
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1808.
    Huckson v. Avant.
    The action for money had and received lies, to recover back money which had been paid in consideration of a contract, where the contract had . afterwards been dissolved, or put an end to, by the mutual consent of the parties thereto; and the plaintiff in such case, need not set forth the contract in his declaration.
    Motion for a nonsuit. Assumpsit, tried in Darlington district/ before Abraham Branding, Esq., sitting for Judge Waties. The declaration contained two counts. One for money had andre--ceived, the other for money advanced. The evidence was, that the defendant had sold the plaintiff a negro, for which he received a valuable consideration. The defendant soon afterwards complained, that the negro was unsound; in consequence of which, it was agreed between them that the negro should he returned, and the-' price, or consideration money, restored. The negro was returned; but the defendant afterwards refused to refund the money.
    
      The defendant’s counsel moved for a nonsuit, which motion was overruled, and the plaintiff had a verdict.
    The motion for a nonsuit was renewed in this court, by Riohaed-son, of counsel for the defendant, who contended, that by the de-duration the defendant had not notice of the cause of action, so that he could prepare to make his defence ; and was surprised at the trial, by evidence, which, from the generality of the counts, he could not be apprised of. That the ground of the action is a special agreement, which should have been stated, and that on those general counts, a warranty could not be proved. Quoted Doug. 137, 23. Cowp. 807, 818.
   Per curiam.

The action for money, had and received, is go. verned by the most liberal equity, and neither party is allowed to entrap the other in form. The generality of the counts, in a de-duration, ought not to be turned into a surprise on the defendant. In the present case, however, there was no danger of surprise, and the defendant had all the notice the nature of the case required. The money was paid to him on a contract which was put an end to by the mutual agreement of the parties ; and that contract is not the foundation of this action, but merely the inducement to it. The case of Towers v. Wells runs quatuor pedibus with this. 1 D. and E. 133.

Motion discharged.  