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THE KING

V.

D'EON.

N. B. On the 9th of July the defendant was tried, and, after proving the Duke of Nivernois's character and recall, M. D'Eon's station, character, and recall, and the Count de Guerchy's present character as embassador; that D'Eon set up a press in his own house, printed, published, and sold the books; and, upon reading to the jury the most exceptionable passage, *he was convicted on the information; no counsel [ *517 ] appearing in his defence. Mr. Attorney and Solicitor-General, Blackstone, Clayton, and Wallace, of counsel for the Crown. After which, Lord MANSFIELD observed to M. Mechel, the Prussian, and other foreign embassadors, then attending the Court, that the laws of England paid as high a regard to the function of embassadors, and would equally protect them from all insults, as well on their reputation as their persons or property, as the laws of any other country. M. D'Eon, on being denied a longer day, thought proper to make no defence. Otherwise it was expected he might have challenged the array, for want of jurors de medietate linguæ. But it was conceived such challege would have been too late, unless he had prayed such jury by a suggestion on the record, that he was a foreigner, at the time of awarding the venire. For this see Staundford's P. C. 1. 3, c. 7; Dyer, 144, 357; Co. Litt. 157 b; Cro. Eliz. 869; 1 Keb. 547 (n).

(n) See also 2 Hale, H. P. C. c. 36, p. 271; 2 Hawk. P. C. c. 43, s. 40; 3 Bac. Abr. Jury, (E), 8; 4 Bla. Comm. 352.

MICH. TERM,-5 GEO. III. 1764.-K. B.

WALKER V. PERKINS, Administrator.

S. C. 3 Burr. 1568.

by the obligor,

in law.

DEBT on bond for 6007. Defendant prays oyer of the con- Bond for cohadition; which recited, that the intestate, William Perkins, and bitation with a Mary Walker, the plaintiff, having contracted a love and value woman seduced for each other, had agreed to live together on the following [518] terms:-that he should find her with board, lodging, clothes, and for a mainand a servant to attend her; and, if he happened to die in her tenance after life-time, or should refuse to live with her, he should pay her his death, void an annuity of 60l. per annum: and that, if she left him, or kept company with any other man, he should not be obliged to pay her the annuity, or to find her in board, &c. The condition of the bond was therefore for the performance of this agreement. Whereupon the defendant pleaded, that this bond was given for an unlawful consideration, that of living together in a state of fornication, and was therefore void in law. Plaintiff replied, that she, being a virgin, was seduced by the said Perkins; and that, for making a provision for her, and as a compensation for her chastity, he gave her the said bond. To

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WALKER

บ.

PERKINS.

which the defendant demurred in law, and assigned several objections in point of pleading, which were waived on the argument, by

Wedderburn, for the defendant, who insisted, that on the face of the bond it appeared to be an illegal consideration, and therefore the bond void.

Blackstone, for the plaintiff, argued, that the setting aside such bonds was as much an encouragement to seduction in one sex, as establishing them would be to incontinence in the other; and that seduction is the more odious crime. That the condition in the bond was twofold; 1st, To engage her to live on with him in a state of debauchery, which is clearly immoral, and therefore contrary to law. 2d, To make a provision for her in case of his death; which, as she was debauched by Perkins, is clearly a good consideration, within the Cases of Lady Annandale, 2 P. Wms. 432 (o); Cray and Rooke, Forrester, 153, &c. That if a bond be conditioned to perform two things, one contrary to law, and the other consistent with law, the bond shall be good as to the latter, and only void as to the former. That if the bond had been put in suit for not continuing to live together, the plaintiff could not have recovered; but being now sued on the virtuous part of the contract, to recover a maintenance after the obligor's death, it was legal. [ *519 ] *And in support of this doctrine, he cited Chesman and Nainby, Lord Raym. 1456, Stra. 739, as fully in point.

But per Cur'. The consequences drawn would be just, did not the foundation fail in point of fact. Here is no virtuous part in the contract: all is calculated for the purposes of prostitution. And per WILMOT, J.-Instead of præmium pudicitia, this is pretium impudicitia. Therefore, per tot. Cur', (absente DENNISON, J., throughout the whole Term),

Judgment for the defendant (p).

(0) S. C. 3 Bro. P. C. 445, or 1 Bro. P. C. 250 (2d ed.).

(p) As to bonds and deeds, the distinction seems to be, that where the bond or deed appears, either on the face of it, or by evidence, to have been given with a view to procure or continue an illicit connection, then it is void, being præmium impudicitiæ; but where it is given, not with that intent, after cohabitation, even to a woman of previous loose character, but more especially to a woman seduced by the obligor or grantor, being in that case præmium pudicitiæ, it is valid: Lady Annandale's Ca., cited in the text. So a voluntary bond, given by a person to a common woman after he had kept her two years, was not relieved against, upon a bill brought by the executor of the obligor. There Ld. Camden, C., observed, "The cases, which have been determined against securities given to common prostitutes, went upon the circumstance of the securities being given previous to the cohabitation; a consideration, which being turpis in its na

ture, the Court has relieved against them. There is no principle in equity which says a man may not give a voluntary bond to a common prostitute; it would be going but a little further to say, he could not give her money, without her being liable to be called upon for it;" Hill v. Spencer, Ambl. 641. "No doubt a bond would be void, where it expresses the consideration of future cohabitation;" per Ld. Loughborough, C., in Franco v. Bolton, 3 Ves. Jun. 368, where the cases on this point are collected; there the counsel said, arguendo, " The principles upon which the Court acts are stated in a variety of cases, which all go pointedly to 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 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 given up." Which two last cited cases were confirmed in Gray v. Mathias, 5 Ves. Jun. 286, where a voluntary bond given during cohabitation to a woman, previously of a very loose life, was considered unimpeached; but another given afterwards, expressly securing a continuance of the connexion, was considered void at law ex turpi causâ. Clarke v. Periam, 2 Atk. 333, 337, semb. contra; but there the bond was cancelled by consent of parties. So in Ex parte Ward, cited in Ex parte Mumford, 15 Ves. Jun. 290, Ld. Camden held, that upon a bond or a bill of exchange, given as a compensation for the injury, not as the price of a future illicit connexion, an action might be maintained. So where one pretended to convey an estate (in Eutopia) to a woman as præmium pudoris, and in fact there was no such estate, L. C. B. Pengelly ordered so much to be conveyed out of the best part of his estate; Cary v. Stafford, Ambl. 520. So a bond given in consideration that the obligee would marry a woman who had cohabited many years with the obligor, was held good in Ex parte Cotterell, Cowp. 742. And where the condition of the bond was "that in consideration of cohabitation had, &c." on demurrer the bond was held good. Clive, J.-" I am in a Court of common law, and not in an Ecclesiastical Court: if a man has lived with a girl, and

afterwards gives her a bond, it is good;"
Turner v. Vaughan, 2 Wils. 339. But
where a young woman was seduced by a
married man, knowing him to be married
at the time of her seduction, a bill brought
by her for payment of an annuity was dis-
missed but without costs; Priest v. Par-
rot, 2 Ves. S. 160; S. P. Mathews v.

1 Madd. 558; Lady Cor's Ca. 3 P. Wms.
339; Robinson v. Gee, 1 Ves. S. 254, where
a husband had assigned his wife to the
obligor, with covenants for quiet enjoy-
ment and further assurance. See also
Knye v. Moore, 1 Sim. & St. 61, 2 Sim. &
St. 260.

But past cohabitation is not a sufficient
consideration to support an assumpsit. Per
Cur." It is not averred, that the de-
fendant was the seducer, and there is no
authority to shew, that past cohabitation
alone, or the ceasing to cohabit in future,
is a good consideration for a promise of
this nature. The cases cited are distin-
guishable from this, because they are all
cases of deeds; and it is a very different
question, whether a consideration be suf-
ficiently good to maintain a promise, and
whether it be so illegal as to make the
deed, which required no consideration,
void;" Binnington v. Wallis, 4 B. & A.
650. See also Robinson v. Cox, 9 Mod.
263; and Gibson v. Dickie, 3 M. & S. 463.

WALKER

ย.

PERKINS.

DENN, on Demise of EDWARD SATTERTHWAITE v. CHARLES

SATTERTHWAITE.

B. attains the

the fee vests

CASE reserved from Lancaster Assizes, on ejectment. The Devise to A. for premisses were a customary estate of inheritance, descendible the use of B. till from ancestor to heir according to the custom of the manor; age of twentyand, by the custom, all tenements are devisable by will in one, and then writing without surrender. Old Clement Satterthwaite, being to B. in fee; admitted tenant in fee, by will, 27th November, 1738, devised immediately in the premisses to William Satterthwaite, his fourth son; for the B. use of William Satterthwaite, son of the said William, for his maintenance and education, till he attained the age of twentyone years; after which, he devised the same to William Satterthwaite, the grandson, and his heirs. William, the son of Clement, entered and was admitted. William, the grandson, died before twenty-one, unmarried; and the defendant is his. brother and heir at law. Clement, the eldest son and heir of the devisor, died after William, the grandson, leaving Edward, his next brother and heir at law; who, 14th May, 1761, devised all his customary estates to his nephew, Edward Satterthwaite, the lessor of the plaintiff, in fee. Neither Clement, the son, nor Edward, his brother, were ever admitted tenants, or were in possession of the rents and profits; and there is no instance of devising customary estates in this manner, before admittance.

DENN

ย.

SATTER

THWAITE.

[ *520 ]

Qu. 1st. As William, the grandson, died before twenty-one, whether the premisses descended to his heir at law? If not, *2d. As Edward, the son of Clement, was never admitted, whether the premisses passed by his will?

Blackstone, for the plaintiff, admitted, that (though in Gates and Haliwell, 1 Leon. 101, it is held, that, on a devise to A. till B. attains the age of twenty-two, and then to B. in fee, the inheritance descends in the interim to the heir at law, yet) all the subsequent cases (q), from Boraston's, 3 Co. 19, to the present time, are so exceeding strong, that in such a case the fee vests in B. immediately; that unless the present case can be distinguished from those, it would be even indecent to argue it. And the only distinction he could see was, that in all the former cases, the first devise, quousque, has been to a third person, and for the benefit of third persons; creditors, widows, younger children, &c.; and then, as the testator has made no other disposition of the fee, but by giving it to the remainder-man, the law vests it immediately, though to be enjoyed in futuro: but in the present case, as the precedent estate is given to the father for the use and benefit of his son till twenty-one, and after his attainer of that age, then to the son in fee, it should seem that the intent of the testator was, that he should not have the fee till after he has attained that age, but that the fee descended in the interim to the testator's heir at law. This distinction seems warranted by the doctrine of North, C. J., in Taylor and Biddal, 2 Mod. 289; "testa"tor devised to Elizabeth, his sister and heir, till her son at"tained twenty-one; and then to the son in fee. Held, that "the fee vests in the son immediately; because the testator "could never intend the inheritance should vest in that person "to whom he had devised the term."-Now in this case, the term is in effect devised to the grandson; and therefore, according to this reasoning, he shall not, during the term, have the fee.

Clayton, for the defendant, cited Hayward and White (r), Hil. 30 Geo. 2, B. R.: devise to trustees and their heirs, in trust to pay the profits for the education of John and Thomas Hayward during their minority; and when they attain the age [ *521 ] of *twenty-one, then to the use of them and their heirs. The Court held, that the will passed an immediate interest to the brothers, and the trustees are only as guardians during their minority. The interest is vested, not contingent; and to take effect in possession, when of age.

And the Court was clear, that in the case at bar, William, the father, was only in the nature of a guardian to his son; and that the fee simple vested instantly in William, the son (s):

(a) Which are collected in Fearne's C. R. 241, et seq.; Vin. Abr. Devise, (N. b); Com. Dig. Id. (N. 18).

(r) Or Goodtitle dem. Hayward v. White, 2 Burr. 228, 1 Lord Kenyon, 506.

(s) So in a devise to trustees till A. shall

attain the age of twenty-four, and when he shall attain that age, to him in fee, A. was held to take a vested interest, which descended to his heirs upon his dying before twenty-four. Ld. Kenyon,-"The words then and when only denote the time when

wherefore the second point was not argued, and there was judgment for the defendant, viz. That the plaintiff be nonsuited.

the remainder shall take effect in possession." Ashhurst, J.-" Had the devisor used these words, 'If A. shall attain the age of twenty-four,' that would have made it a condition precedent, and no interest would have vested in him unless he had attained that age. But here the devisee's estate was to take effect in possession, when he should attain the age of twenty-four. And this is like the case of

a legacy to be paid when the party attains
the age of twenty-one; that is a vested
legacy: but if the legacy be to be paid if
the legatee attain the age of twenty-one, it
is not vested;" Doe v. Lea, 3 T. R. 41,
(see 1 P. Wms. 170; Willes, 338); S. P.
Warter v. Warter, 2 Brod. & B. 349, and
see Machin v. Reynolds, 3 Brod. & B.
121.

DENN

ย. SATTERTHWAITE.

EVANS on Demise of BROOKE v. ASTLEY.

S. C. Ante, 499.

three sons of A.

THIS case was again argued by Serjeant Hewitt for the A devise to the plaintiff, and Norton, Attorney-General, for the defendant; after which the Court gave judgment.

in tail male successively; re

after-born sons

der, for want

sons of A. take

Lord MANSFIELD, C. J.-The reason of the multiplicity and mainder to all seeming disagreement of the cases in the old books, concerning and every the what words shall create an estate tail, and what an estate for of A., without life, in a will, has arisen, not so much from endeavouring to naming any follow the intent of the testator, as from adhering to an old rule estate; remainof law, that the ancestor cannot take a mere estate for life, of such issue, to and, in the same deed, an estate be given to his heirs as pur- B. in tail male: chasors. The reason of this rule was founded in feodal the after-born tenure (t). For otherwise the lord, on the death of the an- an estate in tail cestor, would be defrauded of his feodal profits. But since male. these tenures have been taken away, the Courts have indeed followed the rule of law where the case was plainly and directly within it, but have departed out of it wherever the intent of the testator was clearly against it. This has occasioned the variety. The true construction of the testator's intent is to be collected from his will, taking in the nature of the thing devised, and the relations the persons stand in to him. plaintiff claims as right heir to the testator, to whom the last remainder is limited by the will. He therefore claims under the will: and the same construction must now be used, as if William Hulton, or any other intermediate remainder-man, had been living, and had brought this action. Therefore all arguments are out of the case which have said, that heirs at law are to be favoured, and that nothing but necessary implications can disinherit them (v). No doubt upon this question could have entered into the head of any plain man unused to legal niceties. What must be the construction of this devise, to favour the plaintiff's claim? Either, 1st, That it is void for uncertainty; or, 2dly, That the after-born sons took estates for life as joint

(t) S. P. ante, 266; and see 1 Mer. 668-9.

522 ]

The [522

(v) Quære: see Allen v. Heber, ante, 22, and Hurst v. Winchelsea, ante, 187.

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