The first count is defective in not stating any promise of the defendant which was to be performed before the date of the writ. It is a specimen of very loose and inartificial pleading.

The second count, being a general count for money had and received, with a bill of particulars annexed, is good. If the plaintiff did pay to the defendant the alleged sum of $500, and the defendant did promise the plaintiff in consideration thereof to procure five volunteers to be mustered into the military service of the United States, to count on the quota of the town of Sandisfield, and did not perform his promise though the time' for its performance had elapsed, the plaintiff" is entitled to recover back his money, on the ground that the consideration for which he paid it has failed. Hill v. Rewee, 11 Met. 268.

It is objected that the declaration alleges that both counts are for the same cause of action, and that it appears by the first count that the plaintiff made the contract as an agent for other persons. But we cannot thus construe the first count. It alleges that the contract was made between the parties to the writ, and that the plaintiff paid the defendant the money. If this be so, the plaintiff is the proper and only party to bring the action, though he was acting on behalf of others; for an agent may make a personal contract by which he alone is bound, and on which he alone can sue. Such a contract is set forth in this declaration. " Demurrer overruled.