So where the plaintiff sold the defendant a pair of coach horses, which he undertook to take back if the plaintiff should disapprove of them, and return them within a month. The plaintif did return them within a month, but took another pair from the defendant, without making any new agreement. This the plaintiff also returned within a month, and received a third pair on the 23d of December, without 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. 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 ratâ 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It must be observed, however, that where the contract is rescinded by the original terms of it, no act remaining to be done by the defendant, the plaintiff is entitled to recover back his money.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 defendant 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 party, the other party, not having done any thing which can be considered as an execution of the contract in part, may abandon the contract

e Weston v. Downs, Doug. 28.

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

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:

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 had 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. So where an insurance broker having received credit in an account with an underwriter for a loss, upon a policy, whereupon the name of the underwriter was erased from the policy; it was holden', that the principal might maintain an action for money had and received against the broker, although he had not actually received any money from the underwriter; for the broker having deprived the plaintiff of his remedy against the underwriter, and having

received credit in account for the money, he was estopped from saying that he had not the sum in his hands for the plaintiff's use.

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 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 so.

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 first of May", 3 Car. 1. and the

m Ramsey v. Atkinson, 1 Lev. 50. Whitehead v. Brown, 1 Lev. 96.

q Heaven v. Davenport, 11 Mod. 365. Svo, ed.

r Winford v. Powell, Ld. Raym. 1310. Stone v. s Per Atkins and Scroggs, Js. 2 Mod. Hauslip 197.

n Drake v. Beare, 1 Lev. 104, 5.
• Price v. Hill, 1 Lev. 137.
Waddington, 1 Lev. 156.
v. Coater, 2 Lev. 87.

Cooper, 2 Wils. 16.

Waldock v. t lukersalls v. Samms, Cro. Car. 130, u Lee v. Rogers, 1 Lev. 110.

p Trevor v. Wall, 1 T. R. 151.

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

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. I. 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).

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 fataly:

As where the contract alleged was, to deliver good "merchandisable" wheat, and the proof was to deliver good "second sort" of wheat, the plaintiff was nonsuited for the variance:

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

x Mathews v. Spicer, Str. 806.

y Cooke v. Munstone, 1 Bos. & Pul. N. R. 351.

z Per Holt, C. J. Ld. Raym. 735.
a White v. Wilson, 2 Bos. & Pul. 116.

(51) A different rule holds in actions on promissory notes, where the day forms an essential part of the agreement. Stafford v. Forcer, E. 1 G. 1. cited in Cole v. Hawkins, Str. 22. and reported in 10 Mod. 311.

or America, and afterwards to London, &c. ; the variance 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).

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 warrantyd, 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 guiLord Kenyon held the variance fatal.

neas.

The Consideration.-Every part of the entire considera

b Penny v. Porter, 2 East's R. 2.
e Shipham v. Saunders, B. R. E. 23
Geo. 3. 2 East's R. 4. u. (a).

d Hort v. Dixon, Middx. Sit. after M. T. 37 G. 3. B. R. MSS. See also Symonds v. Carr, 1 Camp. N. P. C. 361.

(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 abso lute contract," was extra-judicial. MSS.