Haskins against Dunham

Haskins against Dunham. To support a count for money had and received, it must be expressly proved that money, belonging to the plaintiff, has come to the defendant’s hands. Assumpsit, for money had and received. Plea, the general issue. To support this action, the plaintiff offered, in evidence, an account of certain sales of goods made by the defendant, who was an auctioneer, by which account it appeared that the sales had been made at a credit of 60. days. The plaintiff, upon this testimony, contended that it was competent to the jury to presume the receipt of the money by the defendant, after the expiration of the 60 days, and that it, therefore, lay with the defendant to prove that he had not received it. [MAJORITY — Thompson, J.] Thompson, J. The count, for money had and received, is technical, and, to maintain it, proof must be given that money, belonging to the plaintiff, has come to the hands of the defendant. Non-suit ordered. Mnrvmet and Van Wyclc, for the plaintiff. Jones and Wells, for the defendant. In the ease of Israel v. Douglass, (1 H. Bl. 239,) Wilson, J., says, it is highly necessary that the forms of actions should he kept distinct. Courts of justice have, in my opinion, already gone quite far enough, in extending the favorite count for money had and received, But I know of no case, where they have gone so far as to allow that count to be maintained, where no money has, in fact, been received by the defendant. My idea is, that where no money has been actually received, no action for money had and received can be supported. Vide etiam, Taylor v. Higgins, 3 East, 169, in confirmation. The general rule indisputably is, that the action for money had and received, cannot be supported, unless the defendant has actually received money. Beardsley v. Soot, 11 Johns. 468. It is not-necessary, however, in all cases, to give positive testimony that the defendant has received money belonging to plaintiff. When, from facts, it may he fairly presumed he has received plaintiffs money, this action, for money had and received, is maintainable. Tuttle v. Mayo, 7 Johns. 134; Doug. 137; Hunter v. Welsh, 1 Starkie, 224.