Assumpsit. The declaration contained only the general counts, for money lent, &e., money laid out, &c., and money had and received. At the trial before Grouse, J., in Abbeville District, the plaintiff gave in evidence the delivery of a quantity of cotton at the defendant’s machine by the plaintiff; also an agreement on the part of the defendant to gin the same at a tenth for toll; and of a breach of this special undertaking by a deficiency of the quantity of cotton ginned, &c. ; the bad condition of the cotton after it was packed, &c. The counsel for the defendant objected to this evidence as inapplicable to the case stated in the declaration; and claimed a nonsuit, which was accordingly ordered. The motion in this court was to set aside the nonsuit, and grant a new trial.

After hearing Bowie for the motion, and Lesley, contra, Bke-vard, J., delivered the opinion of the court, all the judges present. The court are of opinion, that the nonsuit ordered in this case ought not to be set ¿side. To have entitled the plaintiff to give the special agreement in evidence, and all the special circumstances upon which he founds his claim to recover, a special count in the declaration was necessary, which ought to have set forth truly and substantially the agreement, and all the special circumstances intended to be given in evidence. This was necessary in order to apprise the defendant of the ground of the plaintiff’s demand, and to afford him an opportunity of preparing his proofs to resist the same. If this had been done, and the plaintiff had failed at the trial to prove the special count as laid, still he might have recovered on one of the general counts in indebitatus assumpsit, if there had .been no special agreement proved; provided the evidence would support any of the general counts. See 10 Johns, rep. N. Y. 36, Liningdale v. Livingston. 4 Bos. and Pull. 355. 6 D. and E. 322. But in this case, as there was no special count laid, the evidence given did not apply ; and the plaintiff ought not to have been allowed to recover on them ; for the defendant might have been, and in all probability was, surprised at the trial by evidence which he was not prepared to encounter. Therefore on the ground of sur1 prise, the District Court did right to order the nonsuit.

Motion discharged.