delivered the following opinion of the Court. Two objections have been made to a recovery : —

*3031. That the case made out will not enable Logan to recover on a count for money had and received.

2. If it could, Logan ought to have demanded his property, so as to have put an end to the contract.

And it is also insisted that, in all cases of cheats, an action upon the case for a deceit, and not an action of assumpsit for money had and received, is the proper remedy. The Court understands the law differently. Where one man obtains the money or property of another through fraud or mala jides, whereby the consideration fails altogether, the person defrauded can recover back his money, or the value of his property, under a count for money had and received. Without a special count in the same declaration the defendant might not know the nature of the complaint, nor how to defend himself; and, therefore, it is indisputably the duty of the Court to guard against surprise. When there is no special count the plaintiff cannot recover, on an objection by the defendant that he is not informed of the nature of the demand against him, and hence in England, without it, the courts require the plaintiff to give notice of the matters on which he means to rely, before the trial. In this case the special count renders such notice unnecessary.

1., It is further urged that where the consideration is property, and not money, a recovery cannot be had under this count; and in support of this rule, the counsel for the appellant rely upon 5 Bur. 2589.

The case in Douglass, 132, lays down the law differently. The consideration proved was a masquerade ticket; and the Court permitted a recovery on a presumption that the ticket had been converted into money. But it is alleged that the ticket, according to the usual course of business, was easily convertible into money; we cannot perceive that any difference can arise from different kinds of personal property ; money is the medium of commerce in all; and there is as much ground upon principle, to presume a conversion into money in one case as another. The general count for money had and received, when united with special ones giving notice, ought to be encouraged as tending to the easy and commodious attainment of justice. Add. Hep. 22 - 39 ; 1 Dougl. 138.

2. Where fraud has been practised in a contract, and the consideration fails, the plaintiff is not bound to demand the property given as the consideration, for the purpose of enabling him to support an action for money had and received ; nor in such cases is he bound to make a return of that which he received; because, in contemplation of law, it has no value.