¶1delivered the opinion of the Court:
¶2We are obliged to reverse this judgment. Although the appellee would have been clearly entitled to his verdict under a declaration properly framed, yet we can not hold that money paid by him at appellant’s request, in discharge of the taxes of the latter, can be collected in an action for money had and received. It is true, there are cases such as the appellee’s counsel cites, in which it has been held that a promissory note is admissible in evidence, under a count for money had and received, the actual consideration of the note not appearing. In such cases, juries have sometimes been allowed to presume the note was given for money had and received. But we know of no case in which a recovery has been allowed under a count for money had and received, where the only proof of indebtedness has been, not that money or money’s worth has been received by the defendant for the use of the plaintiff, but that the plaintiff has paid money for the use of the defendant. This was the present case, and we are obliged to say, there was such a variance between the declaration and the evidence, that the objection to the latter should have been sustained.
¶3The appellee will have leave to amend Ms declaration.
¶4Judgment reversed.