The declaration in this case, in addition to the usual money counts and a count on an account stated, contained two special counts, being the counts referred to in the 1st and 2nd grounds of the motion. The first of these charges that the defendant, “ being then and there indebted So the said plaintiff, iq another sum of one hundred apdt *198«leven dollars, in consideration thereof, then and there gave an order in writing,” Sic. After setting out the order drawn by defendants on Carr, concludes by avering, “ that the said R. Carr, although often requested to pay to the said plaintiff the aforesaid fifty-four dollars, 8ic. and fifty-six dollars, has hitherto altogether neglected and refused, whereby, Sic.” without alleging that the order had been accepted and not paid, or that he had not accepted, or that the defendant had notice.

The other count, referred to in the second ground, as a part of the description of the order, uses the words “ value therein acknowledged” Sic. It is a well settled rule, if the plaintiff declares on a special contract, he cannot give a different special contract in evidence on the money counts, because itis calculated to surprize the defendant. The plaintiff was not, therefore, entitled to recover on the money counts, nor on the account stated; for there was no evidence to support them: so that the case must turn upon the sufficiency or insufficiency of the special counts. In reference to the first ground, the rule is, that it is incumbent on the plaintiffs to state such a case on their record as will clearly show the defendant’s liability. Now to charge the defendant, it was indispensably necessary that the order should have been presented to Carr, and that he should have refused to have accepted or had accepted and not paid; and the defendants should have had notice of the non-acceptance or non-payment by Carr; and this count contains no such averments. The case of Saxton et. al. vs. Hutchinson, 10 Johnson R. 418. (see also 2 Cord 218, is conclusive as to the second ground. It is there laid, down that a note in which the words “ value received” were not inserted did not support a count in which, as apart of the description of it, those words were inserted; and the variance was held fatal. In declaring on contracts not under seal, which do not contain within themselves the acknowledgement of a consideration, or from which a com sideration is not implied-by law, itis incumbenton the plain-**199Jiff to set out and prove a consideration. But the application of it to this case is not deemed neeessary, as the case must go off on the other grounds.

The motion for a nonsuit is granted

Boylston for the motion.

¿Qfarke, contra,