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. This decision appears to have been grounded on the general principle, that an acceptor is bound to know the handwriting of the drawer, and that it is rather by his fault or negligence, than by mistake, if he pays on a forged signature. But where the defendant had got the plaintiff to discount a navy bill, which turned out to be forged, he was holden liable to refund the money; although both parties were, at the time, equally ignorant of the forgery. So in Bruce v. Bruce, 5 Taunt. 495. note, and 3 B. and Č. 437. a similar decision was made on a victualling bill, which the victualling office on which it was drawn had paid before the forgery was discovered. So where bills of exchange, purporting among others to have the indorsement of H. and Co. bankers of Manchester, were presented for payment in London, where the acceptance directed them to be paid; payment being refused, the notary who presented them took them to the London correspondent of H. and Co. who took up the bills for their honour, and struck out the indorsements subsequent to that of H. and Co. and the money was paid over to the defendants, the holders of the bills. The same morning it was discovered, that the bills were not genuine, and that the names of the drawer, acceptor, and H. and Co. were forgeries; plaintiff immediately sent notice to the defendants, and demanded repayment. This notice was given in time for the post, so that notice of the dishonour could have been sent the same day to the indorsers. It was holden that the plaintiff, having paid the money through a mistake, was entitled to recover it back, the mistake having been discovered before the defendant had lost his remedy against the prior indorsers; and that the rights of the parties were not altered by the erasure of the indorsements, that having been done by mistake, and being capable of explanation by evidence.

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

k Jones v. Ryde, 5 Taunt. 488.

1 Wilkinson and others v. Johnson and others, 3 B. & C. 428.

m Nightingale v. Devisme, 5 Burr. 2589. See also Jones v. Brinley. 1 East, 1.

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. But no security or equivalent for money can form the subject matter of this action, unless the parties have treated it as money, or a sufficient time has elapsed, so as to raise an inference, that it has been converted into money. Hence this action will not lie to recover the value of foreign securities paid to the defendant, where it appears, that he had not any opportunity of converting such securities into British money.

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

n Pickard v. Bankes, 13 East, 20.
o Andrew v, Robinson, Camp. N. P.

C. 199.

p McLachlan v. Evans, 1 Young and Jervis, Exch. R. 380.

q Ramsey v. Atkinson, I 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 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 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, 19 Geo. 1. the defendant pleaded, that after the promise, aud 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).

(51) A different rule holds in actions on promissory notes, where

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 (52); for a material variance between the contract alleged and the contract proved will be fatal:

As where the contract alleged was, to deliver good “merchandizable" wheat, and the proof was to deliver good second sort of wheat, the plaintiff was nonsuited for the ariance: 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 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 abso

c Cooke v. Munstone, 1 Bos. and Pul. N. R. 351.

d Per Holt, C. J. Ld. Raym. 735.

e White v. Wilson, 2 Bos. & Pul. 116. f Penny v. Porter, 2 East's R. 2.

the day forms an essential part of the agreement. Stafford v. Forcer. E. 1 G. 1. cited in Cole v. Hawkins, Štr. 22. and reported in 10 Mod. 311.

(52) Or as defendant says it was made. A bill of exchange was drawn in this form; " pay to our order," &c. signed in the name of two persons and Co. and accepted by the defendant; it was holden that in an action against the defendant as acceptor, it might be declared upon by the indorsees as a bill drawn by an aggregate firm; and although it was proved that the firm consisted of one person only, it was holden not to be a variance. Bass v. Clive, 4 M. and S. 13.

Lute contract for the delivery of either of those quantities (53)., 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. But see stat. 9 G. 4. c. 15. and post. under tit. Covenant.

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 (54). In like manner, where the plaintiff states

g Shipham v. Saunders, B. R. E. 23. i Per Lord Ellenborough, C. J. deliverGeo. 3. 2 East's R. 4. n. (a).

ing the judgment of the court in Clark v. Gray, 6 East's R. 569, 570.

(53) 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.

(54) "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,