
    Columbia,
    
      November Term, 1815.
    James Martin vs. C William Howil.
    
      Gist,for the Motion,
    
    M’Neal, Contra.
    
    After the a rontract, for ".loner hud and received will lie to flie°prLe.
    This was an action to recover back money paid for a horse, that turned out unsound and died. The declaration contained only a single count for money had and received. But there was a paper filed . A A with the declaration, setting forth the particular cause of action. The plaintiff proved that he gave 180 dollars for the horse ; that he was sick and unsound at the time of sale, and died of that unsoundness before the action was brought; that he had tendered him, as soon as the unsoundness was discovered, to the defendant; who told the plaintiff to keep the horse, and if he died, he should be no loser.
    When the testimony on the part of the plaintiff closed, defendants attorney moved for a non-suit, on the ground that the evidence did not support the declaration. The presiding Judge, {Brevard,) sustained the objection, and ordered a non-suit.
    The present was a motion to set aside this non-suit, &c. Mr. Gist, in support of the motion, laid it down as a rule, that whenever money is paid on a contract which is rescinded by the mutual agreement of both parties, there assumpsit will lie to receive back the money paid. Relied on. 1 Bumf or d East, 133. Q, Bo. 606. 7 Bo. 181.
   Bay, J.

In this case, it appears to me there was a rescisión of the contract, and that it was no longer open; for after the unsoundness of the horse was discovered, the plaintiff tendered the horse to defendant, who did not dispute the unsoundness, hut told the plaintiff to keep the horse, and if he died, he should be no loser.

The warranty of the defendant was here put an end to by the defendant himself,who admitted theunsoundness, and that if the horse died, he would pay. For, saying “that the plaintiff should be no loser,” amounted to a promise to pay. But, independently of that promise, the law would raise the implied as - sumpsit, where the consideration failed. It appears to me, therefore, there was no occasion for the plaintiff to declare on the warranty. The end and design of a special count is to guard against surprise: but here is no pretence of a surprise on the defendant. Tiiere was no question of soundness to be tried between them, for the defendant knew the whole of the matter as well as the plaintiff; and the plaintiff keeping the horse, after the tender, till he died, was acting as the agent of the defendant, and at his request. ■ There is, therefore, no ground to say this was not money paid to the plaintiffs use. And if so, then this action will lie. 1 Term. Rep. 134, 5, ñ. I am, therefore, of opinion that the non-suit should be set aside.

Justices Grimke, Colcock, and Smith concurred.  