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. But in an action to recover the amount of a bill 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. Č. 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. m Crisp v. Churchill, C. B. E. 34 G. 3. n Girarday v. Richardson, 1 Esp. N. P. B. R. before Lord Kenyon, Ch. J. 2 Dec. 1796. p Per Lawrence, J. 4 Esp. N. P. C. 97. q Lloyd v. Johnson, 1 Bos. and Pul. 340. 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 use 42/13his law" (18), It may be considered as a general rule, لا an 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. A declaration merely stating that the defendant was indebted to the plaintiff in 500 quarts of wheat, for certain tolls of wheat, without specifying any value, is bad" 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 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. 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. (20) The authority of this rule was questioned by Lord Mansfield, C. J. in Moses v. Macferlan, 2 Burr. 1008. a to the plaintiff for work and labour; for the agistment of cattle in the plaintiff's ground; for a premium upon a policy 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 x Hibbert v. Courthope, Carth. 276. 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. c Rables v. Sikcs, B. R. M. 22 Car. 2. (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, 1T. 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. "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 Maule and Selwyn, 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. on 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. 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 kingf; 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 freight1; for goods and chattels; 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. Nor will indebitatus assumpsit lie for goods bargained, unless there has been a sale'; the property must be changed to make the action maintainable. d Payne v. Bacomb, Doug. 651. f Duppa v. Gerard, Carth. 95. (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. 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, [where the duty consists in a money payment.] 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 indebitatus assumpsit, fail in proving the special agreement, he may resort to the general count (23). In an action of indebitatus assumpsit for goods sold and delivered", it appeared that the goods in question had been valued at a certain sum, for which payment was to be made by the defendant in three months after the 15th of September, 1802, (the day on which the bargain was concluded) by a bill of two months. The action was commenced in Hilary Term, 1803, before the expiration of five months from the day on which the contract was made. The Court of King's ■ Gordon v. Martin, Fitz.-Gib. 303. u Mussen v. Price, 4 East's Rep. 147. t Leeds v. Burrows, 12 East, 3. upon (23) "If A. declare upon a special agreement, and likewise a quantum meruit, and at the trial prove a special agreement, but different from that which is laid in the declaration, he cannot recover on either count: not on the first, because of the variance; nor on the second, because there was a special agreement; but if he prove a special agreement and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit; for otherwise he would not be able to recover at all." Bull. N. P. 139. Str. 638. "I apprehend the rule to be this: where a party declares on a special contract, seeking to recover thereon, but fails in his right so to do altogether, he may recover on a general count, if the case be such, that, supposing there had been no special contract, he might still have recovered for money paid, or for work and labour done. As in the case of a plaintiff suing a defendant as having built a house for him according to agreement; there, if he fail to prove that he has built it according to agreement, he may still recover for his work and labour done." Per Sir J. Mansfield, delivering the opinion of the court in Cooke v. Munstone, 1 Bos, and Pul. N. R. 354. "If a man agrees to build for another a house to be paid for it, and afterwards builds the house, in this case he has two ways of declaring, either upon the original executory agreement, as to be performed in futuro, or upon an indebitatus assumpsit, or quantum meruit, when the house is actually built, and the agreement executed." Per Denison, J. Alcorn v. Westbrook, 1 Wils. 117. |