The action for money, had and received, is go. verned by the most liberal equity, and neither party is allowed to entrap the other in form. The generality of the counts, in a de-duration, ought not to be turned into a surprise on the defendant. In the present case, however, there was no danger of surprise, and the defendant had all the notice the nature of the case required. The money was paid to him on a contract which was put an end to by the mutual agreement of the parties ; and that contract is not the foundation of this action, but merely the inducement to it. The case of Towers v. Wells runs quatuor pedibus with this. 1 D. and E. 133.

Motion discharged.