position deed, by which the creditors of the defendant agreed to take the defendant's bills at long dates, for their respective debts, stipulated, without their knowledge, for a bill of exchange, to be indorsed to him by the defendant for a further sum, it was holden (a) that the whole agreement between the plaintiff and the defendant was void, as being fraudulent upon the other creditors, and the plaintiff could not recover upon the defendant's bills for the amount of the composition-money, although he had received nothing on the bill indorsed to him by the defendant.

The creditors of a bankrupt entered into a deed of composition to receive eight shillings in the pound in full discharge of their debts, and agreed to release every thing beyond that, and give up all securities to the bankrupt, and join in a petition to the chancellor, to supersede the commission; one of the creditors, having two distinct debts due from the bankrupt, for one of which he held bills to the full amount, received his dividend of eight shillings in the pound on both debts, and then received the full value of some of the bills; it was holden (b), that the bankrupt was entitled to sue for the money so obtained on the bills in an action for money had and received. The principle of the foregoing case was, that if the creditor had been suffered to retain in his possession the money which he had raised on the bills given by the bankrupt, he would have got more than eight shillings in the pound out of the bankrupt's effects by the amount of those bills which, under the agreement, the creditor was to restore and to give up to the bankrupt. But where the creditors of an insolvent agreed, by an instrument, (not under seal,) that they would accept in full satisfaction of their debts twelve shillings in the pound, payable by instalments, and would release him from all demands; and one of the creditors, who signed for the whole amount of his debt, held at the time, as a security for part, a bill of exchange drawn by the debtor and accepted by a third person; the money due on this bill having afterwards been paid by the acceptor, it was holden (c), that the creditor might retain it, the agreement of composition not containing any express stipulation for giving up securities, nor anything whence such a stipulation could be implied, and the effect of it not being to extinguish the original debt. And where defendant entered into a composition to pay his creditors 6s. 8d. in the pound, upon condition of being released, and nearly two years afterwards gave one of the creditors, who had agreed to sign the composition, a bond for the residue of her debt, she not having received the amount of her composition, although divers creditors had signed the deed, received their composition, and released the defendant; it was holden (d) that the bond was good: as it was not given or

agreed to be given at the time of the composition, it was not a fraud on the other creditors.

To assumpsit for the non-performance of a written agreement to take a furnished house, the defendant pleaded that the plaintiff caused and procured the defendant to enter into the agreement by means of fraud, covin, and misrepresentation of the plaintiff, and others in collusion with him: on which issue was joined. It appeared at the trial, that the plaintiff had employed an agent to let the house in question, and the defendant, being in treaty with the agent for taking it, asked him "If there was any objection to the house?" to which he answered that there was not: the defendant signed the agreement, but afterwards discovered that the adjoining house was a brothel, and on that ground declined to fulfil the contract. It was holden (e), that it was not sufficient to support the plea, that the representation turned out to be untrue, but that for that purpose it ought to have been proved to have been fraudulently made; that as the representation was not embodied in the contract, the contract could not be affected by it unless it were a fraudulent representation; and that the knowledge of the plaintiff of the existence of the nuisance, and the representation of the agent that it did not exist, were not enough to constitute fraud, so as to support the plea.

Immoral Agreements.-4thly. If the agreement be of such a nature, that the carrying it into effect, and enforcing it, will give a sanction and encouragement to immorality, an action cannot be maintained for the violation of it. This position is founded on the maxim, ex turpi causâ non oritur actio, or, in the elegant paraphrase of Lord Mansfield, justice must be drawn from pure fountains.

In an action for use and occupation of a lodging (ƒ), where it appeared that the lodging was let to the defendant for the purposes of prostitution, and with a knowledge on the part of the plaintiff of that fact, it was holden that the action was not maintainable (g). So where an action was brought against the defendant for board and lodging (h), and it appeared in evidence, that the defendant was a lady of easy virtue, that she had boarded and lodged with the plaintiff, who had kept a house of bad fame, and who, besides what she received for the board and lodging of the unfortunate women in her house, partook of the profits of their prostitution; Lord Kenyon, C. J., was of opinion, that such a demand could not be heard in a court of justice. On the same principle it was holden, that an assumpsit would not lie to recover the value of prints of an immoral or libellous tendency, which had been sold and delivered by the

(e) Cornfoot v. Fowke, 6 M. & W. 358. Lord Abinger, C. B., diss.

(f) Crisp v. Churchill, C. B. E. 34 Geo. III. Per Eyre, C. J.

(g) Girarday v. Richardson, 1 Esp. N.

P. C. 13, S. P. per Kenyon, C. J.

(h) Howard v. Hodges, Middx. Sittings, B. R. before Lord Kenyon, C. J., 2 Dec. 1796; Jennings v. Throgmorton, R. & Mo. N. P. C. 251, Abbott, C. J.

plaintiff to the defendant (i). But in an action to recover the amount of a bill delivered for washing done by the wife of the plaintiff (k), where it appeared in evidence, that the defendant was a prostitute, and that the articles washed consisted principally of expensive dresses, in which the defendant appeared at public places, and of gentlemen's nightcaps, which were worn by the persons who slept with the defendant; with all which circumstances the plaintiff was acquainted; it was holden, that the use to which the defendant applied the linen could not affect the contract, and that the plaintiff was entitled to recover. The same doctrine was laid down by Lord Ellenborough, in Bowry v. Bennet, 1 Campb. 348, where an action was brought against a prostitute to recover the value of some clothes which had been furnished by the plaintiff. The C. J. said, that the mere circumstance of the defendant being a prostitute, within the knowledge of the plaintiff, would not render the contract illegal. In order to defeat the action, it must be shown that the plaintiff expected to be paid out of the profits of the defendant's prostitution, and that he had sold her the clothes in order to carry it on. A similar distinction was taken by Lord Tenterden, C. J., in Appleton v. Campbell, 2 C. & P. 347.

II. Of the General Indebitatus Assumpsit.

HAVING premised that the rules laid down in the preceding section, govern the action of assumpsit in both its forms; that is, whether the plaintiff sets forth the agreement, for the breach of which he complains, specially, and declares, as it is technically termed, on a special assumpsit; or whether, the nature of his case permitting it, he adopts the general form of an indebitatus assumpsit; I shall proceed to an explanation of the latter form.

General Indebitatus Assumpsit.-The general indebitatus assumpsit is in the nature of an action of debt, and owed its introduction into general use to the circumstance of the defendant not having been permitted in this form of action to wage his law (1). It may be considered as a general rule, that an indebitatus assumpsit will not lie in any case but where debt will lie (m). The remedy, however, by action of debt is more extensive than the remedy by indebitatus assumpsit; for debt may be brought on a record or specialty, whereas the indebitatus assumpsit is confined to parol agreements. Hence, although the form of the general indebitatus assumpsit is very concise, yet it is essentially necessary

(i) Per Lawrence, J., 4 Esp. N. P. C. 97.

(k) Lloyd v. Johnson, 1 Bos. & Pul.

(1) Wager of law is now abolished, stat. 3 & 4 Will. IV. c. 42, s. 13. (m) Hard's case, Salk. 23.

to state in the declaration for what cause the debt or duty became due, in order that it may appear to the court to be matter whereon an assumpsit may be founded; and an omission in this respect may be taken advantage of by writ of error (n), or in arrest of judgment after verdict (o). A declaration merely stating that the defendant was indebted to the plaintiff in 500 quarts of wheat, as for tolls of wheat, without specifying any value, is bad (p) upon special demurrer. But it is not necessary, in this form of action, to state the particular items constituting the debt; it is sufficient if the declaration state generally, that the defendant was indebted to the plaintiff for work and labour (g); for the agistment (r) of cattle in the plaintiff's ground; for a premium (s) upon a policy of assurance upon such a ship; upon an account stated (1) (21); on a foreign

(n) Cro. Jac. 206, 207.

(0) Foster v. Smith, Cro. Car. 31.
(P) Mayor of Reading v. Clarke, 4 B.

& A. 268.

Hibbert v. Courthope, Carth. 276.
Gardiner v. Bellingham, Hob. 5.
Fowk v. Pinsack, 2 Lev. 153.
Homes v. Savill, Cro. Car. 116.

(21) In an action of indebitatus assumpsit, upon an account stated, it is not necessary to prove the items of the account, but only that an account was stated, for that is the cause of action. Agreed per Raymond, C. J., Page and Reynolds, J., in Bartlett v. Emery, IT. R. 42, n. The accounting being the ground of the promise, is traversable. Dalby v. Cooke, Cro. Jac. 234. On an account stated, the plaintiff is not obliged to prove the exact sum laid in the declaration. Thompson v. Spencer, B. R. E. 8 Geo. III.; Bull. N. P. 129. An acknowledgment by the defendant of a debt, due upon any account, is sufficient to enable the plaintiff to recover upon a count for an account stated. Knowles v. Michel, 13 East, 249. "I think Knowles v. Michel is an authority to show, that though in form a count upon an account stated is of and concerning divers sums of money,' yet proof of one item is good to maintain such a count; divers may be supported by evidence of one." Per Lord Ellenborough, C. J., in Highmore v. Primrose, 5 M. & S. 67. “ It has been held, that upon a count for goods sold and delivered, the plaintiff may prove the sale of one article, and that will be well enough. The same rule applies to this count, which is “ of and concerning divers sums,” as to the count for goods sold. Per Holroyd, J., S. C. Where a note is expressed to be for value received, that imports "received from the payee;" and is an acknowledgment of a debt from the maker to the payee. See Highmore v. Primrose, 5 M. & S. 67; Priddy v. Henbrey, 1 B. & C. 674 ; Clayton v. Gosling, 5 B. & C. 360. Where a party examined before commissioners of bankrupt admitted that he had received a sum of money on account of the bankrupt after an act of bankruptcy, but did not go on to admit that it was a subsisting debt; it was holden that this was not evidence sufficient to support a count on an account stated with the assignees. Tucker and another, Assignees of Hickman, v. Barrow, 7 B. & C. 623. In order to constitute an account stated, there must be a statement of some certain amount of money being due, which must be made either to the party himself or to some agent of his.

VOL. I.

F

Per

judgment (u); without stating the cause of action on which the judgment proceeded (22); or for money had and received (x); without stating for what cause the money was had and received. A corporation aggregate may sue and be sued (y) in indebitatus assumpsit on an executed parol contract; e.g. for goods sold and delivered; for they may contract without affixing the common seal, in cases where convenience, amounting almost to necessity, requires that they should do so; as in hiring inferior servants, or doing acts frequently recurring, or too insignificant to be worth the trouble of affixing the common seal. Per Denman, C. J., 6 A. & E. 861, cited in M. of Ludlow v. Charlton, 6 M. & W. 822. It makes no difference as to the right of a corporation to sue on a contract entered into by them without seal, whether the contract be executed or executory, or whether the promises be express or implied (2).

The counts in indebitatus assumpsit for work and labour, goods sold and delivered, money lent and advanced, money paid, money had and received, and on account stated, being in most frequent use, are called the general or common counts, and all or some of them were usually added to every special assumpsit; but see R. G. H. T. 4 Will. IV. limiting counts, post, tit. "Declaration." The generality of these counts is obviated by particulars of demand, which plaintiff, under the new rule (R.G.T.T. 1 Will. IV. No. 6,) is to deliver, a copy of which must be annexed by plaintiff's attorney to the record, at the time when it is entered with the judge's marshal. This annexation supersedes the necessity of proof (a) of delivery at the trial; and if the plaintiff gives credit in the particulars for any sum of money paid to him, it is not necessary for the defendant to plead payment of such sum (b).

(u) Plaistow v. Van Uxem, Cam. Scacc. Doug. 5, n. An Irish judgment since the Union, Vaughan v. Plunkett, 3 Taunt. 85, n.; Harris v. Saunders, 4 B. & C. 411, S. P. See Guinness v. Carroll, 1 B. & Ad. 459.

(x) Rables v. Sikes, B. R. M. 22 Car. II.

(y) Beverley v. The Lincoln Gas Light and Coke Company, 6 A. & E. 829.

(z) Church v. The Imperial Gas Light and Coke Company, 6 A. & E. 846. (a) Macarthy v. Smith, Bing. 145. (b) R. G. T. T. 1 Vic. post, "Plead""Payment."

ings,'

Parke, B., in Hughes v. Thorpe, 5 M. & W. 667. In an action by payee against acceptor of a bill of exchange, drawn by a third person, the defendant paid £10 into court on the money counts. Nothing more was due on the bill, and there had not been any other account or transaction between the plaintiff and defendant; it was holden, that the payment so made was an answer to the whole action, and that the plaintiff could not recover nominal damages on the special count on the bill. Early v. Bowman, 1 B. & Ad. 889.

(22) A judgment of one of the superior courts of Ireland, or of any other court than one of the superior courts of this country, is not conclusive against the defendant, if it appear that he was not duly served with process in the action. Ferguson v. Mahon, 3 P. & D. 143. / a

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