that the rule shall not be altered, although I am unable to perceive the reasons upon which it is founded.

The second point raised by the demurrer is whether debt will be on this instrument, which is as follows:-"On the first day of January, 1829, I promise to pay Edward Mitchell the sum of eight hundred and thirty-three dollars, payable in cotton at nine cents, with the benefit of the rise at the time, to myself, which cotton shall, on that day, be delivered at Vicksburg, to him or his agent, in good order, and shall class with prime cotton, which if not punctually paid, I bind myself to pay legal interest of the State on the amount from the date hereof. Given under my hand this 29th day of December, 1827.

(Signed)

WYLIE BOHANNON.

(Seal.) The draft promises to pay $833, payable in cotton, and stipulates the price and quality of the cotton, and place of delivery. If the contract had stopped here, I have no doubt but this would be the proper and fair interpretation of the contract-i. e., the draft promised to deliver so much cot ton as would amount to the sum of $833, at the time and place mentioned. He would have been bound to pay in cotton, and the sum mentioned in the note would only serve to ascertain the quantity of cotton which might be more or less, as the price might be higher or lower. The defendant would not have been discharged by tender of the money-for the promisee might insist on the cotton. But the stipulation for the payment of the interest from date, (a circumstance overlooked by counsel) appears to alter the effect of this contract. He has stipulated the damages: in the event of non delivery of the cotton, he is to pay legal interest from date of note. It appears the defendant has reserved to himself the privilege of delivering the cotton, or of paying the principle and interest. Could the plaintiff, on de. fendant's failing to deliver the cotton, have refused the principle and inte. rest? That is what he was entitled to demand, on defendant's failing in de livery of cotton-and debt will lie for the recovery. I consider this circumstance as varying the case from those cited by defendant's counsel, in 1 Bibb, 487--2 Bibb 584--Hardin 118: which cases were determined on the ground that the defendants (the promisors) were bound to deliver the property, and that an offer of the amount in money would not have discharged them: Therefore, these were considered as contracts for the deli

very of property-not for the payment of money; and debt cannot be maintained in such cases.

The judgment must be reversed, because the court below erred in overruling so much of the demurrer as objected to this instrument as a specialty. The demurrer to plaintiffs declaration sustained; but being of opinion that debt may be maintained on this writing, the cause will be remanded with leave to amend.

Judge Nicholson concurred.

RICHARDSON vs. ONEAL.

Although the plaintiff may waive a special contract in his declaration and give it in evidence under the common counts; yet he cannot prove materials furnished under an account for work and labor done.

BRIEF OF J. HENDERSON, ESQ.

It is not questioned by the appellant, but the authorities are somewhat multiplied, going to show that, where there has been a special agreement, the terms of which have been exeuted by the party who seeks its enforcement, should he fail to prove the special contract, as declared on, he may recover on the common counts, if the evidence offered is adapted to sustain them--"supposing there had been no special contract" on the subject.

Yet, were this question res integra, or if not concluded by the decision of this court formerly made, I should insist that a party could not desert his special contract under any circumstances; see 18 J. R., 456; 13 do., 94 to 97; 1 Bibb, 172; 1 Tyler, 182; 12 J. R., 275; 14 do., 326; 2 Term Rep., 104.

But the question now before the court is not whether a party shall be bound to rely upon his special contract, exclusively for recovery, but,— Firstly: Whether he shall not declare on his special count?

Secondly: How far proof of a special contract shall be applied to support the common counts? and

Thirdly: Whether or not proof of the special contract in this case that "plaintiff should build defendant a gin, and find all the materials, and defendant should board all plaintff's hands, while building the gin, and pay him in addition therefor, $350, is pertinent proof, under the common counts for work and labor in building a gin, without any count or charge in the same, for any materials furnished, whatever?

The reason indicated by the first point is obvious to all, and constitutes two of the first principles in pleading, viz. that the party called into court shall be advised by the plaint, as to what he is required to answer, and defend himself: and, also, that the record and proceedings shall be sufficiently explicit in exhibiting the subject of controversy, as to furnish evidence in bar to any subsequent action, for the same cause in point of fact; 10J. R.; Doug. 24; 4 Bos. & Pul., 351; 2 Mumf., 345; 1 Bibb, 595; 5 Mass., 391; 4 Cr., 239; 4 East, 148 9; 3 Bos. & Pul., 584.

The fact, too, is of no little weight that this form of declaring, (i. e. of setting forth the special contract) has been usual, where the question of recovering on the common counts has arisen; see 10 J. R., 37; 7 do., 133; 13 do., 96-7; 12 do., 274, 14 do., 326; 18 do., 451; 5 Mass., 393; 4 and 6 East.

Second point we think sustained by the cases quoted, which require the proof to be such that, if there had been no special count, it would have been adjudged sufficient, and applicable to the common counts. Does proof of this special contract resemble the counts in this narration? See 2 Stark. Ev., 95 and 96; and note of cases before cited.

OPINION OF THE COURT-BY THE HON. J. BLACK.

With respect to the objection that the defendant had promised to pay a specific price, for the making and building a gin head, there is no doubt that, after the performance of a contract, the plaintiff is not compelled to declare on the special contract, but may rely on the general counts, when a recovery might be had, without the aid of the special count; and the sum specially agreed on may be given in evidence to fix the quantum of damages; 10 John., 36.

But, if a plaintiff elects to proceed on the general counts, they must be uch as will suit the nature of his demand: he cannot, under a count for

work and labor, recover money paid, laid out and expended, and so vice

versa.

The plaintiff, in this case, under the counts for work and labor, proved materials furnished in building the gin head. If he wished to give in evidence the materials furnished, he should have inserted a suitable count in his declaration. Materials furnished cannot be given in evidence under the count for work and labor. There having been a special contract between plaintiff and defendant, by which he was to pay defendant $350 for building a gin head, makes no difference.

If the plaintiff had thought proper to declare on the special contract, he might have done so; but plaintiff waiving the special agreement, and going on the consideration, should show a demand, suitable to the nature of the declaration. The court erred in permitting the defendant to give any evidence of materials furnished, under the count for work and labor. An objection was urged on the argument, on the ground that there is no item in the account filed, charging the materials, but determining the case on general principles, independent of the statute, it is not necessary to say whether the general charge "to one gia head," is sufficient or not.

ARNETT vs. EVANS' ADMINISTRATORS.

Although a special contract existed, and is proved, yet the plaintiff may recover solely on the common

counts.

BRIEF OF MR. HOWARD.

1. The defendant had not a right, by law, to examine the witness, Stampley, in chief, when sworn upon his voir dire.

2. If there had been a special contract, which had been performed, and Arnett became, by law, entitled to a certain part of the cotton, or the money for which the same sold, he could recover, therefore on the common counts; see American precedents, Anthon's edition of 1821, pages 42 and 43.; see also 2 Phillips' Evidence, page 83, note a.; 3 Starkie's Evi

dence, page 1762; see 1 Chitty's Pleadings, edition of 1825, page 344 &

seq.

3. Though the contract were made by loans with Arnett and Stampley, yet, as Evans had settled with Stampley for his interest in the contract, and had discharged him therefrom, and, inasmuch as Arnett, by the act of Evans, had become the only person interested, he had a right to sue alone for his share; see 1 Chitty, page 7; 1 Esp. ni. pri., 117, Garrett vs. Taylor; see 7 J. R., 279, and Austin vs. Welch, 2 Mass., 401; 8 Cranch, page 50.

4. It is a sufficient ground of error, if the verdict does not respond to the issues.

5. It is also a good cause for reversing a judgment, if the judge improperly refuse to grant a new trial; see statutes of Mississippi.

OPINION OF THE COURT-BY CHIEF JUSTICE TURNER. Declaration contains the common counts in assumpsit; pleas upon assumpsit and payment and issues.

Plaintiff offered a witness, sworn on voire dire, and court allowed defendant's attorney to ask questions on the merits. Plaintiff objected to this, and excepted on being over-ruled-but court admitted witness.

Plaintiff's witness, Wm. Stampley stated—

That Evans let his plantation and ten hands to Arnet & Stampley, for the consideration of 30 bales cotton of 400 lbs. each.

Evans had borrowed 7 bales of cotton of Arnett, and agreed that they should pay part of the rent. Arnett put in two more hands, purchased provisions, &c.; and during the lease, four of Evan's slaves thus hired were levied on, and taken away, and lessees went on with the others. about 7; some ran away. Evans further agreed to take a proportionate share, according to the hands furnished. Stampley quit in July, and settled with Evans for his interest in the premises.

The crop amounted to 16 bales, and Evans took it all except the toll for ginning.

The plaintiff's counsel needlessly called for an opinion from the court, and the jury disregarded it, and went into the merits.

Defendant, by his plea and account filed vs. Arnett's alne, admits the right of plaintiff solely.