Of immoral Agreements.-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 the 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 held, that the action was not maintainable (c). 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 ill 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 (d). On the same principle it was held, that an assumpsit would not lie to recover the value of prints of an immoral (or libellous) tendency, which had been sold by the plaintiff to the defendant (e). But in an action to recover the amount of a bill 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 nightcaps, which were worn by the persons who slept with the defendant; with all which circumstances the plaintiff was acquainted; it was held, that the use to which the defendant applied the linen could not affect the contract, and that the plaintiff was entitled to recover (f). 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 Chief Justice 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.

Past or future cohabitation is insufficient to support a promise (g). But an agreement by the reputed father of an illegitimate child to pay the mother an annuity if she will undertake the

(c) Crisp v. Churchill, C. B. E. 34 Geo. III. Per Eyre, C. J.; Acc. Girarday v. Richardson, 1 Esp. 13.

(d) Howard v. Hodges, Middlesex Sittings, B. R. 2 Dec. 1796; Jennings v.

Throgmorton, R. & M. 251.

(e) Per Lawrence, J., 4 Esp. 97.
(f) Lloyd v. Johnson, 1 B. & P. 340.
(g) Binnington v. Wallis, 4 B. & Ald.
650.

1

sole maintenance of the child, and not affiliate it on the father, is valid (h).

II. Of the General Indebitatus Assumpsit.

The rules laid down in the preceding pages 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; or whether, the nature of his case permitting it, he adopts the more general form of what are called the indebitatus

counts.

The distinction between the actions of assumpsit and debt so far as the indebitatus counts are concerned,-for debt lies in many cases where assumpsit does not,-was, previously to the 15 & 16 Vict. c. 76, one of form only, for it was held, that the former would not lie in any case but where the latter did. Hard's case, Salk. 23. The declaration in both cases recited, that the defendant was indebted to the plaintiff for goods bargained and sold, or sold and delivered, &c. (as the case might be), and in assumpsit proceeded to allege that the defendant, "in consideration of the premises, promised to pay," a promise which the law implied from the sale or delivery, &c. of the goods, and which it was not necessary to prove; whereas in debt it proceeded to state, that by the non-payment of the sum claimed, an action had accrued to the plaintiff to demand it from the defendant, omitting the statement of the promise. The above act, however (s. 49), directs that "the statement (in pleadings) of promises, which need not be proved as promises in indebitatus counts, &c. shall be omitted," and in schedule (B.), forms 1 to 14, gives some specimens of such counts in a form somewhat different from that previously used, the appropriate plea to which, by the provisions of the same schedule, is "never indebted."-By s. 91, it is enacted, that the forms in the schedule (B.) may be used, and they certainly should be (see Place v. Potts, 8 Exch. 705), so that all actions on the indebitatus counts are now both in form and substance actions of debt.

Of the Indebitatus Counts.-Forms of such counts will be found in the schedule (B.) to the 15 & 16 Vict. c. 76, forms 1 to 14, and it is enacted by s. 91, that," the forms contained in the schedule shall be sufficient, and those and the like forms may be used with such modifications as may be necessary to meet the facts of the case, but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity." Those of the indebitatus counts in most frequent use, viz. for work done and materials provided, goods bargained and sold, goods sold and delivered,

(h) Crowhurst v. Laverack, 8 Exch. 208.

money lent, money paid, money received, and, on an account stated, are called the common counts. Although the form of the indebitatus counts, as will be seen from the examples above given, is very concise, it is necessary that it should appear for what the defendant is indebted. A declaration merely stating that the defendant was indebted, &c., not stating for what, is bad in arrest of judgment (k), or judgment upon it would be reversed in error (1). It should appear, too, that the action is brought for a debt payable in præsenti; a declaration stating that the defendants were indebted to the plaintiffs for freight, omitting the words "for money payable," was held bad on general demurrer. Place v. Potts, 8 Exch. 25. It is sufficient, however, if the cause of action be stated quite generally, e. g. for the agistment of cattle on the plaintiff's ground (m); for a premium upon a policy of insurance upon such a ship (n); on a foreign judgment, without stating the cause of action on which the judgment proceeded (o). And it is not necessary to specify the particular items constituting the debt or demand (p). Their generality is limited by the particulars of demand which the plaintiff by rule 19 of Reg. Gen. (Hil. T. 1853) is to deliver with the declaration in every case, (except where the writ has been specially indorsed under the provisions of the 25th section of the Com. Law Proc. Act, 1852), a copy of which particulars must be annexed by plaintiff's attorney to the record at the time when it is entered with the proper officer. This annexation supersedes the necessity of proof of delivery at the trial (q), 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 (r); see post, tit. "Debt.”

In consequence of their conciseness, and the latitude of proof which they admit of at the trial, the indebitatus counts are generally used where applicable. They will not lie on a special agreement till the terms of it have been performed (s), but "whenever the terms of a special agreement have been performed, so as to leave a mere simple debt or duty between the parties" [where the duty consists in a money payment], "the plaintiff may give the circumstances in evidence, and recover under the indebitatus counts" (t).

A corporation aggregate may sue and be sued in the indebitatus counts on an executed parol contract (u), e. g. for goods sold and

(k) Foster v. Smith, Cro. Car. 31. See now 15 & 16 Vict. c. 76, s. 143.

(1) Woodford v. Deacon, Cro. Jac. 206. (m) Gardiner v. Bellingham, Hob. 5. (n) Fowk v. Pinsacke, 2 Lev. 153. (0) Plaistow v. Van Urem, Doug. 5, n. An Irish judgment since the Union, Harris v. Saunders, 4 B. & C. 411. See Guinness v. Carroll, 1 B. & Ad. 459; post, p. 72.

(p) Holmes v. Savill, Cro. Car. 116; Hibbert v. Courthorpe, Carth. 276.

(q) Macarthy v. Smith, 8 Bingh. 145.

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 (x), or in matters connected with, and necessary for, the business or trade for which they are incorporated (y). The appointment of an attorney to conduct important suits affecting the rights and property of the corporation cannot be considered a trifling matter; nor is it of such frequent occurrence, or of such immediate urgency, as to render it inconvenient to postpone it until the seal of the corporation can be affixed to the retainer (z). 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 (a); although it may, if they be the parties sued (b). In the case of The Fishmongers' Company v. Robertson, 5 M. & G. 131, 6 Scott's N. R. 56, where the contract was one which did not fall within any of the exceptions to the general rule requiring corporate contracts to be under the common seal, Tindal, C. J., delivering the judgment of the court, said, "whatever may be the consequences, where the agreement is entirely executory on the part of the corporation, yet, if the contract, instead of being executory, is executed on their part,-if the persons who are parties to the contract with the corporation have received the benefit of the consideration moving from the corporation, -in that case the other parties are bound by the contract, and liable to be sued thereon by the corporation. Even if the contract put in suit by the corporation had been, on their part, executory only, not executed, we feel little doubt but that their suing upon the contract would amount to an admission on record by them that such contract was duly entered into on their part so as to bind themselves; and that such admission on the record would estop them from setting up as an objection, in a cross action, that it was not sealed with their common seal” (c).

In addition to the causes of action already enumerated, it has been held, that the indebitatus counts will lie for a fee due from any person who accepts the honour of knighthood, to the gentlemen ushers and daily waiters to the king (d); for fees due to an usher of the black rod (e); for a reasonable and customary fine due to the heir of the lord from the copyholder, upon the death of the

(x) Mayor of Ludlow v. Charlton, 6 M. & W. 822.

(y) Henderson v. Australian Steam Navi. gation Company, 24 L. J., Q. B. 322; Smith v. Hull Glass Company, 11 C. B. 897; Australian Steam Navigation Company v. Marzetti, 11 Exch. 228.

(z) Arnold v. Mayor of Poole, 4 M. &

G. 896; 5 Scott's N. R. 777.

(a) Church v. The Imperial Gas Light and Coke Company, 6 A. & E. 846.

(b) Doe v. Taniere, 12 Q. B. 1013.
(c) Acc. Mayor of Sandwich v. The
Queen, 16 L. J., Q. B. 432.

(d) Duppa v. Gerrard, Carth. 95.
(e) Saunderson v. Brignall, Str. 747.

lord (e); for a fine upon an admittance to a copyhold (f); or customary tenement (g); for freight (h); for goods and chattels, e. g., fish due by custom in respect of the plaintiff's liability to keep up a capstan and rope for the purpose of hauling the boats on shore (i); for money due by the custom of London for scavage (k); for tolls (); for tolls of wheat (m); for stallage, by the owner of a market, and that without showing any contract in fact between him and the occupier of the stall (n); for petit customs due to a municipal corporation (o), e. g., weighage (p); for burial fees (q), if actually paid to a receiver, and the question is one of money had and received as between the rector and receiver; otherwise an action does not lie, the remedy being in the spiritual court (r); for a penalty due by the ordinances of a company for not serving the office of steward, according to a byelaw (s); and, lastly, on a foreign or colonial judgment (t), for costs (u).

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 would have produced the sum recovered in Jamaica currency according to the rate of exchange between Jamaica and England at the date of the judgment (v).

A foreign or colonial judgment is primâ facie evidence under these counts, and, it is now settled, conclusive upon the merits (w), (a fortiori, therefore, it would seem, upon the regularity of its own

(i) Earl of Falmouth v. Penrose, 6 B. & C. 385.

(k) City of London v. Gorry, 2 Lev. 174; 1 Vent. 298.

(1) Seward v. Baker, 1 T. R. 618; 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, 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, whether thorough or traverse, as well as the right of passage, be immemorial, it 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; Hill v. Smith, 4 Taunt. 520. 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 C. & J. 57.

(m) Mayor of Reading v. Clark, 4 B. & Ald. 268.

(n) Mayor of Newport v. Saunders, 3 B. & Ad. 411.

95.

(0) Mayor of Exeter v. Trimlet, 2 Wils.

(p) Com. of London v. Hunt, 3 Lev. 37. (q) Spry v. Emperor, 6 M. & W. 639. (r) Spry v. Gallop, 16 M. & W. 716. (s) Barber Surgeons v. Pelson, 2 Lev. 252.

(t) Walker v. Witter, Dougl. 1, and in

notis.

(u) Russell v. Smyth, 9 M. & W. 810. (v) Scott v. Bevan, 2 B. & Ad. 78. See Story's Conflict of Laws, s. 308, et seq.

(w) Bank of Australia v. Nias, 16 Q. B. 717.