same light as illegal contracts, and consequently an action. cannot be maintained for the breach of them. The defendants", being indebted to the plaintiffs and other creditors, and being insolvent, assigned all their effects in trust to pay 11s. in the pound to their creditors, to which all the creditors consented, and signed the deed of trust, except the plaintiffs, who refused to sign and to take any composition, unless the defendants would give them a note for the remaining 9s. in the pound; the defendants accordingly gave a note to that amount, whereupon the plaintiffs signed the deed. It appeared, that if the plaintiff's had not signed, the rest of the creditors would not have signed the deed. An action having been brought on the note, a verdict was found for the defendants; on an application made to the court for a new trial, it was refused; Lord Kenyon C. J. observing, that the foundation of his opinion was, that the temptation to give this note was à fraud on the creditors who were parties to the contract, on which their debts were to be cancelled in consideration of receiving a composition. The note preceded the execution of the deed; all the creditors being assembled for the purpose of arranging the defendant's affairs, they all undertook and mutually coutracted with each other, that the defendants should be discharged from their debts after the execution of the deed. Then the plaintiffs, in fraud of that engagement, entered into a contract with the defendants, which prevented their being put into that situation, which was the inducement to the other creditors to sign the deed, and to relinquish a part of their demands. The same principle was established in Jackson v. Lomas, 4 T. R. 166. So where A. having given B. a sum of money for goods in advancement of C. a secret agreement, between B. and C. that C. should pay B. a further sum for the goods, was holden to be void, on the ground that it was a fraud upon A. So where a trust deed was proposed to the creditors of an insolvent, whereby they all engaged to accept payment of their debts by six instalments, the second, third, and fourth of which were to be guaranteed by collateral security, and the fifth and sixth were to remain on the single security of the insolvent; several of the creditors refused to sign, unless the plaintiffs did; in order to induce the plaintiffs to sign r Cockshott v. Bennett, 2 T. R. 763. recognized by Lord Ellenborough in Steinman v. Magnus, 11 East, 394. ■ Jackson v. Duchaire, 3 T. R. 551. t Leicester v. Rose, 4 East's R. 372. recognized by Lord Eldon C. iu exp. Sadler and anr. L. 1. H. Apr. 11-09. the deed, the defendant, at the instance of the insolvent, agreed that he (the defendant) would procure the plaintiffs a collateral security for the fifth and sixth instalments within a given time, whereupon the plaintitis signed the trust deed, and the other creditors, who had before refused, signed also, but without any knowledge of the agreement between the plaintiffs and defendant: an action having been brought for the non-performance of this agreement, it was holden to be a void agreement, on the ground that it was a fraud against the other creditors; and although, in this case, the stipulation by the plaintiff was for a further security, and not for more money, there was not any difference, in substance, whether a creditor stipulated for that, which he thought would produce him money more certainly, or for a larger sum than he had agreed to take in common with the other creditors; that it was equally a fraud upon the other credi tors to stipulate for either. 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", 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. So where an action was brought against the defendant for board and lodging, 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 hoiden, 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 plaintiff to the defendant. But in an action to recover the amount of a bill u Crisp v. Churchill, C. B. E. 34 G. 3. x Girarday v. Richardson, 1 Esp. N. B. R. before Lord Kenyon Ch. J. 2 z Per Lawrence J. Sittings Hil. 42 G. F delivered for washing done by the wife of the plaintiff*, 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 night-caps, 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 Camp. N. P. C. 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 shewn 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. 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 owes its introduction into general use to the circumstance of the defendant not being permitted in this form of action to wage his law (19). It may be considered as a general rule, that a Lloyd v. Johnson, 1 Bos. and Pul. 340. (19) See Slade's case, 4 Co. 91-95 b. and the judicious remarks of Professor Wooddeson, in the third volume of his Systematical View of the Laws of England, p. 168. n. c. án indebitatus assumpsit will not lie in any case, but where debt will lie (20). It is observable, however, that the remedy 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 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 or in arrest of judgment, after verdict. But it is not necessary in this form of action to state the particular items constituting the debt; it is suficient if the declaration state generally, that the defendant was indebted to the plaintiff for work and labour; for the agistment of cattle in the plaintiff's ground; for a premiums upon a po licy of assurance upon such a ship; upon an account stated (21); on a foreign judgment, without stating the cause of action on which the judgment proceeded; or for money had and received, without stating for what cause the money was had and received. The counts in indebitatus assumpsit for work and labour, goods sold and delivered, money lent and advanced, money paid, laid out, and expended, money had and received, and on an account stated, being in most frequent use, are called the general or common counts, and all or some of them are usually added to every special assumpsit, where the circumstances of the case require it; the advantage of which is this, that if the plaintiff fails in proving the special count, he may resort to evidence applicable to the common counts', unless the special contract remains open, still subsisting, and in force, in which case the plaintiff is precluded from recovering on the common counts". b Hard's case, Salk. 23. c Cro. Jac. 206, 207. d Foster v. Smith, Cro. Car. 31. e Hibbert v. Courthope, Carth. 276. f Gardiner v. Bellingham, Hob. 5. g Fowk v. Pinsacke, 2 Lev. 158. k Rables v. Sikes, B. R. M. 22 Car. 2. 23. (20) The authority of this rule was questioned by Lord Mansfield C. J. in Moses v. Macferlan, 2 Burr. 1008. (21) In an action of indebitatus assumpsit, upon an account stated, it is not necessary to prove the items of the account, but In addition to the causes of action already enumerated, it has been holden, that an indebitatus assumpsit will lie, for a fee due from any person who accepts the honour of knighthood, to the gentlemen ushers and daily waiter to the king; for fees due to an usher of the black rod; for a reasonable and customary fine due to the heir of the lord from a copyholder upon the death of the lord; for freight; for money due by the custom of London for scavage': for tolls; for a penalty due by the ordinances of a company for not serving the office of steward according to a bye-law; and, lastly, indebitatus assumpsit will lie on a foreign judgment". But an indebitatus assumpsit will not lie upon a bill of exchange by the payee against the acceptor, because the acceptance is only a collateral engagement to pay the debt of another, namely, the debt of the drawer; nor will it lie for a wager, because a real consideration is wanting, and debt will not lie for a wager. It will be proper to remark here that an indebitatus assumpsit will not lie on a special agreement until the terms of it are performed, but when that is done, it raises a duty, for which a general indebitatus assumpsit will lie. In cases of this kind, i. e. where the terms of the special agreement have been performed, if the plaintiff, having declared on the special agreement, and also on a general inde 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, 1 T. 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 G. 3. 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. (22) It was admitted by the court, in this case, that debt would lie for a fine upon an admittance to a copyhold. See also Whitfield v. Hunt, Doug. 727. n. [† 155.] where it was holden, that a general indebitatus assumpsit would lie by the lord against the tenant of a customary tenement for a fine due upon admission. |