amount of her composition, although divers creditors had signed the deed, received their composition and released the defendant; it was holden1 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 causá 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 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. Tuck, 4 Bingh. 224.

m Crisp v. Churchill, C. B. E. 34 G. 3.
Per Eyre, C. J.

n Girarday v. Richardson, 1 Esp. N. P.
C. 13. S. P. per Kenyon, C. J.
o Howard v. Hodges, Middx. Sittings,

B. R, before Lord Kenyon, C. J. 2 Dec. 1796.

p Per Lawrence, J. 4 Esp. N. P. C. 97. q Lloyd v. Johnson, 1 Bos. and Pul.

340.

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, Č. 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 judg ment after verdict t. 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

r Hard's case, Salk. 23.

s Cro Jac. 206, 207.

t Foster v. Smith, Cro. Car. 31.

u Mayor of Reading v. Clarke, 4 B.

and A. 268.

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 premium2 upon a policy of assurance upon such a ship; upon an account stated a (19); on a foreign judgment; b without

x Hibbert v. Courthope, Carth. 276.
y Gardiner v. Bellingham, Hob. 5.
z Fowk v. Pinsacke, 2 Lev. 153.
a 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, 1 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. S 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; dicers 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 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

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, 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 now, by R. G. H. T. 4 W. 4. several counts shall not be allowed unless a distinct subject matter of complaint is intended to be established in respect of each. See 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 W. 4. 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 proofd of delivery at the trial.

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 waiters to the kinge; for fees due to an usher of the black rodf; for a reasonable and customary fine due to the heir of the lord from the copyholder, upon the death of the lords; for freighth; for goods and chattels; for money due by the custom of London for scavagek; for tolls1 (21); for a penalty due by the ordinances

c Rables v. Sikes, B. R. M. 22 Car. 2.
d Macarthy v. Smith, 8 Bingh. 145.
e Duppa v. Gerard, Carth. 95.
f Sanderson v. Brignall, Str. 747.

g Shuttleworth v. Garrett, Carth. 90.
Holt, C. J. dissentient (20).

h 1 Ventr. 100.

i Earl of Falmouth v. Penrose, 6 B. and C. 385.

k City of London v. Goree, 2 Lev. 174. 1 Steward v. Baker, 1 T. R. 618.

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. and Ad. 889.

(20) 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.

(21) Assumpsit will lie for tolls; as for passing along a way. Such toll is either toll thorough, or toll traverse; which last is the payment of a sum of money for passing over the soil of another in a way not an highway. 2 Roll. Abr. 522, Rickards v. Bennett,

of a company for not serving the office of steward, according to a bye lawm; and, lastly, indebitatus assumpsit will lie on a foreign judgment".

In an action brought in England to recover the value of a given sum, Jamaica currency, upon a judgment obtained in that island; the value is that sum in sterling money which the currency would have produced according to the rate of exchange between Jamaica and England, at the date of the judgment. Per Cur. Tenterden, Č. J. hæsitante. Scott v. Bevan, 2 B. & Ad. 78. To render a foreign judgment void, on the ground that it is contrary to the law of the country where it was given, it must be shewn clearly and unequivocally to be so. Becquet v. Mac Carthy, 2 B. & Ad. 951.

The court will give the foreign judgments credit for the facts which they specifically allege; hence in an action on a foreign judgment obtained by default, stating that the defendant appeared by attorney, it is not necessary to prove that the attorney mentioned was properly constituted the attorney of defendant; or that the defendant was living within the jurisdiction of the foreign court. Molony v. Gibbons, 2 Campb. 502, Ellenborough, C. J.

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 n Crawford v. Whittal, Doug. 4. n. [1]. o Hard's case, Salk. 23.

m Barber Surgeons v. Pelson, 2 Lev. 252.

it

1 B. & C. 223. Toll thorough is a payment for passing along a highway, to support which some consideration must be proved, as repairing a road or bridge. The repair of some streets in a town is not a sufficient consideration to support the claim of toll thorough in all parts of the town. Brett v. Beales, 10 B. & C. 508. But if the taking of the toll, as well as the right of passage, be immemorial, may be presumed that the soil was originally granted to the public in consideration of the toll; and such original grant is a good consideration for the toll, although the soil and toll should have been severed and got into different hands. Lord Pelham v. Pickersgill, 1 T. R. 660. Trueman v. Walcham, 2 Wils. 296, confirmed by Hill v. Smith, 4 Taunt. 520, and recognized by Lord Tenterden, C. J. in Brett v. Beales, 10 B. & C. 510. Assumpsit may be maintained by the owner of a market for stallage, and that without shewing any contract in fact between him and the occupier of the stall. The Mayor, A. & B. of Newport v. Saunders, 3 B. & Ad. 411. A grant of a fair or market, with an express grant of toll, passes reasonable toll, though no amount of toll be specified. The Corporation of Stamford v. Pawlett, 1 Cro. & J. 57.