Sec 373

An agreement is void when the consideration is future illicit cohabitation,1 no matter what other considerations may unite, or how skilfully the illegal object might be cloaked;2 nor is the agreement made valid by a seal.3 A promise of marriage on consideration of sexual intercourse also is void.4 A promise, also, made in compensation for past illicit cohabitation is void for want of consideration;5 though if made under seal it would bind;6 and this even though the cohabitation continues after execution of the deed.7 - And an actual transfer of property in consideration of seduction and of sufferings undergone by the woman, cannot afterwards be impeached by either the party making the settlement or his representatives or assignees.8 -

So as to agreement for illicit cohabitation.

1 Leake, 2d ed. 761; Walker v. Perkins, 1 W. Bl. 517; 3 Burr. 1568; Gray v. Mathias, 5 Ves. 286; Benyon v. Nettlefold, 2 Mac. & G. 94; Coolidge v. Blake, 15 Mass. 429; Trovinger v. McBurney, 5 Cow. 253; Denraan v. Douglass, 102 111. 341; Walker v. Gregory, 36 Ala. 180.

2 Hall v. Palmer, 3 Hare, 536.

3 Walter v. Perkins, ut supra; Friend v. Harrison, 2 C. & P. 584.

4 Beaumont v. Reeve, 8 Q. B. 483; Steinfel v. Levy, 16 Abb. Pr. N. S. 26; Hanks v. Naglee, 54 Cal. 51.

5 Beaumont v. Reeve, 8 Q. B. 483; Fisher v. Bridges, 3 E. & B. 642; Walker v. Gregory, 36 Ala. 180. See Shenk v. Mingle, 13 S. & R. 29. See contra, Smith v. Richards, 29 Conn. 232. And in such case the law of the place of performance binds. Ligeois v. McCrackan, Blatchford, J., 13 Rep. 298.

6 Gray v. Matthias, 5 Ves. 287; Knye v. Moore, 2 Sim. & St. 260; Brown v. Kinsey, 81 N. C. 245.

7 Brown v. Kinsey, 81 N. C. 245.

8 Ayerst v. Jenkins, L. R. 16 Eq. 275; White v. Hunter, 3 Fost. 128; Gisaf v. Neval, 81 Penn. St. 354; and other cases cited Wald's Pollock, 270.

The prevailing distinctions are thus stated by Lord Selborne, Ayerst v. Jenkins, L. R. 16 Eq. 282 (adopted by Pollock, 3d ed. 280), as follows: "Most of the older authorities on the subject of contracts founded on immoral considerations are collected in the notes to Benyon v. Nettlefold, 3 Mac. & G. 94, 100. Their results may be thus stated: 1. Bonds or covenants founded on past consideration, whether adulterous (Kaye v. Moore, 1 Sim. & S. 61), incestuous, or simply immoral, are valid in law, and not liable (unless there be other elements in the case) to be set aside in equity. 2. Such bonds or covenants, if given in consideration of future cohabitation, are void in law (Walker v. Perkins, 3 Burr. 1568), and therefore of course also void in equity. 3. Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument. 4. If an illegal consideration does not appear on the face of the instrument, the objection of par-ticeps criminis will not prevail against a bill of discovery in equity in aid of the defence to an action at law. Benyon v. Nettlefold, ut supra. 5. Under some (but not under all) circumstances,when the consideration is illegal, and does of a house habitually used as a house of ill-fame cannot recover upon the indemnity of the assignee against breaches of covenant in the lease in respect of dilapidations.1

When a contract for the benefit of the woman is on its face executed, bearing reference exclusively to past cohabitation, and the illicit cohabitation between the parties is resumed, this will not itself vitiate a bond or other sealed instrument of which the past cohabitation is the consideration, unless it should be proved that the averment in the contract that cohabitation was abandoned was put in as a fraud, and that the consideration was really in part future.1 - A promise by the father of illegitimate children to their mother in consideration of her taking care of them is good.2 - Promises to support illegitimate children are hereafter distinctively discussed.3