1. The declaration is, in its legal effect, for money had and received to' the plaintiff’s use. It ¡proceeds on a rescisión or repudiation of the contract of subscription, for fraud. Get that contract out of the way, and there is no obstacle to recovering the money back. That the plaintiff may pray for more relief than he is entitled to, does not vitiate his declaration. There is no substantial variance of the declaration from the affidavit in attachment; nor do we think there is any tort alleged further than fraud in a contract is a tort. The object of alleging the fraud is to get rid of the contract of subscription, and to substitute therefor and get the benefit of an implied contract to refund the money. If the fraud, after discovery, has been condoned, or if any legal or equitable rights have attached in favor of creditors of the corporations, requiring the plaintiff to abide by his subscription, these are matters for plea or answer. They do not appear on the face of the declaration, and their truth, though suggested in the argument, cannot be assumed.
2. The declaration is sufficient, and it was proper to overrule the demurrer.
