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.(1)
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 *112of 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.