694; Casey's Lessee v. Inloes, Id. 658; Watkins v. Peck, 40 Id. 156; Foot v. Ketchum, Id. 678; Brown v. Wheeler, 44 Id. 550; Gray's Adm'r v. Allen, 45 id. 523; Carter v. Darby, 50 Id. 156; Doe v. Walters, Id. 200; Danley v. Rector, Id. 242; Commonwealth v. Moltz, 51 Id. 499, and cases cited in the notes to those decisions. In Sutton v. Wood, 27 Minn. 363, the principal case is cited to the point that to give to the conduct or admission of a party the character and effect of an estoppel, it must have been fraudulent in its purpose, or, in the absence of any such express intention, so directly unjust in its result as to make out against him a clear case of culpable negligence in not having contemplated it as the natural consequence of his admission.

WELLS v. BRIGHAM.

[6 CUSHING, 6.]

BILL OF EXCHANGE NEED NOT BE PAYABLE TO ORDER of the payee. DRAFT PAYABLE ABSOLUTELY ON DEMAND, without condition or contingency, for a sum certain, payable by the drawee generally and not out of a special fund, and specially naming the payee, drawer, and drawee, is a cash draft or inland bill, though it indicates a debt due the drawer as the consideration.

PAROL ACCEPTANCE OF BILL is good.

ACCEPTOR OF DRAFT OR BILL CAN NOT REQUIRE PROOF OF CONSIDERATION between the drawer and payee.

ACCEPTED CASH DRAFT OR BILL IS ADMISSIBLE UNDER COUNT FOR MONEY HAD AND RECEIVED against the acceptor.

ACCEPTANCE OF BILL IS NOT MADE CONDITIONAL by the drawee's saying he can not pay it until he gets returns from certain goods, where he admits having accepted it.

ASSUMPSIT on the common counts by the payee against the acceptor of a certain draft filed as a bill of particulars, directing the defendant to "pay Elisha Wells thirty dollars, which is due me for the two-horse wagon." The draft was admitted in evidence, against the objection of the defendant, that it did not import a consideration between the drawer and payee, and that a consideration must be proved. Evidence was offered to the effect that some months after the date of the order the plaintiff, without showing it, asked the defendant if it would be convenient to him to pay it, and he said he could not until he got returns from certain brooms. A subsequent admission by the defendant that he had accepted the order was proved. The defendant objected that there was no sufficient proof of acceptance, or if any, that it was conditional, but the court decided that the jury might infer presentment and acceptance from the evidence, and that they might also infer performance of the condition, if there was any. Verdict for the plaintiff; exceptions by the defendant.

C. P. Huntington and W. Griswold, for the defendant.

D. Aiken, for the plaintiff.

By Court, SHAW, C. J. This is assumpsit by the payee against the acceptor, on a draft for thirty dollars, drawn by one George Clay upon the defendant, payable to the plaintiff. The first question is, whether this is a cash draft, or inland bill of exchange; if it is, the nature of the draft answers most of the questions which have been discussed. It is not payable to the order of the payee, but that is not essential to make it a bill of exchange: The King v. Box, 6 Taunt. 325. The parties are all specially named, the drawer, the drawee, and the payee. The draft is payable at a time fixed, to wit, on demand; on no contingency or condition, but absolutely; for a sum certain, out of no special fund, but by the drawee generally. The fact that the draft indicates a debt due to the drawer as the consideration, between drawer and drawee, does not make it the less a cash order or draft. The drawee, by his acceptance, admits such debt, and is estopped to deny it, as against the payee. It seems to us, therefore, that this document possesses the characteristics of a cash draft, and upon a general acceptance thereof, which may be by parol, binds the drawee to the holder. The acceptor has no right to require proof of consideration, as between the drawer and the payee; the draft itself is proof of the holder's title. The statement of the origin of the debt, the purchase of a wagon, did not make it the less payable absolutely, and at all events, and not conditionally or out of a particular fund: Haussoullier v. Hartsinck, 7 T. R. 733.

This being a cash draft accepted, we are of opinion that it may be given in evidence on a count for money had and received. The acceptance is an admission that the drawee has funds of the drawer, which, at his request, the drawee, by his acceptance, holds to the use of the payee.

The apology by the defendant for not paying the draft, and stating that he would not be able to pay it till he got returns from his brooms, did not constitute a conditional acceptance; it was not the act relied on as an acceptance. It was evidence, by the drawee's admission, that it had been previously accepted and was then due, which was proper for the jury.

WHAT CAUSES OF ACTION ADMISSIBLE IN EVIDENCE UNDER COUNT FOR MONEY HAD AND RECEIVED.-The common count for money had and received in the action of assumpsit is exceedingly liberal and beneficial in its scope and purposes. It is in the nature of an equitable action or suit, and

lies, as a general rule, wherever the defendant in the action has in his hands money of the plaintiff which he has no right ex æquo et bono to retain, but which he ought, in equity and good conscience, immediately to pay over to the owner: 2 Greenl. Ev., sec. 117; 2 Wait's Law & Pr., 5th. ed., 391; 2 Ch. Pl., 16th Am. ed., 29; Kennedy v. Baltimore Ins. Co., 6 Am. Dec. 499; Goddard v. Bulow, 9 Id. 663; O'Fallon v. Boismenu, 26 Id. 678; Lime Rock Bank v. Plimpton, 28 Id. 286; McCrea v. Purmort, 30 Id. 103; Osborn v. Bell, 49 Id. 275; Culbreath v. Culbreath, 50 Id. 375; Merchants' Bank v. Rawls, Id 394; Wilson v. Sergeant, 12 Ala. 778; Barnes v. Johnson, 84 Ill. 95; Martin v. Chambers, Id. 579; Gallagher v. Frorer, 4 Brad. App. 330; Norway Township v. Clear Lake Township, 11 Iowa, 506; Legard v. Gholson, 24 Miss. 691; Lockwood v. Kelsea, 41 N. H. 185; Kingston Bank v. Ellinge, 66 N. Y. 625; Bahnsen v. Clemmons, 79 N. C. 557; Thompson v. Thompson, 5 W. Va. 190; Anonymous, Lofft, 320; Moses v. Maeferlan, 5 Burr. 1005. An express promise to pay is not necessary to support the count; the law implies tha promise from the possession of the money and the duty to pay; Bahnse V. Clemmons, 79 N. C. 556; Norway Township v. Clear Lake Township, 11 Iowa, 506. But if there is an express promise the count will nevertheless lie if the promise is not conditional or dependent: Harper v. Claxton, 62 Ala. 46.

It is sometimes said that this count will lie wherever a bill in equity would lie: Culbreath v. Culbreath, 50 Am. Dec. 375. But this statement is somewhat too broad and indefinite. Understood, however, in the sense that the count for money had and received may be supported wherever, if the case were of equitable cognizance and a decree for money the relief sought, a bill in equity would lie, it is no doubt correct: Moore v. Mandlebaum, 8 Mich. 433. Still, though the action for money had and received is, in this sense at least, equitable in its nature, and proceeds somewhat upon equitable principles, it is nevertheless simply an action at law, and lies only for the enforcement of legal rights. Hence an equitable owner of a chose in action, it is held, can not maintain the action against the legal owner for money collected thereon: Monday v. Siler, 2 Jones, 389.

It follows from what has already been said as to the nature and scope of this action or count, that any facts, circumstances, or dealings from which it appears that the defendant has in his hands money of the plaintiff which he ought in justice and conscience to pay over to him, are competent evidence to support the count: American National Bank v. Wheelock, 13 Jones & S. 205; Freehling v. Ketchum, 39 Mich. 299.

COUNT LIES ONLY FOR MONEY.-In order to support a count in assumpsit for money had and received, it must in general appear that the defendant has actually received and has in his hands money, or something regarded and treated as money, belonging to the plaintiff, which it is his duty immediately to pay over: Madison v. Wallace, 7 J. J. Marsh. 98; Lary v. Hart, 12 Ga. 422; Hatten v. Robinson, 4 Blackf. 479; Maddox v. Kennedy, 2 Rich. 102. Indeed, in Sergeant v. Stryker, 32 Am. Dec. 404, it is said, that in order to support the count it must appear that the identical money in the defendant's hands was previously in the plaintiff's possession, or is the proceeds of property to which the plaintiff was entitled. But this is too stringent a statement of the doctrine, in view of the authorities. Evidence that property of any kind other than money, or something treated as money, belonging to the plaintiff, has been tortiously taken, or otherwise received and wrongfully withheld by the defendant, if not converted into money, is not admissible to support this count: Barlow v. Stalworth, 27 Ga. 517; Creel v. Kirkham, 47 Ill. 344; Lucket v. Bohannon, 3 Bibb, 378; Johnson v. Haggin, 6 J. J. Marsh.

581; Parker v. Fassit, 1 Har. & J. 339; Watson v. Stever, 25 Mich. 386: Barnum v. Stone, 27 Id. 332; Nightingale v. Devisone, 5 Burr. 2589. So where goods distrained for rent are delivered by the plaintiff to the defendant, upon his promise to pay the rent, where he fails or refuses to pay: Leery v. Goodson, 4 T. R. 687. So where goods are sold to be paid for in goods, and the defendant fails to pay: Beals v. See, 49 Am. Dec. 573. So where live sheep are delivered by the pound, to be returned in the same manner at the end of the year, with a certain number of pounds in addition, and there is a breach of the agreement: Wheat v. Norris, 13 N. H. 178. So where chattels are delivered as the consideration of an agreement to convey land, and the defendant refuses to convey, there being no evidence of a conversion of the chattels into money or money's worth: Johnston v. Salisbury, 61 Ill. 316. So where land is conveyed, estimated at a fixed sum, in exchange for land which the defendant afterwards refuses to convey, even though the land conveyed has been sold: Basford v. Pearson, 9 Allen, 387. But see, contra, Neal v. Neal, 11 Rich. 83.

Where, however, property tortiously taken or detained is actually converted into money or money's worth, the true owner may waive the tort and sue in assumpsit for money had and received: Foye v. Southard, 54 Me. 147; Gray v. Farmer, 55 Id. 487; Watson v. Stever, 25 Mich. 386; Isaacs v. Hermann, 49 Miss. 449. See also the note to Webster v. Drinkwater, 17 Am. Dec. 242, where this subject of waiving a tort and suing in assumpsit is discussed, and see Osborn v. Bell, 49 Id. 275, and cases cited in the note thereto. But where a tax collector seizes and sells property and pays the proceeds into the treasury, it is held that the tort can not be waived so as to sue in assumpsit: Osborn v. Bell, supra. Payment in any manner for goods of the plaintiff sold by the defendant will support a count for money had and received: Hathaway v. Burr, 38 Id. 278. Where the plaintiff as assignee of a note by a tenant for the payment of rent has a lien on the tenant's crop for the rent, a purchaser ➜f the crop with notice of the lien. who sells the same and receives the proteeds, is liable for money had and received: Westmoreland v. Foster, 60 Ala. 448. Where the plaintiff purchased land with money borrowed of the defendant, taking the title in the defendant's name as security, and the defendant sold the land for more than the amount of the loan, it was held that a count for money had and received would lie for the excess: Jackson v. Stevens, 108 Mass. 94; the defendant being regarded as trustee, and the trust being deemed executed by the sale. The mere consumption by the defendant of property of the plaintiff in his hands is not equivalent to a conversion into money for the purpose of supporting a count for money had and received: Barlow v. Stalworth, 27 Ga. 517.

Choses in action stand upon the same footing as other property, with respect to the question now under discussion, and unless they are received as money, a count for money had and received will not lie for their detention. Thus one who gives his note for a consideration which has failed can not maintain this count against the payee: Van Ostrand v. Reed, 19 Am. Dec. 529. So, though the payee has assigned the note, for he may be compelled to take it up: Martin v. Chambers, S4 Ill. 579. So where one deposits his own note on a wager and the wager is declared off, the depositor can not recover the amount from the stake-holder under a count for money had and received, although the stake-holder agreed to account for it as money to the other party if he should win: Andrews v. Cheney, 16 N. H. 597. So the receipt of a bank note, not received as money, will not support the count: Murray v. Pate, 6 Dana, 335; Filgo v. Penny, 2 Murph. 182. But where a chose in

AM. DEO. VOL. LII-48

action is converted into money, a count for money had and received will li● for the proceeds, as in the case of other property converted into money: Shaw v. Gardner, 30 Iowa, 111. Thus where one gave her note to an agent to en. able him to employ an attorney, and the agent sold the note, and the agency was afterwards revoked before the employment of any attorney, a count for money had and received was held to lie against the agent: Clark v. King, Rice, 178. So where an agent to collect notes disposes of them for land and chattels for his own use, he may be held liable for money had and received: Strickland v. Burns, 14 Ala. 511. But a transfer of a chose in action without receiving anything for it is not such a conversion as to support the count; as where a bailee of government bonds delivered them over to one claiming title without receiving any consideration: Barnum v. Stone, 27 Mich. 332.

Anything received as money will support a count for money had and received: 2 Greenl. Ev., sec. 118; whether it be land or personal property: Beardsley v. Root, 6 Am. Dec. 386; Ainslie v. Wilson, 17 Id. 532, and note; Baltimore etc. R. R. Co. v. Faunce, 46 Id. 655; Barbe v. Parker, 1 H. Black. 283, 288; Arms v. Ashley, 4 Pick. 71; Strickland v. Burns, 14 Ala. 511; or negotiable instruments, or other choses in action: Baltimore etc. R. R. Co. v. Faunce, 46 Am. Dec. 655; Pickard v. Bankes, 13 East, 20; Floyd v. Day, 3 Mass. 405; Gooding v. Morgan, 37 Me. 419; Page v. Einstein, 7 Jones, 147. Thus where a gold toothpick, estimated at a certain price, was deliv. ered to make up the amount of a loan for a specific sum, it was held that a count for money had and received would lie therefor: Barbe v. Parker, 1 H. Black. 283, 288. So where a policy holder gave his own note for a premium, and it was receipted for as money, upon his becoming entitled to a return of the premium, it was held that he could maintain a count for money had and received, though the note was unpaid: lemmenway v. Bradford, 14 Mass. 121. So where the note of a third person is paid by mistake, in discharge of a note already paid: Gooding v. Morgan, 37 Me. 419; or as the price of goods or other property purchased, where the consideration fails: Rew v. Barber, 3 Cow. 272; Willie v. Green, 2 N. H. 333; Page v. Einstein, 7 Jones, 147. So where bank notes are received to the plaintiff's use, and treated as money: Welch v. Frost, 48 Am. Dec. 692; Hill v. Kennedy, 32 Ala. 523; Mason v. Waite, 17 Mass. 560; Murray v. Pate, 6 Dana, 335; Pickard v. Bankes, 13 East, 20. Even though they are depreciated: Bank of Missouri v. Benoist, 10 Mo. 519. Where bank notes were delivered to a carrier, in a parcel, for transportation, and he paid them away in discharge of a debt to the defend. ant, the latter was held liable to the owner, under a count for money had and received: Mason v. Waite, 17 Mass. 560. But where a bank note for fifty dollars was by mistake paid away for five dollars, it was held that the excess was not recoverable under a count for money had and received, because the note was not money, and no title passed by the payment: Filgo v. Penny, 2 Murph. 182. This decision was certainly erroneous, if the note was paid and received as money. Even though neither money nor property has been received, a party receipting for money as received may be liable therefor, under a count for money had and received. Thus an insurance broker receipt. ing for a loss as paid when it has not been paid will be liable to his principal for money had and received: Andrew v. Robinson, 3 Camp. 199. So a debtor agreeing that an agent employed to collect the debt shall account for it as paid, when it was not paid, where the agent does, in fact, account for it to the principal, will be liable to the agent, under a count for money had and received: Emerson v. Baylies, 19 Pick. 55.

PRIVITY BETWEEN PARTIES in relation to the money in controversy is ne