing that when there is a conflict between common law and equitable doctrine the latter is to prevail. sec 723. To sustain an action of this class it is not necessary that there should be express contractual relations between the plaintiff and the defendant.2 It is enough if such relations can be implied from the facts. A party who knowingly receives money as agent for another, such agency being either express or implied from the nature of the transaction, is bound to pay the money so received over to such other person.3 Thus, when one of two joint contractors receives the money due them both, he is liable to the other in a suit for money had and received.4 Money, however, must have been received, and the action does not lie to recover specific articles which, though reducible to money, have not been so reduced.5 Hence, bank stock or other securities cannot be recovered in specie in this form of action.6 But, on proof of the reception by the defendant of whatever passes as currency - e. g., bank notes - there may be a recovery, if the property be in the plaintiff, and the other constituents of the action are made out.7 And when articles are readily converted into cash, and when the probability is, from the nature of the case, that they were so converted by the defendant, it will require but slight extrinsic indications to support the inference of such conversion.8

When one party ought to hold money to another's use, suit for money had and received may be maintained.

1 Chitty on Pl. 10th Am. ed. (1879) 362; Marsh V. Keating, 1 Bing. N. C. 198; Beardsley V. Root, 11 John. 464; Ralston V. Bell, 2 Dall. 242; Hantz V. Sealey, 6 Binn. 405, and cases cited infra, sec 723.

2 Moses V. Macfarlan, 2 Burr. 1012.

3 Miller V. Atlee, 3 Ex. 799; Johnson V. Johnson, 3 B. & P. 169.

4 Allen V. McKeen, 1 Sumner, 317;.

Herrin V. Libby, 36 Me. 350; Knapp V. Hobbs, 50 N. H. 478; Bogart V. Ne-vins, 6 S. & R. 369; Irvine V. Hanlon, 10 S. & R. 219; Harvey V. Turner, 4 Rawle, 223; Arrott V. Brown, 6 Whart. 9; Neff V. Horner, 63 Penn. St. 329; American Steamship Co. V. Young, 89 Penn. St. 186; Gallagher V. Frorer, 4 Ill. Ap. 330.

Money must have been received to plaintiff's use.

1 2 Ch. on Cont. 11th Am. ed. 898; citing Tindal, C. J., Smith V. Jones, 11 L. J. C. P. 100.

2 Infra, sec 732 et seq.; Mason V. Waite, 17 Mass. 563; Harper V. Clax-ton, 62 Ala. 46.

3 Infra, sec 728; Marshall V. Hopkins, 15 East, 309; Clarance V. Marshall, 2 C. & M. 495; Knapp V. Hobbs, 50 N. H. 476; Carnegie V. Morrison, 2 Met. 396; Eagle Bank V. Smith, 5 Conn. 71.

* Kelly V. Evans, 3 Pen. & W. 387; Galbreath V. Moore, 2 Watts, 86.

5 2 Ch. on Cont. 11th Am. ed. 902; Moore V. Pyke, 11 East, 52; Wharton V.

Walker, 4 B. & C. 163; Marsh V. Keating, 1 Bing. N. C. 198; Morgan V. El-ford, L. R. 4 C. D. 352; Beardsley V. Root, 11 Johns. 464; Hantz V. Sealey, 6 Binn. 405.

6 Infra, sec 734-736; Nightingale V. Devisme, 5 Burr. 2589; M'Lachlan V. Evans, 1 Y. & J. 380.

7 Floyd V. Day, 3 Mass. 403; Payson V. Whitcomb, 15 Pick. 212; Emerson V. Baylies, 19 Pick. 55; Shepard V. Palmer, 6 Conn. 95; Ainslie V. Wilson,.

7 Cow. 662.

8 Infra, sec 731; Longchamp V. Kenny, 1 Dougl. 137; Whitwell V. Bennett, 3.

A party, also, who makes himself liable for money had and received, is estopped from saying that the money was not actually in his custody.1 But the title to land cannot be tried in this form of action.2 - As will be hereafter seen, the rule in England and in some jurisdictions in this country is that the plaintiff cannot recover in this or any other contractual suit, unless an acknowledgment of indebtedness from the defendant to the plaintiff can be implied from all the circumstances of the case.3 But the great preponderance of authority in this country is to the effect that it is not necessary to enable a plaintiff to sue on a contract that he should have been a party to it.4