consideration of the immorality and wickedness of the course of life, which had been so as aforesaid proposed to him, determined not to live or cohabit or have any intercourse with the Defendant; and having come to such determination he applied to her, and requested her to deliver up to him the said bond to be cancelled; with which request the Defendant refused to comply; and she brought an action upon the bond, and obtained a verdict.

The bill charged, that the Plaintiff never received from the Defendant or any other person any value or consideration whatever for the said bond or the grant of the said annuity, and was not indebted to the Defendant in any sum of money on any account whatever at the time of giving or executing the bond or at any other time; that such bond was required by the Defendant, and given and executed by the Plaintiff, in consideration of the Defendant's promising and agreeing with the Plaintiff to cohabit and live with him in such unlawful state, as aforesaid; and it was given and executed previous to any cohabitation or unlawful intercourse having taken place between the Plaintiff and Defendant, and as an inducement to such cohabitation and unlawful intercourse; and the Defendant insisted on having the said bond from * the Plaintiff, before [* 370] she would consent to cohabit and live with him; and the Plaintiff in agreeing to give and in the giving of such bond acted under the influence of an improper affection, and of which affection great and undue advantages were taken by the Defendant; and at the time the said bond was given and executed the Defendant had not nor hath since rendered to or performed for the Plaintiff any services whatever; and the said bond was given for the consideration and under the circumstances aforesaid and not otherwise.

The bill prayed a discovery as to all these matters; and that the Defendant may be decreed to deliver up the bond to be cancelled, and may be restrained from proceeding at law.

The Defendant demurred to the bill; and for demurrer thereunto saith, that the complainant hath not in and by his said bill shown any sufficient matter of equity to entitle him to the relief sought thereby.

Mr. Mansfield and Mr. Steele were proceeding to support the demurrer but the Lord CHANCELLOR desired to hear what could be said against it.

Attorney General [Sir John Scott] and Mr. Johnson for the Plaintiff. There is no doubt, that a bond may be given to a person, who has lived in this way with the obligor, as præmium pudoris, if there is no agreement for a continuation of that intercourse. It is a moral act; and this Court will not order it to be delivered up under those circumstances. The principles, upon which the Court acts, are stated in a variety of cases; which all go pointedly upon this distinction; that if there has been this sort of cohabitation, and the man chooses voluntarily to give a bond, without any reference to a continuation of that intercourse, it is undoubtedly good: more so, if he was the author of her ruin: but if, as this bill states, she has been a

person living in adultery with others, and she proposes to go and live with A. upon consideration of such a bond, the cases are all uniform, that this Court will order it to be delivered up: Marchioness of Annandale v. Harris, 1 Eq. Ca. Ab. 87. Clarke v. Periam, 2 Atk. 333. Robinson v. Gee, 1 Ves. 254. Priest v. Parrot, 2 Ves. 160. Walker v. Perkins, 3 Burr. 1568. Hill v. Spencer, Amb. 641. The Court proceeds upon grounds of public policy. [* 371] *There has been a verdict at law; and it may be objected, that this could have been pleaded, and there could have been no such verdict: but the jurisdiction of this Court is to have the bond delivered up. In fact, though it does not appear upon the bill, this was pleaded to the action: but it was found impossible to prove the case; and no defence was made beyond the plea. In Lord Rochford's Case Lord Thurlow said, that though it might have been pleaded at law, that did not take away the jurisdiction of this Court to order the instrument to be delivered up: as in the case of a bill of exchange (1), &c. This is a demurrer to the whole bill. It is a demurrer to the relief; which must now be admitted to be sufficient to cover the discovery (2): but there are many facts, which ought to be answered: as, whether the bond is in her possession; whether she pretends, that it was given for any pecuniary consideration, and what that was, &c.

Lord CHANCELLOR [LOUGHBOROUGH]. I have no doubt upon this case. The bill is filed after a verdict at law; and I am now informed, the Defendant put in a plea, upon which, if he had supported it, the consequence might perhaps have been, that the bond would have been void at law: no doubt it would, where it expresses in the consideration future cohabitation; which in one or two instances has come before the Court: in that case in the King's Bench and in a case in the Exchequer upon the administration of Mr. Perkins's assets after his death: the consideration was, that she should continue to live with him; and she forfeited it, if she returned to a proper course of life. In the present case, after a plea was put in and afterwards deserted, I can consider this bill as only for a discovery, and relief, founded upon the legal nullity of the bond, that it should be delivered up. Whatever might have been the course of the cases, where no plea was allowed but payment, nothing dehors the deed, the necessity for the interposition of this Court is entirely taken away, when all that matter, that would avoid the bond, might be pleaded at law. (3). The demurrer is very properly general: and

(1) Newman v. Milner, ante, vol. ii. 483; Jervis v. White, post, vii. 413. (2) Fry v. Penn, Price v. James, 2 Bro. C. C. 280, 319; Measter v. Brampston, cited 2 Bro. C. C. 282; Collis v. Swayne, 4 Bro. C. C. 480; ante, Loker v. Rolle, Ryves v. Ryves, 4, 343; Renison v. Ashley, vol. ii. 459, and the note, 461.

(3) Collins v. Blantern, 2 Wils. 341. But this doctrine, that the alteration of the rule of pleading takes away the equitable jurisdiction, is disapproved by Lord Eldon, C. post, vol. vii. 19; Coop. 20, in Bromley v. Holland; and in Hayward v. Dimsdale, xvii. 111, the jurisdiction to order a deed, forming a cloud upon the title, to be delivered up, though void at law, was maintained: Lord Eldon dissenting from the opinion of Lord Thurlow, Colman v. Sarrel, 3 Bro. C. C. 12, ante,

it covers the prayer for discovery. If it had been simply for discovery, and a demurrer had been put in, I should have allowed *the demurrer; for whatever may be the real transaction [372] between the parties, it is to be made out by evidence; and

the Plaintiff has no right to call upon her to discover that turpitude, which is common to him and to her. I cannot compel her to discover, whether before the connexion she capitulated with him for this provision. That would make her liable, not only to the reproach, but to the consequence of having lived in this illicit course of life (1).

There is no ground for the bill; and the demurrer must be allowed (2).

1. SEE, ante, note 1 to Colman v. Sarrell, 1 V. 50, that a Court of Equity will entertain a suit for the redelivery of a bond, or other instrument, in some cases where the instrument might be avoided at law.

2. As a general rule, a deed pro turpi causa cannot be supported in Equity; (see, however, Carey v. Stafford, 3 Swanst. 429 ;) nor if the consideration appear on the face of the deed, at common law. Gray v. Mathias, 5 Ves. 293. And, if a man has purchased an annuity in the name of a woman with whom he cohabits, with respect to his creditors, she will be considered only as a trustee. Mortimer v. Davies, cited 10 Ves. 363. But, except in behalf of creditors, property of which a woman has, upon such terms, obtained actual possession, will not, it seems, be taken out of her hands: though (even in favor of the grantor's representatives) she might be restrained from enforcing securities, founded on such immoral consideration. Rider v. Kidder, 10 Ves. 366; Whaley v. Norton, 1 Vern. 483. A fortiori, she could not obtain specific performance of a written promise, for which the only consideration was a previous adulterous intercourse. Matthews v. L-e, 1 Mad. 565. But, where a deed is executed, not as a bargain for future immorality, but as the premium pudicitia, Courts of Equity will lend their assistance to enforce the security. Knye v. Moore, 1 Sim. & Stu. 65; S. C. 2 Sim. & Stu. 260; Spicer v. Hayward, Prec. in Cha. 115; Cray v. Rooke, Ca. temp. Talb. 155; Marchioness of Annandale v. Harris, 2 P. Wms. 433. A bond, however, though given as the præmium pudicitiæ, cannot be proved as a debt, should the obligor become bankrupt. Gilham v. Locke, 9 Ves. 614; Ex parte Ward, cited 15 Ves. 290; Turner v. Vaughan, 2 Wils. 340. A provision, freely made, on account of past cohabitation, may be good, although the woman was of abandoned character before her connection with the settlor. Hill v. Spence, Ambl. 643; Atkins v. Farrer, 1 Atk. 287. Fraud, of course, on her part, would taint the transaction, and the circumstances must determine its validity. Whaley v. Norton, 1 Vern. 484; Bainham v. Manning, 2 Vern. 241; Clarke v. Periam, Ï Atk. 233.

vol. i. 50; and of Lord Loughborough in this case; and the Court of Exchequer, in Gray v. Matthias, post, v. 286.

(1) Ex parte Paxton, post, vol. xvi. 239. (2) Gray v. Matthias, post, vol. v. 286.

SEAGRAVE v. EDWARDS.

[1797, MAY 19.]

WHERE there is only one Defendant, after all the process of contempt for want of an answer the bill may be ordered to be taken pro confesso upon motion. (a)

THE bill was filed by residuary legatees against the surviving executrix for an account. An appearance was entered for the Defendant under the statute (1): but she stood out all process of contempt for want of an answer; and being brought up in custody, Mr. Cullen for the Plaintiff's moved, that the bill might be taken pro confesso.

The Solicitor General [Sir John Mitford] stated the practice to be, that where there is only one Defendant, the bill may be ordered to be taken pro confesso upon motion: but if there are more Defendants, the cause must be set down.

There being no other Defendant in this case, it was ordered, that the bill should be taken pro confesso.

1. FOR the general rules as to taking a bill pro confesso, see the notes to The Attorney General v. Young, 3 V. 209.

2. It should be observed that, although a cause must, according to the existing practice, (but for the alteration of which a bill is now (1827) pending in parliament,) be set down, before it can be taken pro confesso, where there are more defendants than one; yet, such cause may be advanced to the head of the paper, on motion; Hart v. Ashton, 1 Mad. 175; for it is in the discretion of the Court to direct any cause to be advanced, on sufficient allegation, and when that measure appears necessary in order to do complete justice. Hoyle v. Livesay, 1 Meriv. 382. Where there is only one defendant, the rule laid down in the principal case, of allowing the bill to be taken pro confesso on motion, was recognized in Lewis v. Marsh, 2 Sim. & Stu. 220.

BILL indorsed to a broker in consideration of money paid by him in effecting insurances; one of which was illegal: the acceptor becoming bankrupt, the petition of the indorsee to prove was dismissed as to what arose upon the illegal insurance; and, the bankrupty being some years ago, an inquiry was directed as to the rest. (b)

A. employed by B. to buy smuggled goods pays for them, and they come to the hands of B.: B. shall not pay for them, [p. 373.]

CHIPPENDALE employed Mather, a broker, to effect an insurance upon a voyage from Ostend to the East Indies, which was illegal ;

(a) When Bills shall be taken pro confesso, see, ante, p. 209, Attorney General v. Young; Carnes v. Fisher, 1 Johns. Ch. 8; Boudinot v. Symmes, Wallace, 139. (1) 5 Geo. II. c. 25.

(b) See Story, Bills, § 186.

and in consideration of the money laid out by Mather in effecting that insurance, and also a valid insurance for life, Chippendale indorsed to Mather a bill of exchange drawn by Chippendale and payable to his order. This bill was accepted by James, who afterwards in 1791 became a bankrupt. The, petition was presented by Mather, praying, that he might be admitted to prove under the commission.

Mr. Piggott and Mr. King, for the petition, insisted that the consideration was good as between the drawer and the indorsee; and there could be no objection, because between the drawer and some person not appearing on the bill there had been illegal transactions. They cited Faikney v. Reynous, 4 Burr. 2069, and Petrie v. Hannay, 3 Term Rep. B. R. 418. They contended, that at least the petitioner had a right to prove so much as related to the insurance for lives.

Attorney General [Sir John Scott] and Solicitor General [Sir John Mitford], for the Assignees. The question is, whether the policy of the law does not require, that Courts of Justice should not assist such transactions as this. The consideration being void is void as to all the parties to it. Lord Thurlow certainly disapproved those If this bill is to be paid, there is no law against such transactions. If the bill is bad at all, it must be bad altogether.

cases.

Lord CHANCELLOR [LOUGHBOROUGH]. I am perfectly aware of both the cases cited: but I cannot perfectly accede to them. What is called a consent in these cases is a confederacy to break a positive law. I have often had occasion to think of these cases upon lottery insurances, &c.; and it never occurred to me to be possible to state a distinction between them and a case repeatedly adjudged if a man is employed to buy smuggled goods; if he paid for the goods and the goods come to the hands of the person, who employed him, that person shall not pay for the goods. But as to the insurance for lives, he may divide the debt. The equity is, that where

the

consideration consists of two parts, one bad, the [374] other good, the bill should stand as to what is good.

For the Assignees. The bankruptcy happened in 1791; and they come in 1797. It does not appear, whether it was not a gambling policy.

Lord CHANCELLOR. Very possible. The only order I should have thought of making would have been to dismiss so much of the petition as arises upon the insurance as to the Ostend voyage, and to inquire into the transaction as to the insurance for lives.

It was so ordered (1).

SEE, ante, the notes to Brandon v. Johnson, 2 V. 517, with respect to demands arising out of illegal transactions.

(1) Vandyck v. Hewett, 1 East, 96. See post, Watts v. Brooks, 612, over-ruled as to the latter point: Thomson v. Thomson, vol. vii. 470; Knowles v. Houghton, xi. 168; Ex parte Bulmer, xiii. 313, 545; xv. 469; Ottley v. Browne, 1 Ball & Beat. 360.