
    Tabitha Singleton, vs. Eliza Elliott Bremar, Widow and Administratrix of F. Bremar, deceased.
    
    
      Letters, which mere received through the Post-Office, may be submitted to the jury, to infer whether they were written by the direction of the plaintiff, who cannot write, on internal evidence; suchas that they state fixts which could only be known to the plaintiff, or contain many circumstances which could relate to no other person.
    
    
      As between the original parties to a promissory note, it may be proved to have been given without consideration, though expressed to be1 for value received,” and if so proved, it is nudum pactum.
    
      Past cohabitation is not a good consideration to support a promise.
    
    This was an action of assumpsit, to recover the following -promissory notes, which were proved at the trial:
    $2,000' Charleston, 2d October, 1813.
    Twelve months after date, I promise to pay Tabitha Sin-gletop, or order, two thousand dollars, for value received.
    (Signed) F. Bremar.
    $2,000. Charleston, 2d October, 1815.
    Twelvemonths after date, 1 promise to pay Tabitha Singleton, two thousand dollars, value received.
    (Signed) F. Bremar."
    The defence was, that these notes were each of them, either nudum pactum, or ex turpi contractu. In support of this de-fence, the following evidence was offered,, proving that the woman Tabitha was a dependant on Bremar, even for the means of subsistence; that she had been first his slave, and afterwards his freed woman, and had notoriously carried on an adulterous intercourse with him, from the time of his marriage to the pe? ¥Íod of his death. .
    
      Mr. Jervis II. Stevens bad known the woman Tabithg^ When she was a slave, and belonged to some persons namedSingleton; he stated that Bremar bought her more than thirty years ago, and she was living with him till his marriage; that in' 1794, he married the lady who is now Ills widov/ and the defend- • ant in this action; that lie setTabitha free,butmainlained the same intercourse with her; that after some years, he went to live in St.. Matthew’s Parish, but still maintained Tabitlia iu town. This testimony was confirmed by captain James Kennedy and Mr, Payne.
    . Dr. Bryan Gunter, had known the plaintiff, after Bremar 'went to live in St. Matthew’s. She was then maintained by hire,, and boasted of the connexion and of his generosity. She and her mother and sisters all lived together; the mother went by the name of Lucy Sorrel, and some other names.
    Mr. William Fain and Mr. Bartholomew Carroll, liad Severally hired houses to Bremar, which ha took for the plaintiff. The receipts for rent paid by Bremar, from the year 1795, for the houses occupied by the same woman,- were produced,amounting to a large sum. The intercourse and the utter dependence of the plaintiff on Bremar, were further proved by the evidence of Mr. Robert Cochran and Mrs. Holly, and carried down to the period of his death.
    With a view to the introduction of certaiuletters, the defendant then read the evidence of M . Glover, which shewed that Bremar was accustomed to take out of the office at Orangeburg,, letters with a private mark; and proved that the letters now offered, having such mark, had, also the Post-Office stamp, and were found among Mr. Bremar’s papers. The defendant submitted the letters themselves, to show by the internal evidence,, that they were the letters of the plaintiff; although she cannot write, and the letters were not signed, and the hand-writing not identified. The internal evidence was found, in the language of jealousy towards Mr. Bremar’s wife; the mention of Lucy Sorrel and of plaintiff’s brother, and the importunate tone in whiclnjhey were written. But the presiding judge refused to look at the contents, and the letters were rejected for want of' pyoof of the hand-writing.
    
      To rebut tbe supposition that' Bremar was a debtor to the plaintiff, the defendant’s counsel called for and produced the deed of F. Bremar, dated 4tli March, 179.4, setting this woman free, by the name of my mulatto girl, Tabitha; also, the .records of two other deeds, emancipating Elisa and Caroline, her sisters; and the record of another deed, conveying to her a !(iegro. .
    In reply, plaintiff produced and proved a deed of F. Bre-mar, dated the 15th April, 1794, conveying to her by the name of “Tabitha, a mulatto girl, lately belonging to me,” two ne-groes, Sarah aud „Polly; consideration, her faithful service; also, a deed dated 18th May, 1809, whereby “in case of death,” he gives her by the name of' Tabitha, a free brown Woman, a house and lot in Wentworth street, “having received full value.”' Plaintiff then proved, by Mr. Cleary, that Bremar liad in his life time sold the house in Wentworth street. Two females-were then called, who said that plaintiff had once been in pos- . ■session of the two slaves; and one of them swore that she saw Bremar one day come to the gate and tell plaintiff that he was'going to sell these negroes, and she afterwards saw them na more. The same witness testified to the virtuous character of plaintiff; that Bremar had been her guardian, and theiy wag nothing in their conduct but what was fit for the relation of guardian 'and ward. No evidence connecting the deeds with the notes was offered.
    Tire defendant then offbred a certified statement, from the books of the Comptroller General,, to- show that plaintiff neves paid taxes either for the house or negroes above-mentioned, and that she did pay taxes, since the time spoken of by the witnesses, for other property. But this evidence was rejected by the; presiding judge,
    ■The presiding judge charged the jury, that these nates, even if Voluntary, were not nudum pactum, and that if a man makes a voluntary note, he is legally bound by it. But that it was unnecessary to consider this point, inasmuch as an ampl§ consideration had been proved: 1st. Cohabitation; 2d. Surrender of property. As to the objection, against the first of the-■above named considerations; viz: ex-turpi contractu lion oritur actio, the presiding judge declared the distinction to be. between a promise in consideration of past cohabitation, which is good, and a promise in consideration of future cohabitation, which is invalid. The presiding judge further charged the jury that the sale of the- house and negroes, which Bremar had given to plaintiff, was a good consideration for these notes, and that the; deed giving" the house and lot, in case of his death, was good and effectual to pass the legal estate, and that it was immaterial what the consideration of these deeds might])ave been.
    The jury found for the plaintiff the full amount of the notes and interest. The defendant moves for a new trial for the following, among other reasons..
    1st. That the presiding judge refused certain letters to be-read, written in a hand not known, but traced to the plaintiffby the proofs offered; viz: that they had been found among the papers of Bremar, had a private mark, such as the Post-master at Orangeburgh described', and the regular Post-office stamp; and the internal evidence, if the contents b.e examined, shows that they are the letters of the plaintiff.
    2nd. That he refused to admit in evidence certified copies from the comptroller’s office.
    3rd. That he charged the jury, that if the notes on which the plaintiff declared, were voluntary, they were nevertheless good; and charged them further, that even supposing a voluntary note to be nudum pactum, (which he denied,) the plaintiff was still entitled to recover, and had proved a sufficient consideration.
    
      4th. That he charged the jury, that the intercourse which, had been proved,, prior to- the date of the notes, was a sufficient consideration for those notes.
    5th: That he charged the jury, that the voluntary deeds produced by the plaintiff were a sufficient consideration for the notes declared on, provided the notes were given on that account; even if those deeds had been the price of future cohabitation.
    For the motion, it was argued: That a voluntary note, as between the original parties, is nudum pactum. Finh vs. Coxt 18 Johns. Rep. 145, 2 Phil. Ev. 11» That no valuable consideration was given for this note, is established by the evidence pf the plaintiff’s circumstances, and that she wag entirely do.pendant on the defendant’s intestate. At all events whether the evidence was sufficient to establish this or no, it should have been left to the jury, to whom it pertained to decide on it’s weight.
    The consideration relied on to support this note, (if consideration be necessary,) are the house and negroes, which are said to have been conveyed to her and afterwards given up, and past cohabitation. The alleged deed is void as a conveyance, because it gives a free hold to commence in future. It is not a covenant, which will give an equitable interest and serve as a consideration. Where a deed is not sufficient to pass the estate, but. the party must come into Equity, the court will never execute a. voluntary agreement. Coleman, vs. Sarrell, -iSro. Ch. Ca. 12/ 1 -Ves. Jun. 54; 1 Ves. 514.- In favour of a wife, children, &c,Equity will execute such an agreement; but there was no such .sanctity in this relation.
    The testimony with respect to the slaves, was very suspicious. If it was true, the intestate may have sold for the plaintiff’s benefit. If he received the proceeds by her consent, shé had no demand against him on that account. A voluntary settlement may be surrendered voluntarily. Wentworth, vs. Der-vigny, Finch's Chan. 69. It is merely a surmise however, that, the notes may have been-founded on these considerations; and it ought to have been submitted to the jury.
    If we have any evidence however, to shew that these notes were founded on abase consideration, it will apply more strongly to the covenant respecting the house and the gift of the slaves. These were at the beginning of the cohabitation.
    But it is said, that past cohabitation was a good consideration. In general, a past consideration will not support a pro-" mise, unless a legal liability has been incurred. Is there any thing peculiarly meritorious in this consideration, to make it au exception? It would be ludicrous to speak of an action of as-sumpsit, brought on a verbal or implied promise, supported by a consideration of this nature. A voluntary bond or deed may be good, and the cases in the books go on that ground; it is never pretended that they are rendered better by a past consideration of this sort. The case of Cusack ¿† wife, vs. White, is relied -upon to shew that past cohabitation is a good consideration.Such expressioiisSare used in the opinion which was delivered iut that ease; but the point did not necessarily arise, and taking the whole opinion ^together, it is evident no more was meant than tliat it would not vitiate a bond or covenant.
    The rule of law, is, that a bond founded on an immoral consideration is void, and that, as far as we can perceive, without distinction of it’s being past or future. Collins, vs. Blan-tum, 2 Wils. 349. Chief Justice Wilmot, in this case remarks, «as to a bond being a gift, that is to be repelled by shewing it was given upon a bad consideration.” Would an7 court entertain a suit on a bond which recited that it was given in consideration that the obligee had committed murder or peijury.
    This being the general rule, the exception is to be made fi-’rt. An exception was made where the bond was preemium pu-dickee; a reparation for seduction; and In the earlier cases, such bonds seem to be supported on this ground alone. Marchioness of Remándale vs. Harris, 2 Pr,. Wins. 432, and the case of Ord., vs. Blaclcet, there cited; Cray, vs. Hooke, cases Temp. Talbott, 153; Robinson, vs. Gee, 1 Wes. 254; Walker, vs. Per--liins, 3 Burr. 1568. The case of Turner, vs. Waughan, 2 Wils* •340, seems to have been decided on this understanding.
    • The exception was gradually extended to other cases, where it was supposed that an injury might have- been done, though the woman had not been in strictness seduced. But in all such cases it was held a sufficient answer to say she had been-r common prostitute. 2 Wern. 242; 9 Mod. 340.
    But it may be asked, have we shown the woman to have been a prostitute in this case? Though it may sound harshly, sve have shewn what is equivalent. When the intercourse commenced, she was a slave; as to whom our laws do not recognize marriage, nor consequently chastity. And owing to the degraded point of view in which’ such persons are regarded, it was" not practically an injury^ as respected either her reputation or' means of support.
    Other cases, in courts of equity, seem to have determined that bonds or settlements,’ founded on past cohabitation, shall always be considered voluntary. Hill, vs. Spencer, JLmb. 641 / Gray, vs. Matthias, 5 Wes. 286. Never, however, have they been considered as better than voluntary.
    
      When the question arises in a court of law, it seems that the consideration is matter of fact, and proper for the determination of the jury. It is proper that they should have the pow-hr of deciding whether the' settlement has been obtained by the ártá of an abandoned woman; or whether the man has done nO: inore than in honor and conscience he was bound to do.
    As to the letters which were offered as the plaintiff’s, think that on the circumstances proved, and the internal evidence, they ought to have gone to the jury. This is not &■ new Sort of proof. One who has corresponded with another is allowed to prove his hand-writing, though he may never have Seen him write. In such case, the witness first ascertains the genuineness of the writing by internal evidence; such as that his correspondent speaks of matters which could be known only to himself, or which no other person would be likely to mention.
    Against the motion. The notes on which the action is brought, express to be for value received; and this is sufficient Evidence of consideration. It lay upon the defendant to shew that they were given upon no ‘ consideration or upon an illegal consideration. The presumption is in favor of the validity of the notes; and certainly there is more evidence of a precedent valuable consideration, from the sale of the houséf and negroes, than there is of subsequent cohabitation. It is a general rule that promissory notes carry on their face evidence of considera.tion. 7 Johns. Rep. 321; 8 Johns. 465; 9 Johns. 217; f> Wheat. 277. The promise by the intestate, to give the house after his death, and the surrender of the two slaves by the plaintiff, clearly constituted a legal and valid consideration for the notes; and when there may be both a valid and an illegal Consideration, the law will refer the contract rather to that which is valid than to that which is illegal.
    It is admitted that the paper promising to convey the house, is not a deed; hut it is contended that it may operate as a deed: it expressed to be for value received, and contained a general warranty. ■ Gae may covenant to stand seized to the use of another, for the life of the grantor, remainder to such Other; and the statute executes the use, in presentí, ■ 3 Com, pig. 253, Tit. Covenant. All that is necessary to süch a. covenant is, that the grantor should be seized at the time, 2 JVilsi-75. In the construction of convenants, -the court always looks to the intention; and there can be no doubt about the intention ofBremar. If one covenant with another, that if he (the grant- or) die without issue, he will stand seized to the use of such othv er, it is a good springing use. 2 Lev. 77; Coliman, vs. >Se?iu-house, 2 Lev. 225; Co. Lit. 154, b.
    
    If the bill of sale of the negroes was upon an immoral consideration, the court would not interfere to restore them to the intestate or his representatives. He was partiteps criminis; to-lenti non Jit injuria. 1 Salk. 22.
    Past cohabitation is itself a good consideration. Chit, on Bills, 93; 2 P.Wms. 432; 2 .Wils 33Q; Amb. 642; 2 Cotop. 742. It is said that these cases proceed on the supposition of a wrong done; but this conclusion is at war with the cases; ancí it will be found upon investigation, that a reasonable and conscientious motive to a contract, is a sufficient consideration. -“The ties of conscience are sufficient for an honest man.” Pr. Ld. Mansfield, 1 Cow'p. 290. It is not true that a past is not a good consideration: although it would not of itself raise an as-sumpsit in law, yet an actual promise, founded on it, is good„ I Com, Dig. 192, Tit. assumpsit.
    
    The act of the legislature, 1 Brev. Dig. 68, renders void any deed or devise to a woman with whom the grantor or testator lives in adultery, if it be for more than one fourth of his estate; and this raises-a strong implication that the gift is so far valid. It does not appear that these notes amount to one fourth of the intestate’s estate.
    To authorize the admission in evidence of the letters which are said to be the plaintiff’s, it must first be proved that they were written by her, or by her authority. Of this there is no shadow of evidence. It is a strange doctrine that you shall-first give their contents in evidence, to get at the internal evidence of their authenticity.
    In reply. As to the admissibility of the letters, were cited Young, vs StocJcdale, 2 Mott 8f JVL1 Cord, 581; and Hopkins, vs.-De Oraffenreid, 1 Bay; in which proof of hand-writing was dispensed with, as being established by internal testimony, §>ee also, Canty, vs. Platt, 1 Ml Cord, 260,.
    
      The ¡question, whether these notes were voluntary or not, was necessary to a determination of this case, and ought to have been submitted to the jury. It is admitted that a deed, although voluntary, is good, on account of its solemnity. It has never been questioned that a voluntary verbal promise to pay or give money is not binding. The law recognizes but two descriptions of contracts; by deed and by parol; the Iasi of which covers both written and verba] contracts. There is no distinction between written and verbal contracts, except where convenience or policy requires; as in favor of commerce, under the custom of merchants; or to revive a debt barred by the statute of limitations, or contracted during infancy. Lawson Plead* ■64) 8 Bos. S/ Pul. 249; 5 Johns. Rep. 275; Cro. Eliz. 442; 756, 873, 885; 15 Johns. 145; 17 Johns. 301; 2' Ves. Jun. Ill; '2 Phil• Ev. 11; 7 T. R. 346; 1 School. \ Lef. 327; 1 Strange, 674; 1 Fonb. 337, n. 4 Mod. 242. Considerations are founded either on a legal tie or moral obligation. 2 Poth-■ieron Obligations, 2. Nuda pacta are left to the parties and impose no legal obligation. Vinnius, B. 3, Tit. 14.
    The case from Ambler, 641, is the strongest in Support fif a contract made in consideration of past cohabitation; and in that case, the court proceeded on the ground that the bond was a gift, and that the want of consideration could not ’be averred against a bond. The court of equity has refused to carry into effect contracts founded on the consideration of past cohabitation. Priest, vs. Parrott, 2 Yes. 160; Matthews, vs. Eld, 1 Maddock, 558. The cases in which' such contracts have been supported are put on the grounds, either of positive injury done, as by seduction; or that the bonds themselves imported a consideration, which was not controverted by thej .facts.
    There is a distinction between executed and executory contracts. If they are executed upon an illegal consideration, the maxim, melior est conditio defendentis, applies. Co. Ldt. 306, b.
    
    A covenant to stand seized to uses, like all others, must have a consideration either valuable or good; nothing short of blood will do..
   The opinion of the court was delivered by

Mr. Justice Jf.ott.

The usual method of proving an instrument of writing", Where there is no subscribing witness, is by proof of the hand writing. But that could not be expected in this case, as the party cannot write. Even if her name had been subscribed to the letters, the difficulty would not have been lessened. Some other method must, therefore, be resorted to, and why may not the letters be looked into. If they furnish internal evidence of •the source from whence the}' were derived, I can see no reason why we may not avail ourselves of that evidence. Thus for instance, if they relate to facts which cannot be known to any other person, it will be presumed that they were written by her .authority. JLf they embrace a number of facts which relate to her and her situation, and which cannot apply to any other person, each of those facts constitutes a link in the chain of circumstances, which go to strengthen the presumption. In ordinary' cases, such evidence will not be allowed, because the writing is always presumed to be by the person by whom it purports to be, .written, and proof of the hand writing, therefore, is higher •evidence, But in the present case, the evidence offered was the best which the nature of the case could afford. Whether it would have been sufficient to establish the fact, is another question, hut I think it ought to have been submitted to the jury.

The certificate from the Comptroller’s Office, I think, Was .properly rejected: It was the certificate of a clerk only, and .therefore was nothing more than a private paper. The certificate of the Comptroller himself, is required by the act of the-legislature, (1st. Brevard, 319,) to render it competent evidence. The inducements which led to that act, probably were the inconvenience which would result from frequently calling a public officer from the duties of his office, and also the credit which is due to a person high in office and in whom great confidence is necessarily .reposed, but none of these reasons can apply ter the clerk, and therefore it cannot be supposed that he was intended to be embraced by the act.

The next ground relates to the charge of . the judge., ip which he instructed the jury, that even if they were of opinion that this was a voluntary note, the plaintiff was entitled to ¡recover. By a voluntary note, I understand, is meant a mere gratuitous promise, without any. consideration. The payment of such a note certainly cannot be enforced in a court of common law. By the. principles of the common law, a consideration of some sort is necessary to'every contract, but bond3 and other specialties, from the solemnity of the seal, carry with them intrinsic evidence of consideration, which cannot be controverted, unless the consideration be unlawful. Judge "Blackstone seems to think (2 Com. 445,) that simple written contracts derive the same solemnity from the subscription of the maker, that special contracts do from the seal, and justice Wilmot, lays it down as doubtful whether any contract in writing can be considered nudum pactum. Pillans Rose, vs. Van Mierop Hopkins, 3 Burr. 1663. But it is settled that the mere reduction of a contract to writing, will not change it’s character, and that a contract, though in writing, is void, if without consideration. In the case of Rhann, vs. Hughes, 7 Durnford East 346, which was referred to all the judges of England for their opinion, it .is said that there are but two kinds of contracts in England, to wit, special contracts, and contracts-by parol. That there is no such intermediate or third class, as written contracts, not under seal, and that written contracts not Under seal, are mere parol contracts. The consideration therefore, may be enquired into; and the rule applies as well to promissory notes, as long as they are in the hands of the original party, as to other Written contracts not under seal; 1 Com. on Con. 12. In the second volume of an American edition of Phillips on evidence, p. 11, it is laid down that in ah action by the payee against the maker of a promissory note, the matters of defence, which may be given" in evidence under the general issue, are governed by the rules applicable to the action of assumpsit in general. The defendant may show that the consideration of the note was illegal and void, or that it was given without consideration. Fink, vs. Cox, 18 Johnson, 145, Skilding & Hacght vs. Warren, 15, Johnson, 270. As between the original parties, a note without consideration is no more than a parol promise to pay money as a gift, which is not a ground of action; it is a nude pact and void as between the ori« ginal parties to it, and a number of authorities are quoted lu .support of the doctrine»

The same principle has been laid dówli íá cur owii courts.. In the case of Rugely & Davidson, 2nd. Const. Decís. 40', Judge Gantt, who delivered the opinion of die court, says, that between the immediate parties to a negotiable instrument:, oí tu the transfer of such an instrument, it is competent for the defen-» dant, notwithstanding the words “value received,” to prove that no consideration had in fact passed from the plaintiff; and in further illustration of the rule, we are almost daily in the habit of permitting the drawer of a note to show that it was given for *he accommodation of the payee, although expressing on its face to be for valued received. I think therefore, that the opinion of the presiding judge on that point cannot be maintained.

Tliis brings me to the consideration of the next ground; which is a supposed misdirection of the. judge, in instructing the jury, that if they should be of opinion that the .note was given in consideration of past cohabitation, the plaintiff was entitled to a verdict. The only cases that I can now recollect, either in this State or in England, where this question has been involved, have arisen upon bonds or deeds, wherein the comido-ration could not be enquired into, unless it could be shewn to be unlawful; and therefore, where a bond is given in consideration of past cohabitation, it is good, because where the consideration has been gratuitous, the bo¿id must be considered as voluntary. The English decisions upon the subject arfe considered and seem to be recognized as correct, in the case cf Cusack & Wife, vs. White 2nd Const. Decís. 279. The judge who delivered the opinion of the court in that case, speaking of the case of Turner and Vaughn, ■2nd Wih.on 339, which was an action on a bond, expressed on Its face to be for past cohabitation, says, the English judges held it to be a good and “meritorious” consideration. Perhaps that is rather too strong an expression; for although a person may be entitled to merit for making reparation for injured reputation, whether occasioned by seduction or otherwise, the act itself of unlawful cohabitation can never be considered meritorious. I presume, therefore, that p&st «oliabiíatiou, under any circumstances, would not be considered £,$ 2 consideration on which an action of assumpsit could be maintained, without some written agreement: and it follows from the principles above laid down, that the mere fact of reducing it to writing, or giving it the form of a promissory note, cannot make it so. When the consideration is gratuitous, a promise made afterwards must be considered as equally gratuitous and voluntary; and therefore it mustbe optional with fhe.party whether he will perform it or not. It is otherwise with bonds, which, though voluntary, must be supported in a court of law. Whether a promissory note, given for the actual injury sustain-, ed in reputation by seduction, would be supported, as bottomed on a good consideration, is a question which does not occur in this case; but I am satisfied that if the notes in question were given in consideration of cohabitation, though past, they must be considered as voluntary and the plaintiff’s action must fail.

With regard to the last exception to the opinion of the ¡court, -in which the jury were instructed, “that if the notes were -given in consideration of property surrendered to the plaintiff, even though that property had been given in consideration of future cohabitation; the plaintiff was entitled to recover,” I think as an abstract rule of law, the opinion was correct. With regard to the application of it to this particular case, I -am not disposed to express any opinion. That will afford a subject for ihe consideration of the jury, whenever the case shall be again submitted to them. If a person should actually transfer property by deed, properly executed, accompanied by delivery and possession of the property, I think it could not be reclaimed, even though die title were founded on a base consideration. I think the rule would apply, mdior est conditio possidentis; and when property is actually vested in a person, a revestiture of it will be a good consideration for a promise. But a mere pretended transfer, for the purpose of giving colour to the transaction, could not promote the object, nor would a voluntary surrender of the property, by which the parties were left in statu quo, raise a consideration for a future promise.

The evidence in this case, has afforded an ample field for speculation, if we had been disposed to give expression to the reflections to which it was calculated to give rise. But I have forborne to give any opinion upon the facts, or the policy cob-nected with the case, for whatever may be the relation in which the parties stand to each other, the case ought to go down, uninfluenced by the opinion of this court, to b.e tried upon it’s merits, if any merits it has; of which the jury must judge.

jPetigru 8f Harper, for motion,

Hunt, contra.

A new trial is granted —

Bay, Johnson Huger, Justices* concurred.  