concurring specially. The action of assumpsit for money had and received is comprehensive in its scope and is favored under the law. Although the action is in reality one at law the right to recover is equitable in its nature. Construing this action in its entirety so as to uphold the right of the plaintiff’s cause of action, no demurrer for duplicity having been filed to the petition, I do not think this case is founded upon the idea of a contract, for the plaintiff received no consideration, but is one founded purely “in the equity of the plaintiff’s case, as if it were upon contract.” Culbreath v. Culbreath, supra. This case is somewhat different from those classes of eases in which services are rendered and there arises an implied promise to pay, for in those cases there is a consideration, the services rendered, and the implied promise to pay completes the contract. In the instant case money was paid to the defendant by reason of its fraud and there existed no consideration between the parties. The defendant, therefore, would be under an obligation from the ties of natural justice to refund the money to the plaintiff, not because of a contract but purely because of the “equity of the plaintiff’s case,” from which the law raises a debt. The endorsing of the fi. fa. “without recourse,” was only a part of one of the acts that went to make up the fraud on account of which the defendant received the money to which he was not justly and legally entitled and which he ought not in good conscience retain. Such endorsement was only a part of the transaction which goes to make up the obligation, which gives rise to the equity, and therefore could have no effect upon the action as I construe it. It would then follow that the statute of limitations would not begin to run against the obligation of the defendant until plaintiff either knew or could by the exercise of ordinary diligence have discovered the fraud or facts giving rise to the obligation. For this reason I am of the opinion that the plaintiff is entitled to proceed and the court erred in dismissing his petition on demurrer.