furniture and fixtures was accordingly made, described generally as "An inventory of the fixtures," &c., with the gross amount placed at the foot thereof; it was held that the defendant, having taken possession of the furniture and fixtures, and paid part of the amount of the valuation, was liable on an account stated for the remainder, and could not object to the plaintiff's defective title to the house (i).

A collector, or renter of turnpike tolls, though irregularly appointed, may recover, upon an account stated, the amount of tolls for which he has credited the defendant, on his passing through the gate; no objection being made to the plaintiff's title by the trustees or creditors of the turnpike. And the fact of the plaintiff having sent to the defendant an account of the tolls due, who, not long after, sent 57. inclosed in a letter to the plaintiff, in which he stated that he should have the remainder next week, is evidence of such an account stated, and a recognition of the plaintiff's title to be accounted with for the tolls (h).

The statement of an account seems not to be conclusive, but only presumptive evidence against the party admitting the balance to be against him (1). He would be allowed to show a gross error or mistake in the account if he could adduce clear evidence to that effect (m). And where a debtor furnishes a debtor and creditor account admitting a balance against himself, the creditor may show that one of the items for which the debtor has taken credit is founded in illegality, and is not bound by both sides of the account as furnished to him (n). Where, however, an account has been actually settled by payment, it cannot, in the absence of fraud, be opened so as to entitle the payer to recover back the sums paid by him (0). So it has been held at Nisi Prius that where an account for goods sold is settled, and the party gives a bill of exchange for the amount, but which bill is not paid, on an action brought, the party cannot go into evidence to impeach the charges in the first account which has been set

42.

(i) Salmon v. Watson, 4 Moore, 73. (k) Peacock v. Harris, 10 East, 104. (1) See Trueman v. Hurst, 1 T. R.

When otherwise, between paymaster and military officer; Skyring v. Greenwood, 4 B. & C. 281; 6 D. & R. 401, S. C. Even a receipt is not conclusive evidence; Graves v. Key, 3 B. & Ad. 313. See the rule in equity, Harris v. Spurling, 1 R. & Myl. 64.

(m) Mistake in agent's account as to money received, &c., see ante, 605, 624, 630.

(n) Rose v. Savory, 2 Bing. N. C. 145; 2 Scott, 199, S. C.; sed vide Roper v. Holland, 3 Ad. & E. 99; 4 Nev. & M. 668.

(0) Lawes v. Eastmure, 8 C. & P. 205.

tled (p): and that where parties, having cross demands, settle and balance their accounts, though part of the plaintiff's demand could not have been recovered by action, the settlement of the accounts shall bind the defendant, so that he cannot set up that defence when sued for the balance (q). ›

66

Where the particulars of the plaintiff's demand were on an account stated, as appears by a memorandum under the defendant's hand of this date," and the memorandum was inadmissible for want of a promissory note stamp; it was held, that the account stated might be proved by other evidence than the memorandum. It was also decided that verbal evidence might be received to show an admission that the money was due, and a promise to pay it by instalments, though such admission and promise were made at the time of signing the memorandum, and were embodied in it (r).

An I. O. U. (s), or a mere acknowledgment of the correctness of an account (t), does not require a stamp; and the production of an 1.O. U. by the plaintiff, though not addressed to him, is prima facie evidence of an account stated with him (u).

CHAPTER IV.

OF ILLEGAL CONTRACTS.

IN GENERAL.

SECTION I-Of Contracts illegal at Common Law.
SECTION II-Of Contracts rendered unlawful by Statute.

IN GENERAL.

THE Common law maxim is, ex turpi contractu non oritur actio. The common law prohibits every thing which is unjust, or contra bonos mores (a): and the test, whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case (b). The object of all laws is to repress vice, and promote the general welfare of the state and of society; and an individual shall not be assisted by the law in enforcing a demand originating in a breach or violation on his part of its principles or enactments.

In general, agreements legally formed have the force of laws over those who are the makers of them (c). Modus et conventio vincunt legem. But this rule does not apply where the interests of the public or of morality are affected by the contract, and may be injured by the observance of its provisions.

There is this peculiarity in regard to a contract founded upon an illegal consideration-that although in general parol evidence cannot, as between the parties to a written instrument, contradict or add to its provisions (d), yet it shall be received to show that

(a) Allen v. Rescous, 2 Lev. 174; Fletcher v. Harcot, Hutton, 56; Holman v. Johnson, Cowp. 343; Lewis v. Davidson, 4 M. & W. 657.

(b) Simpson v. Bloss, 7 Taunt. 246; 2 Marsh. 542, S. C. Per Tindal, C. J. Dobree v. Napier, 2 Bing. N. C

UU

796; 3 Scott, 201, S. C. Per Lord Abinger, C. B., Pellecat v. Angell, 2 C., M. & R. 313.

(c) French Code Civil, book 3, tit. 3, ch. 3, s. 1.

(d) Ante, 99, 112.

the instrument is void on account of the invalidity of the consideration, however formal and regular the document, whether by parol or under seal, may appear to be (e). The principle was ably explained by Wilmot, C. J. in Collins v. Blantern (ƒ). A bond in the usual form for payment of money was alleged to have been given as an indemnity for a note entered into by the obligee for compounding a prosecution for perjury. In support of the bond, it was contended that no averment should be admitted of its being given upon an illegal consideration not ap pearing on the face of it. The court decided against the bond. In the course of his judgment the Chief Justice used the following expressions:-" The manner of the transaction was to gild and conceal the truth; and whenever courts of law see such attempts made to conceal wicked deeds, they will brush away the cobweb varnish, and show the transactions in their true light. This is a contract to tempt a man to transgress the law; to do that which is injurious to the community: it is void by the common law, and the reason why the common law says such contracts are void is for the public good: you shall not stipulate for iniquity. All writers upon our law agree in this; no polluted hand shall touch the pure fountain of justice."

And though in general a written agreement cannot be read in evidence unstamped, where a stamp is requisite, yet there is an exception where such agreement is produced for the purpose of shewing the illegality of the transaction, and not for the purpose of enforcing the agreement (g).

The benefit of the public, not the advantage of the defendant, is the principle upon which a contract is allowed to be impeached in respect of illegal consideration. "The objection," says Lord Mansfield (h), "that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles

(e) Ante, 113; Gas Light and Coke Company v. Turner, 7 Scott, 779; 5 Bing. N. C. 675.

(f) 2 Wils. 347, recognized in Prole v. Wiggins, 3 Bing. N. C. 230 ; 3 Scott, 601, S. C.; post, 679; and see Rex v. Barmston, 3 Nev. & P. 167. (g) Coppock v. Bower, 4 M. & W.

361.

(h) Holman v. Johnson, Cowp. 343; and see per Lord Loughborough, Parsons v. Thompson, 1 H. Bla. 322. Upon the same principle a party even to a negotiable instrument may impeach it for want of a stamp, &c., and may call a party thereto as a witness in support of the objection; Jordaine v. Lashbrooke, 7 T. Ř. 601.

of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this, ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appear to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis."

But the presumption of law is in favour of a contract. We have already seen that if reasonably susceptible of two meanings -one legal, the other invalid-that interpretation shall be put upon the agreement which will support and give it operation (i). Illegality of consideration shall not be inferred. It is for the party who takes the objection to prove it clearly: although it be thereby thrown upon him to establish a negative. Therefore, where a plaintiff declared that the defendant, who had chartered his ship, put on board a dangerous commodity, (by which a loss happened,) without due notice to the captain or other person employed in the navigation, it was held that it lay upon him to prove such negative averment (k). For it was not to be presumed that the defendant had been guilty of an omission, which would amount to a criminal neglect of duty. So where in case against a carrier for the loss of goods delivered to him at Dublin to be conveyed to Liverpool, it was objected for the defendant, that unless the goods were proved to be duly entered at the customhouse, the importation was illegal, and the contract with the

(i) Ante, 80; Lewis v. Davidson, 4 M. & W. 654.

(k) Williams v. East India Company, 3 East, 192. See per Lord Ellenborough, Rex v. The Inhabitants of Haslingfield, 2 M. & Sel. 561. See another instance, Gale v. Leckie, 2 Stark. R. 107; Bennett v. Clough, 1 B. & Ald. 461, where the Court said,

illegality is never presumed; on the contrary, every thing must be presumed to have been legally done until the contrary appear." If a party refuse to produce an instrument on notice, it will be presumed that it was stamped; Crisp v. Anderson, 1 Stark. R. 35; 2 Stark. Ev. 80.