« EelmineJätka »
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, O. J. observing, that the foundation of his opinion was, that the temptation to give this note was a 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 defendants' affairs, they all undertook and mutually contracted 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. See also Smith v. Cuff, 6 M. and S. 160.and post, money had and received, 6. So where A. having given B. a sum of money for goods in advancement of C.8, 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 it was agreed between the vendors and vendee of goods, that the vendee should pay 108. per ton, beyond the market price, which sum was to be applied in liquidation of an old debt due to one of the vendors, and the payment of the goods was guaranteed by a third person, to whom the bargain between the parties was not communicated, it was holdenh that this was a fraud, and rendered the guaranty void. So where a trust deed was proposed to the creditors of an insolventi, 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 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 plaintiffs 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 nonperformance of this agreement, it was holden to be a void g Jackson v. Duchaire, 3 T. R. 551. cognized by Lord Eldon, C. in Exp. h Pidcock v. Bishop, 3 B. & C. 605. Sadler and another, 15 Ves. 52. i Leicester v. Rose, 4 East, 372. re
agreement, on the ground that it was 'a fraud against the other creditors : and although, in this case, the stipulation by the plaintiffs 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 creditors to stipulate for either.
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 holdenk, 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 fúll 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', that the creditor might retain it, the agreement of composition not containing any express stipulation for giving up securities, and nothing, 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 68. 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
k Stock v. Mawson, 1 B. and P. 286. recognized in Nichols v. Norris, 3 | Thomas v. Courtnay, 1 B. and A. 1. B. & Ad. 42. n.
amount of her composition, although divers creditors had signed the deed, received their composition and released the defendant; it was holden 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.
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 causa 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 m, 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 the 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 plaintiff to the defendant P. But in an action to recover the amount of a bill delivered for washing done by the wife of the plaintiff 9, 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 re
Took v. l'uck, 4 Bingh. 224.
B. R, before Lord Kenyon, C. J. m Crisp v. Churchill, Č. B. E. 34 G. 3. 2 Dec. 1796. Per Eyre, C. J.
p Per Lawrence, J. 4 Esp. N. P. C. 97. n Girarday v. Richardson, 1 Esp. N. P. 9 Lloyd v. Johnson, 1 Bos. and Pul. C. 13. S. P. per Kenyon, C. J.
340. o Howard v. Hodges, Middx. Sittings,
cover 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. 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 owes its introduction into general use to the circumstance of the defendant not having been permitted in this form of action to wage his law. [But wager of law is now abolished : stat. 3 & 4 W. 4. c. 42. s. 13.] It may be considered as a general rule, that an indebitatus assumpsit will not lie in any case but where debt will lie". 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 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 errors, or in arrest of judgment after verdictt. 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 badu 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*; for the agistment y of cattle in the plaintiff's ground; for a premium z upon a policy of assurance upon such a ship; upon an account stated a (19); on a foreign judgment;b without
r Hard's case, Salk. 23.
u Mayor of Reading v. Clarke, 4 B.
and A. 268.
Hibbert v. Courthope, Carth. 276. y Gardiner v. Bellingham, Hob. 5. z Fowk v. Pinsacke, 2 Lev. 153.
Homes v, Savil, Cro. Car. 116. b 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. and C. 411. S. P. See Guinness v. Carroll, I B. and Ad. 459.
(19) 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, 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. & 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. “ I think Knowles v. Michel is an authority to shew, 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 Ld. Ellenborough, C. J. in Highmore v. Primrose, 5 M. and 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. and S. 67. Priddy v. Henbrey, 1 B. and C. 674. Clayton v. Gosling, 5 B. and 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. and C. 623. In an action by payee against acceptor of a bill of exchange, drawn by a third persun, 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