at this term, delivered the opinion of the Court On the 10th of April 1818, the appellee sold to the appellant, a negro man named Isaac, for the consideration of $404 61, arid gave him an absolute bill of sale of the said negro; but immediately after the execution of the hill of sale, Barron, the appellee, requested Murphy, the yendee and appellant, to state *264to one of the witnesses to the bill of sale the understanding between them respecting the negro, Isaac, when the defendant, Murphey, said the understanding between them was, that the plaintiff, Barron, was to have the said negro again, provided he paid the defendant, Murphey, the money mentioned in the bill of sale within four months, if he wanted the said negro for his own use. The plaintiff, to support his action, gave in evidence to the jury, that on the seventh of July, next after the execution of the said bill of sale, he called on the defendant and paid him the consideration money mentioned in the said bill of sale, and that the defendant did execute and deliver to him a receipt for the money so paid, stating it to be in full for said negro Isaac, if not sold out of the state within one year from that time. The plaintiff also gave in evidence to the jury, that on the day he paid the money to the defendant, he went to take possession of the said negro, who had previously thereto been hired by the defendant to a certain Charles G. Hall, but that when he went into the harvest field, where the labourers of the said Hall were at work, he found that the said negro had absconded about an hour before his arrival, and that he never gained possession of the said negro, who since then has not been found. The plaintiff further proved to the jury, that the defendant did, on ths eighth day of July, in the same year, declare that as he had understood the plaintiff intended selling the said negro out of the state, he should not gain possession of him, and that the defendant did direct one of his female slaves to go to and inform the said Isaac that the plaintiff intended to sell him out of the state; but did not prove that the information was communicato ed to the said Isaac by the said slave, as directed by the defendant. The defendant, to support the issue on his part, proved to the jury, that on the seventh day of July, when the consideration money was paid by the plaintiff to the defendant, he did declare and say to the defendant, that he did exonerate him from the delivery of the said negro, that he knew where he was hired, and that he would take him where he was, and as he was. Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if they should believe that the defendant induced, enticed and persuaded, the said negro to run away, still the plaintiff was not entitled to *265recover on his count for money had and received, nor on eitiler of the special counts in the declaration; which opinion and direction the court refused to give; to which refusal the defendant excepted. And the question now to be decided by this court is, whether the court below did right in refusing to instruct the jury as prayed; or in other words, whether, upon the facts above stated, the action for money had and received can be sustained? The action for money had and received is an equitable action, and equally as remedial in its effects, as a bill In equity. Evans, in his Essay on the action for money had and received, 23, states the principle to be, that a suit in equity must be considered as being merely equivalent to an action for money had and received; and one of the grounds upon which, this action can be supported, is where money has been paid up-en a consideration which has failod. It was contended, in the course of the argument before this court, that upon the payment of the purchase money by the plaintiff to the defendant, ¿he property revested in the plaintiff, and that the action should have been trover. In answer to that argument it may be remarked, that by the agreement of the parties, the defendant was expressly absolved by the plaintiff from any obligation to deliver the negro Isaac to him, he having expressly agreed to take possession of him where he was hired. But it is not necessary to decide whether or not this is a case where the action of trover might be supported; for if the action of assumpsit for money had and received is suátai nablo, there is no error* in the opinion of the court below, and their judgment ought to be affirmed. In Moses vs Macferlan, 2 Burr. 1012, Ld. Mansfield says “the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural Justice and equity, to refund the money. Evans, in his Essays, 17, speaking of a failure of consideration by the misconduct of the defendant, refers to the case of Dutch vs Warren, which is particularly adverted to by Ld. Mansfield in Moses vs Macferlan. That case was as follows: Upon the 18th of August 1720, on payment of £2&2 10, by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welch copper mines, at the opening of the hooks; and for security of his so doing gave him this noler. *26618th of August 1720j I do hereby acknowledge to have received- of Philip Dutch ¿62G2 10, as a consideration for the purchase of five shares; which' I do hereby promise to transfer to the said Philip Dutch as soon as the books are opened; -being five shares in the Welch copper mines. Witness my hand. ílqberi Warren. The books were opened on the 23d of the same month, when Dutch requested Warren to transfer to hint the said five shares, which he refused to do; and told the plain-! tiff he might take his remedy. Whereupon the plaintiff brought an action for money had and received, for the consideration money paid by him. An objection was taken at the trial, that the action would not lie; but that the' action should have been brought for the nonperformance of the contract.. But the ob*jection was overruled by the court, who left it to the consideration of the jury, whether they would not make the price of the said stock as it was upon the 22d of August, when it should have been delivered, the measure of the damages; which they did; and gave the plaintiff but dS175 damages. And a case being made for the opinion of the court of common pleas, the action was resolved to be well brought. The court said, that the extending those actions depends on the notion of fraud. If one man takes another’s money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured either to affirm the agreement, by bringing an action for the nonperformance of it; or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use. So in the case now before this court, if it bad been the duty of the defendant to deliver the negro to the plaintiff, and he had refused to do so according to contract, the plaintiff would have had the right of electing either to have affirmed the agreement, by bringing an action for the nonperformance Of it, or to have disaffirmed it ab initio, by reason of the fraud, and to have brought an action for money had and received to his use; but the evidence is full and explicit, that from the performance of that duty he was expressly discharged by the plaintiff himself. The other two counts being for the nondelivery of th,e slave, according to the contracts as therein stated, it follows, of course, that the judgment of the court below supporting the action, must be reversed. On payment of the pur*267chase money by Barron to Murphey, the property vested in Barron, and his proper remedy to redr.ess the injury he had sustained, would have been a special action on the case against Murphey for enticing or persuading his slave to abscond front his service.

JUDGMENT REVERSED»