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15. An agreement between a debtor and his creditors that they will accept a composition in satisfaction of their respective debts, to be paid in a reasauable time, cannot be pleaded to an action brought by one of the creditors to recover his whole demand. Heathcote & others v. Crookshanks. 2 Term Rep. 24.

16. But if the debt had been ascertained by the agreement, and a fund provided, and all the creditors bound to forbear, seems that would have been a good plea. 2 Term Rep. 24. 17. So if the debtor has assigned over all his effects to a trustee in order to make an equal distribution among all his creditors, that would have been a good consideration in law for the promise. 2 Term Rep. 24. 18. Acceptance of a less cannot be a satisfaction in law of a greater sum then due: nor can it operate as an extinguishment of the original cause of action, though accompanied by a conditional promise to pay the residue when of ability. Fitch v. Sutton. 5 East, 230.

19. The creditors of a bankrupt enter

ed into a deed of composition to receive Ss. in the pound in full discharge of their debts, and agreed to release every thing beyond that 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 for the full amount, received his dividend of ss. in the pound on both debts, and then recovered the full value of some of the bills; held, that the bankrupt was entitled to recover the money so obtained on the bill in an action for money had and received. Stock v. Mawson. 1 Bos. & Pull. 286. 20. An agreement declared on to sell oats at so much per bushel, must be taken to mean the Winchester bushel, and will not be proved by evidence of an agreement to sell by some other bushel. Hockin v. Coolce. 4 Term Rep. 314.

21. A promise in writing directed to A., B., and C., (a house in trade,) to pay for goods to be furnished to D., does not extend to goods furnished to D. by B. and C. after A. had withdrawn from the partnership. Myers v. Edge. 7 Term Rep. 254. 22. If the abandonment of a contract be made the ground of an action, it is not competent to the plaintiff to show that a contract has existed and been abandoned, without proving a specific contract. 1 Bos. & Pull. 306.

23. A. being tenant to B., under a lease containing covenants, by which the former was bound to fetch 75 bushels of coals from Pool yearly, and deliver them at the mansionhouse of the latter, and also to supply him with as much good wheat as he should want in his family at 5s. per bushel, it was agreed between them that the lease should be surrendered up and a new one granted, omitting the above covenants. A new lease was accordingly executed, and at the same time an agreement was entered into, whereby A. agreed with B. that he would fetch and bring to the dweiling-house of B., his heirs and assigns, 75 bushels of coals yearly, for 12 years, (the term of the new lease,) and yearly supply B., his heirs and assigns, with as much good wheat as he should want in his family at 5s. per bushel. B. having parted with his reversion in the farm, and also quitted the mansion-house, in which he resided at. the time when the agreement was made; held, that he was not entitled to maintain an action against A. for refusing to deliver the wheat at the stipulated price; that the agreement being entire, must receive one uniform construction; and as it was clearly local in respect of the delivery of coals, it could not be deemed personal with respect to the wheat: Also, that no parol evidence could be admitted to explain the agreement, there being no latent ambi

guity. Pull. 565. 24. A. agrees by parol to sell an estate to B. on certain terms, provided B. will continue C. his tenant, not for one year only, but from year to year, (C. having just before been let into possession under a contract for the purchase of the estate, which he had failed to pay for in time, and had therefore forfeited his deposit;) and A. thereupon agreed to take C.'s forfeited deposit as part of the purchase-money: A. and B. afterwards reduce their agreement respecting the purchase into writing, in which no notice is taken of the stipulation concerning C.'s tenaney; yet held, that this stipulation, being collateral to the written agreement, was binding upon B.; and that the agreement operated as a tenancy for two years certain at least, though no rent was then mentioned, but was to be settled afterwards; and that the tenancy could not be put an end to at the end of the first year by six months previous notice to quit. Denn d. Jacklin v. Cartwright. 4 East, 29. 25. One, having entered into articles. of agreement for the purchase of certain premises, devised the same to a trustee to pay the rents, and profits to her three daughters (one of them being covert) and the survivor of them, for their lives, share and share alike: and, after their decease, in trust for all and every the child and children of her three daughters who should be living at the death of the survivor of them, as tenants in common but if all her daughters should die without leaving any issue, then, after the decease of the survivor, in trust for her grandson, in fee, who was her heir at law: the residue of her real and personal estate to her three daughters. Upon a bill filed by the grandson, in the lifetime of the surviving daughter, to restrain the tenant from cutting timber, &c. and after a conveyance of the premises to the uses of the

Coker v. Guy. 2 Bos. &

will; held that under the will and deeds of lease and release the three daughters took no legal estates, but that the releasee took an estate for the lives of the daughters: and that such of their children as should be living at the death of the survivor of the daughters would take estates in fee, as tenants in common. Robinson v. Grey and others. 9 East, 1. 26. Proof that the defendant agreed to sell his horse warranted sound to the plaintiff for 31l. 10s. and at the same time agreed that, if the plaintiff would take the horse at that value, he the defendant, would buy another horse of the plaintiff's brother for 14l. 14s. and that the difference only should be paid to the defendant, will support a count charging only, that in consideration that the plaintiff would buy of the defendant a horse for 31l. 10s. the defendant promised that it was sound; and that in fact the plaintiff did buy the horse for that price, and did pay to the defendant the said 31l. 10s. Hands v. Burton. 9 East, 349. 27. Where land had been conveyed in payment of a pre-existing debt, which was cancelled at the time of the conveyance, and it was agreed by deed that the land should be appraised, as soon as convenient, by three disinterested men, after the manner of land taken on execution; and if the appraised value of the land should be less than the debt cancelled, the grantor should pay the difference in six months from the date of the agreement. After the expiration of the six months, the grantee nominated an appraiser; and the grantor refusing, he was held liable to an action of debt for the penalty of the agreement. Eaton & al. v. Stane. 7 Mass. 312. 28. Where an action for money had and received was submitted, by a rule of the court, to referees, and in the rule the plaintiff agreed that he had no other demand on the defendant; the referees reported that the defendant still held sundry notes,

the proceeds of which, when collected, would belong to the plaintiff, and gave a list of them; such agreement is no bar to a future action for the said proceeds when collected. Boyd v. Davis. 7 Mass. 359. 29. One, in consideration of a dollar paid him, agreed by his deed not to run a stage on a certain road specified, under penalty of two hundred and ninety dollars: the agreement was held valid, and the penalty mentioned was considered as the damages liquidated by the parties. Pierce v. Fuller. 8 Mass. 223. 30. A. and B. entered into a written agreement, by which A. agreed to convey to B. 700 acres of land, to be appraised, in part payment for a farm, valued at 3,750 dollars, which B. agreed to sell to A., and it was covenanted that in case either party failed to fulfil the agreement, the party failing to perform, "should forfeit and pay to the party who should fulfil the agreement, the sum of 2,000 dollars and damages." It was held, that the 2,000 dollars was, according to the intention of the parties, as inferred from the whole agreement, to be considered as a penalty, and not as stipulated damages. Dannis v. Cummins, 3 Johns. Cas. 297.

31. C. and M. entered into an agree, ment by deed, in which M. admitted that he was responsible for 9,259 dollars, on account of S., and assigned certain property in payment; but M. was, nevertheless, to offer other terms of payment, in six months, which C. was to elect to receive or not, in fifteen days thereafter. At the expiration of six months, M. offered his note of 1,000 dollars, payable in four years. did not make any election, but sent the assignment back to M. who refused to receive it. In an action of assumpsit, brought by C. against M. for the 9,259 dollars, it was held, that by the agreement, the assignment of the property, was an extinguishment of the original contract;

C.

that the words of the agreement, as to the offer of other terms, did not import a condition, but constituted a separate covenant; and that M. having made an offer of other terms, within the limited time, and no election being made by C., M. was not liable on the covenant. Curson v. Monteiro. 2 Johns. Rep. 308. 32. Where an agreement relative to land, has existed for more than one hundred years, and uninterrupted possession under it, by one of the parties, his heirs and assigns, the opposite party is concluded from disputing the title, and the court will not listen to technical objections to the instrument, for want of apt words, proper parties, or form. Emans v. Turnbull. 2 Johns. Rep.

313.

33. In an action on a written agreement to give the plaintiff the refusal of a farm, &c. it was held, that it was necessary to prove a consideration for the promise, where the agreement is in writing, as well as where it is by parol. Burnet v. Bisco. 4 Johns. Rep. 235.

34. Where the defendant is in possession under the agreement of the plaintiff, the court will not grant a writ of restitution, though they reverse the judgment, under which the possession was obtained. 2 Dallas, 204, 5.

35. A parol agreement will not give

a title to lands; but the party may recover damages for a non performance. 4 Dallas, 152.

36. If a man agrees to do certain work,

and does it jointly with another, he is still entitled to recover upon the agreement, in his own name." Blakeney v. Evans. 2 Cranch, 185. 37. If A. agree, under seal, to do certain work for B. and does part, but is prevented by B. from finishing it according to contract; A. cannot maintain a quantum meruit against B. for the work actually performed, but must sue upon the sealed instrument. Young v. Preston. 4 Cranch, 239,

38. The promise to pay the debt of another must be in writing and cannot be explained by parol. Grant v. Naylor. 4 Cranch, 235.

II. Fraudulent, illegal, or void.

1. Government having contracted to furnish forage for a certain number of horses to be kept by a sutler, and the contractor for forage having agreed not to commute the forage for money, an agreement between the sutler and contractor for forage, that the latter shall allow the former a sum of money for each ration of forage allowed for the whole number of horses, and shall retain the forage, is void. Wallis v. Baldwin. 2 Douglas, 450.

2. Contracts not prohibited by poșitive law, nor adjudged illegal by precedent, may nevertheless be void as against principles. Cowper, 39. Articles and conveyances set aside for evident fraud and imposition. Baugh v. Price. 1 Wilson,

3.

320.

4. A contract with two sailors for the sale of their prize-money set aside on the foot of imposition and public inconvenience. Baldwin & Alder v. Rochford. 1 Wils. 229. 5. An agreement to pay a sum of money to the assignees of a bankrupt when his certificate shall be allowed, whereby a creditor is induced to sign, (although the money to be paid is for the benefit of all the creditors) is void under 5 Geo. 2, c. 30, § 11. Jones v. Barkley. 2 Douglas, 695. 6. Where a person comes to demand performance of an illegal contract he shall not be assisted; but where he comes in subversion of it, the law will relieve him, though particeps criminis. Walker v. Chapman. Lofft, 342. 7. Where the offence is paris gradus, the defendant has the better side; and whoever enters into an illegal contract, does it subject to all rights known or unknown at the time,

9.

which are against such contract. Clarke v. Johnson & Co. Lofft,

756.

An agreement in writing to put in good bail for a person arrested on mesne process, at the return of the writ, or surrender the body, or pay debt and costs, made by a third person with the bailiff of the sheriff, in consideration of his discharging the party arrested, is void by 23 H. 6, c. 9. Rogers v. Reeves. 1 Term Rep. 418.

But the undertaking of an attor ney for the appearance of a defendant is not within the statute, because it is given to the plaintiff in the action, and not to the sheriff. 1 Term Rep. 418.

10. Where goods are delivered under an agreement to take a specific parcel of copper money in payment, a delivery of such copper will be a good bar to an action for the value of the goods, though in fact it was counterfeit money. Alexander v. Owen. 1 Term Rep. 225.

11. An illegal contract if rescinded as to part must be rescinded as to the whole therefore if a plaintiff furnishes goods in consideration of counterfeit money to be paid him, and he afterwards refuses to take it, he cannot recover in an action the value of the goods delivered. 1 Term Rep. 226, 7.

12. Where money had been paid for insuring tickets in the lottery, the court of C. P. (dissent. Loughborough C. J.) held that it might be recovered back from the office-keep

13.

er.

All the court were of opinion that a contract declared by a statute to be illegal, was not made good by a subsequent repeal of the statute. Jaques v. Withy & al. 1 H. Black. 65.

Before a party can entitle himself by a civil action to relief from an usurious contract, he must tender all the money really advanced. Fitzroy v. Gwillim. 1 Term Rep.

153.

14. Where goods were pawned to a

broker for a certain sum, and usurious interest agreed to be paid thereupon, the pawner of the goods cannot maintain an action of trover for them in order to get rid of the usurious contract, without first tendering the money which had been actually advanced, and legal interest. 1 Term Rep. 153.

15. If A. agree to give B. a certain sum for goods, in advancement of C., any secret agreement between B. and C. that the latter shall pay a further sum, is void as a fraud on A. although the bill of sale is made to A. and B. cannot recover such further sum against C. Jackson v. Duchaire. 3 Term Rep. 551. 16. No action can be maintained for the breach of an agreement, to dance at the King's Theatre in the Haymarket, or at such other place as the plaintiff should appoint;" if it appear that no licence for that theatre was granted by the Lord Chamberlain, as required by stat. 10 G. 2, c. 28, and that the plaintiff did not request the defendant to dance at any other place which was licenced. Gallini v. Laborie. Term Rep. 242.

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17. An agreement entered into by a number of dyers, pressers, bleachers, &c. at a public meeting, that they would not receive any more goods to be dyed, &c. but on condition that they should respectively have a lien on those goods for their general balance, is good in law: and any one who after notice of it delivers goods to any of those persons must be taken to have assented to those terms; and consequently cannot demand goods so delivered to any such dyer, &c. without paying the balance of his general account. Kirleman and another, assignees of Walker, a bankrupt, v. Shawcross. 6 Term Rep. 14. 18. To debt on bond the defendant pleaded that the bond was given to secure payment of the prize of goods agreed to be sold and delivered in London by the plaintiff to the de

fendant, to be by the latter shipped to Ostend, and from thence re-shipped for the East Indies, and there trafficked with clandestinely. Heid a sufficient bar to the action; the case being within stat. 7 G. 1, c. 21, which avoids all contracts for supplying cargoes to foreign ships in such a trade. Lightfoot &al. v. Tenant. 1 Bos. & Pull. 551. 19. A., B., and C. became partners in insuring ships (contrary to the statute 6 G. 1, c. 18, s. 12) but it was agreed that the policies should be underwritten in the name of A. only; several policies were effected, and the premiums received by C. and D. who were partners as brok-/ ers; it was held that A. could not recover those premiums from C. and D. Booth v. Hodgson. Term Rep. 405.

20.

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Where on such a partnership A. had paid the whole of the losses, the court of C. P. held that he could not maintain an action against his partner to recover a share of the money so paid. Mitchell & al. v. Cockburne. 2 H. Black. 379. Aubert v. Maze. 2 Bos. & Pull. 371. 21. It being contrary to stat. 7 & 8 W. 3, c. 4, for a candidate to furnish provisions to any voters after the teste of the writ, an innkeeper cannot recover against a candidate for provisions so furnished at his request. Ribbans v. Crickett & al. 1 Bos. & Pull. 264.

22. A contract entered into by a practising attorney to relinquish his business and recommend his clients to two other attornies for a valuable consideration, and that he would not himself practice in such business within certain limits, and would permit them to make use of his name in their firm for a certain time, but without his interference, &c. was holden to be valid in law. Bunn, Executor of Bunn, v. Guy. 4 East, 190. (And see Davis v. Mason. 5 Term Rep. 118, BOND, V.) 23. A. being possessed of an office in a dock yard, B., in order to induce

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