
    HALLOWAY v. DAVIS.
    Assumpsit for money had and received — contract rescinded.
    Where money has been paid on a contract which has been rescinded, or put an end to, or which the defendant has refused to perform, it may he recovered back in an action* for money had and received.
    Debt, for money had and received. Plea nil debet..
    The plaintiff offered in evidence an article of agreement between the parties for the sale of land.
    
      TV. B. Hubbard, for the defendant,
    objected, that it appears by the papers, that the plaintiff declared on this contract in a special count, to which a demurrer was filed and the count adjudged bad. The plaintiff cannot, after a decision on the demurrer, resort to the common counts. 2. The article offered is of the same subject matter, in full force; and the only remedy the plaintiff has, is upon the specialty.
    
   Wood, J.

The contract is competent evidence. If money has been paid on it, and it has been rescinded, or put an end to, or the defendant has refused to comply with it, on either being shown, the money may be recovered back in this form. 5 O. B. 352. Whether the plaintiff will establish such a case we will not now undertake to say; but the evidence offered is a link in a chain of such evidence.

There was a verdict and judgment for the defendant.  