The presiding judge rightly refused to require the plaintiff to elect upon which count he would proceed to trial; for if the plaintiff should prove such facts as to establish a valid claim, no technical distinction between actions of contract and actions of tort ought to defeat his right to a judgment. Our statute authorizing the joinder of counts in these two forms of action, for one and the same cause, was designed to prevent technical matters of pleading from being used to defeat the effds of substantial justice, as they had done in many cases *485under the system of special pleading. No wrong is done to a defendant by permitting the plaintiff to state his case in such varied forms as to enable him to recover upon the facts set forth by virtue of any principle of law that is applicable to them. The proper office of a declaration is to inform him and the court what facts the plaintiff relies upon, and in such definite form that an issue to the jury can be framed upon it.
The jury were also properly instructed that the plaintiff might recover upon the count for money had and received. The defendant’s services in the matter were very slight, and he told the plaintiff he was to receive only five dollars for them. The plaintiff was to have the same bounty that was paid to others by the town of Deerfield, and the smallest sum paid by the town for bounties was one hundred and seventy-five dollars. The defendant received one hundred and ninety dollars for the plaintiff’s enlistment, and, under the circumstances appearing in the bill of exceptions, his attempt to hold all but thirty dollars to his own use is grossly unreasonable and fraudulent. The plaintiff can recover the balance on the ground that in equity and good conscience the defendant ought to pay it to him. Lamb v. Clark, 5 Pick. 193. Baker v. Corey, 19 Pick. 496.
Exceptions overruled,