delivered the opinion of the Court. The plain tiff has set forth his cause of action in a special count, and must be subject to all the technical rules of law applicable to that form of pleading. The consideration that great liberality prevails in our practice as to the evidence admissible under the general counts, can have no influence on the present question as no such counts were filed here, and the inquiry is therefor restricted to the point, as to what evidence was requisite tc support the special contract declared upon.

The action is debt on simple contract; and in the most favorable view for the plaintiff, the rules in respect to the evidence necessary to sustain it, must be the same as in an action of assumpsit where the count had described with equal particularity the contract for the breach of which ihe damages were demanded. The rule is well settled, that in such cases the contract must be stated in its very terms, or according to its legal effect; and any material variance in the statement between the contract alleged and that proved, will be fatal to the action. The question before us is to be tested by this rule.

The plaintiff in his declaration sets forth a special contract of hiring by the defendant; describing the tenements leased, the time of the lease, the price stipulated to be paid for rent, and the time when payable. The counsel for the defendant requested that the jury might be instructed that the plaintiff could not maintain his action unless he proved the specia* *541contract declared upon ; but the judge ruled, that if the plaintiff had permitted the defendant to occupy the whole or any part of the premises mentioned in the declaration, either for the whole or any part of the time therein mentioned, the jury would be authorized to return a verdict for the plaintiff for such sum as the use and occupation of the rooms the defendant had occupied, were reasonably worth, for the time they had been thus occupied.

This, as it seems to us, was in effect abandoning the special contract set forth in the declaration, and resorting to evidence of general indebtment by the defendant for the use and occupation of the premises of the plaintiff; evidence very proper under a general count, but wholly inadmissible under the special count contained in this declaration.

We do not perceive that the circumstance, that the contract of hiring, if any existed between the parties, was a verbal contract, would in any degree affect this question, so as to authorize the ruling of the judge in the manner before stated. It might be a sufficient reason for ruling, that the'special count was not supported, and, under proper general counts, would have authorized the jury to return a verdict for such sum as, upon the evidence, the defendant was found indebted to the plaintiff for the use and occupation of his premises ; but without a general count, the jury could not properly return a verdict, as claimed by the plaintiff.

Exceptions sustained, and case remanded to the Court of Common Pleas for a new trial.