making any new agreement. The plaintiff disapproved of the third pair, because they were restive and would not draw, and offered to return them on the 5th of January following, but the defendant refused to take them back, and, thereupon, the plaintiff brought an action against the defendant for money had and received. It was holden, that it would not lie; for the original special contract having been continued through all the subsequent dealings, the defendant ought to have had notice by the declaration, that he was sued upon that contract.

So where a seaman had contracted with the defendant to go a voyage from A. to B.o, and back again, with a stipulation, that he should not be entitled to his wages until the end of the voyage; it was holden, that he could not maintain a general indebitatus assumpsit to recover his wages pro rata as far as B., though he had been wrongfully dismissed at B. by the defendant.

It must be observed, however, that where the contract is rescinded by the original terms of it, no act remaining to be done by the defendant, the plaintiff is entitled to recover back his money. As where plaintiff had paid to the defen dant ten guineas for a chaise, on condition to be returned in case the plaintiff's wife did not approve of it, paying 3s. 6d. per diem for the time; the plaintiff's wife not approving of the chaise, it was sent back at the expiration of three days, and left on defendant's premises without any consent on his part to receive it; the hire of 3s. 6d. per diem was tendered at the same time, which defendant refused as well as to return the money. An action for money had and received being brought for the ten guineas, it was holden, that it would well lie.

So where a contract is not carried into execution by reason of some negligence or default of one partys, the other party, not having done any thing which can be considered as an execution of the contract in part, may abandon the contract and recover the money which he has paid on such contract: but this rule holds only where the contract can be rescinded in toto, so as to place both parties in the same situation they were in before. See further on this point, Cooke v. Munstone, 1 Bos. & Pul. N. R. 351.

12. In an action for money had and received to the plaintiff's use, the plaintiff cannot recover the money, unless it be against conscience that the defendant should retain it:

o Hulle v. Heightman, 2 East's R. 145.
p Towers v. Barrett, 1 T. R. 133.
q Giles v. Edwards, 7 T. R. 181.

r Hunt v. Siik, 5 East's R. 449. recog. nizing Giles v. Edwards,

Hence, where a forged bill of exchange was drawn upon the plaintiff, which he accepted and paid to an innocent indorsee for a valuable consideration, and the plaintiff on discovering the forgery brought an action against the indorsee to recover back the money as money paid by mistake, it was holden, that the action would not lie; for it was not unconscientious in the defendant to retain the money when he had once received it, upon a bill for which he had given a fair and valuable consideration, without the least privity or suspicion of any forgery, and the plaintiff' ought to have satisfied himself, whether the bill was really drawn upon him by the person whose name was subscribed to it.

13. It remains only to observe, that the consideration of this action must be money. Hence stock cannot be recovered in an action for money bad and received'; stock being a new species of property, and not money. But where,

upon a wager of ten guineas to one, the stake-holder received country bank-notes, and paid them over wrongfully to the party who had lost the wager; it was holden", that an action for money had and received would lie at the suit of the winner; Lord Ellenborough C. J. observing, that provincial notes were certainly not money; yet, if the defendant received them as money, and all parties agreed to treat them as such at the time, he should not be permitted to say that they were only paper and not money. As against him it was so much money received by him.

III. Of the Declaration.

Venue.-THE action of assumpsit being founded on contract is transitory (50), and consequently the venue may be laid in any county at the election of the plaintiff.

Where an action is brought in an inferior court, it must be stated in the declaration, that the cause of action accrued within the jurisdiction of the court. Hence in assumpsit in an inferior court, not the promise only, but the consideration also, on which such promise is founded, must be laid within the jurisdiction; for, the inferior court cannot hold

Price v. Neale, 3 Burr. 1354. 1 Bl.
R. 399 S C.

t Nightingal v. Devisme, 5 Burr. 2589.
See also Jones v. Brinley, 1 East, 1.

u Pickard v. Bankes, 13 East, 20.
x Ramsey v. Atkinson, 1 Lev. 50.
Whitehead v. Brown, 1 Lev. 96.

(50) Debitum et contractus sunt nullius loci. 2 Inst. 230.

plea unless the whole matter is within their jurisdiction; consequently, if a declaration for goods sold and delivered, or money had and received, or money paid, merely state that the defendant promised to pay within the jurisdiction, without stating the sale and delivery of the goods, or the receipt or payment of the money, to have been within the jurisdiction, it will be error; and error, even after verdict, for in this case nothing shall be intended to be within the jurisdiction, that is not expressly averred to be soo.

Day. The day mentioned in the declaration, on which the cause of action is stated to have accrued, is not material, provided it be a day after the cause of action accrued and before action brought. If the defendant by his plea makes the time material, the plaintiff may by his replication answer to that plea, without being guilty of a departure; as where the promise was laid on the 1st of Mayf, 3 Car. 1. and the defendant, pleaded that the writ was first brought the 4th February, 14 Car. 2., and that he did not promise within six years before the said 4th February: replication, that he promised within six years before the said 4th of February: on motion in arrest of judgment it was holden, that the replication was not a departure from the declaration; because the time in the declaration was not material.

So where the plaintiff declared upon a promise made 26th March, 12 Geo. 1. the defendant pleaded, that after the promise, and before the bill filed, viz. 2d April, he tendered the money; the plaintiff replied, that after making the promise, viz. 12th February, he filed his bill on demurrer it was objected, that plaintiff had brought his action, as appeared by his own shewing, before the cause of action accrued. But the court over-ruled the objection, observing, that as the plaintiff would not in evidence have been confined to the day in his declaration, there was not any reason he should be more confined in pleading; that in the case of a common assumpsit, the day was alleged for form only, and therefore the defendant could not confine the plaintiff to the day alleged in the declaration (51).

y Drake v. Beare, 1 Lcv. 104, 5.
z Price v. Hill, 1 Lev. 17. Stone v.
Waddington, 1 Lev (56. Hauslip
v Coater, 2 Lev. 87. Waldock v.
Cooper, 2 Wils. 16.

a Trevor v. Wall, 1 T. R. 151.
b Heaven v. Davenport, 11 Mod. 365.
Svo, ed.

c Winford v. Powell, Ld. Raym. 1310. d Per Atkins and Seroggs Js. 2 Mod. 197.

e Inkersalls v. Samms, Cro. Car. 130. f Lee v. Rogers, 1 Lev. 110

g Mathews v. Spicer, Str. 806.

(51) A different rule holds in actions on promissory notes, where the day forms an essential part of the agreement. Stafford v. Forcer,

Manner of stating the Contract. In the action of assumpsit the declaration must state the contract, on which the action is founded, truly and correctly; that is, either in the terms in which it was made, or according to the legal effect and operation of those terms; for a material variance between the contract alleged, and the contract proved, will be fatal:

As where the contract alleged was, to deliver good "mer-· chandisable" wheat', and the proof was to deliver good "second sort" of wheat, the plaintiff was nonsuited for the variance:

1

So where the plaintiff declared upon a contract for wages upon a certain voyage from London to Africa, and thence to the West Indies; but the proof was of a contract for a voyage from London to Africa, and thence to the West Indies or America, and afterwards to London, &c.; the varjance was holden to be fatal, the contract proved being for a different voyage than that declared on.

So where the plaintiff had agreed to purchase of the defendant 100 bags of wheat', 40 or 50 of which were to be delivered on one market day, and the remainder on the next market day, and the defendant had delivered 40 bags on the first market day, but had failed in delivering the remainder: in an action brought for the non-delivery of the residue, one count of the declaration stated the agreement to be for the delivery of 40 bags, and another for the delivery of 50 bags, in the first instance, but the contract was not stated in the alternative in any part of the declaration; the court held the variance fatal; for the contract ought to have been stated according to the original terms of it, which made it optional in the defendant to deliver 40 or 50 bags in the first instance, and not an absolute contract for the delivery of either of those quantities (52).

h Cooke v. Munstone, 1 Bos. & Pul. k White v. Wilson, 2 Bos. & Pul. 116. N. R. 351. 1 Penny v. Porter, 2 East's R. 2.

i Per Holt C. J. Ld. Raym. 735.

E. 1 G. 1. cited in Cole v. Hawkins, Str. 22. and reported in 10 Mod. 311.

(52) At the close of the first argument on this case, Lord Kenyon C. J. said, that the opinion delivered by Lord Mansfield C. J. in Layton v. Pearce, Doug. 15. viz. "that where a contract is optional in a party, and he makes his election, the option is thereby determined, and the contract may then be declared on, as an absolute contract," was extra-judicial. MSS,

K

So where the contract was to deliver goods within fourteen days", or as soon as a certain vessel arrived; the vessel arrived after the fourteen days; and on breach of the contract, by non-delivery, the plaintiff declared, in one count on a contract by the defendant to deliver within fourteen days, and in another count to deliver on the arrival of the ship; but there being no count laying the contract in the alternative, the court held the variance fatal.

Assumpsit upon a warranty", that a horse was sound, in consideration that plaintiff would buy him at a certain price, to wit, 861. 5s. with another count in consideration he had bought him; it appeared in evidence, that the horse was bought jointly with another at one entire price of 60 guineas. Lord Kenyon held the variance fatal.

The Consideration.-Every part of the entire consideration for any promise contained in the agreement must be stated in the declaration. But in framing a declaration on an agreement, which consists of several distinct parts and collateral provisions, it is not necessary to state in the declaration every part of such agreement; it is sufficient to state so much of the agreement as contains the entire consideration for the act, and the entire act which is to be done, in virtue of such consideration. The rest of the contract, which respects the liquidation of damages only, after a right to them has accrued by a breach of the contract, is matter proper to be given in evidence to the jury, but not necessary to be shewn to the court in the first instance on the face of the record (53).

In like manner, where the plaintiff states the whole consideration trulyP, and then states those parts of the defendant's promise, the breach of which he complains of, truly and correctly; that is sufficient, without stating other parts of the promise irrelevant to the breach complained of.

m Shipham v. Saunders, B. R. E. 23
Geo. 3. 2 East's R. 4. n. (a).
Hort v. Dixon, Middx. Sit. after M.
T. 37 G. 3. B. R. MSS. See also Sy-
monds v. Carr, 1 Camp. N. P. C.
361.

o Per Lord Ellenborough C. J. delivering the judgment of the court in Clark v. Gray, 6 East's R. 569, 570. p Miles v. Sheward, 8 East, 7.

(53) "There are a great variety of agreements not under seal, containing detailed provisions regulating prices of labour, rates of hire, times and manner of performance, adjustments of differences, &c. which are every day declared upon in the general form of a count for work and labour." Per Lord Ellenborough C. J. S. C.