An action of assumpsit will lie to recover money to which the plaintiff is entitled, and which in justice and equity, when no rule of policy or strict law prevents it, the defendant ought to refund to the plaintiff, and which he cannot with a good conscience retain, on a count for money had and received. 2. When the money has been received by the defendant in consequence of some tortious act to the plaintiff’s property, as when he cut down the plaintiff’s timber and sold it, the plaintiff may waive the tort and sue in assumpsit for money had and received. . 3. In general the action for money had and received lies only where money has been received by the defendant. But bank notes or any other property received as money, will be considered for this purpose as money. 4. No privity of contract between the parties is required in order to support this action, except that which results from the fact of one man’s having the money of another, which he cannot conscientiously retain.