
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC., 1814.
    James Denton & Wife v. Joseph English.
    The A. A. 1795, forbidding the granting or giving more than a certain portion of his estate to a woman with whom a man is living in adultery, allows him to give the proportion mentioned in that act, e.ven as the price of prostitution, or future immoral intercourse.
    Motion for a new trial.
    The action was trover for sundry negro slaves, tried in Rich-land district, before Brevard, J., October, 1811.
    Both parties claimed under titles derived .from Wm. Fitzpatrick, deceased, who, some time before his death, became insane. It appeared in evidence, that Wm. Fitzpatrick had parted from his wife, and lived many years separate from her. During this separation he formed an intimacy with Elizabeth Gillespie, a single woman, who was acquainted with his circumstances, and knew that his wife was then living in their neighborhood. He cohabited with Elizabeth G., now Mrs. Denton, one of the plaintiffs. She went w'th him into Georgia, where they were married, and they after-wards lived together as man and wife. After the death of Wm. F. his widow intermarried with the plaintiff, James Denton. The defendant, Joseph English, married the daughter of Wm. F. by his lawful wife.
    The evidence for the plaintiffs consisted of — 1. A bill of sale from Wm. Fitzpatrick to Elizabeth Gillespie, dated 27th May, 1798, of sundry negro slaves. It was proved that Daniel Peak, Elizabeth Gillespie’s uncle, paid $ 1000 to Fitzpatrick, but it did not appear to have been paid in consideration of these negroes. The negroes mentioned in this bill of sale, continued in the possession of Fitzpatrick, after making the deed, the same as before. But Miss Gillespie was living with him, and'continued to live and cohabit with him as his wife, until his death. It appeared that Fitzpatrick agreed to pay for the services of the negroes. 2. A bill of sale from Daniel Peak to Elizabeth Gillespie, dated 28th October, 1807, of sundry other negroes. 3. A hill of sale from Fitzpatrick to Daniel Peak, of the same negroes, dated 21st January, 1807. These negroes also continued always in the possession of Fitzpatrick, until his death. The consideration, SJSLOOO, was paid by D. Peak. After his death, the defendant, English, got possession of them. 4. A bill of sale from Christopher Brown to Elizabeth G., and other evidence not material to report.
    Evidence was given by the defendant to invalidate the abovemen-tioned deeds, and to restrain their operation, pursuant to an A. A. of 1705, which limits gifts to any woman with whom a man shall live in adultery.-
    Mr. Fitzpatrick appeared to have possessed a considerable es.tate, real and personal, at the time of making these bills of sale, but it was not ascertained what was “ the real clear value thereof after payment of his debts.” It appeared that his connection with Elizabeth Gillespie had commenced a little before the date of the conveyance from him to her, in 1798. He was then far advanced in life. She was young and handsome. She appeared to have great influence over Him. She had two children by him. Some time before his death he became non compos mentis, and then she neglected him, and treated him unkindly. His insanity was first noticed in 1808, some time after the date of the deed to Peak. It appeared that Peak borrowed money from Fitzpatrick, to pay the consideration of the slaves sold to him, and which he afterwards conveyed to Elizabeth Gillespie. It seemed highly probable that these bills of sale were colorable only, and intended as a settle-meat on Elizabeth Gillespie.’
    
      Note, The A, A. 1795, Dig. Tit. 80, sec. 5, declares that if an inhabitant of this State shall live in adultery with a woman, having a, wife, or lawful children, living, and shall give for the use of said woman, a greater proportion of the real clear value of his estate, after payment of his debts, than one fourth part thereof, suc[i ¿ee,j sha]i be void, for so much of the amount or value thereof, as shall exceed one fourthpart thereof. A like provision is made as to gifts.to bastard children. The act seems to have had in contemplation, lawful deeds, conveyances, &c., capable of transferring the right of property meant to be conveyed, and not void deeds.
    
      In charging the jury, the judge instructed them to consider the deed from Fitzpatrick to Elizabeth Gillespie, as altogether void, if the evidence appeared sufficient to satisfy them that the same was given by way of inducement to her to live with him in a state of unlawful cohabitation, and not as a reparation for past prostitution, and illicit commerce. That if the consideration was future prostitution, or cohabitation, it was against public morality, and void. On the contrary, if it should appear that the deed was intended as the price of modesty, and not with any view to future immoral intercourse, it was legally valid, and the consideration could not be impeached. The jury were told that the circumstances detailed in evidence, appeared to justify the presumption that the consideration was unlawful. Relative to the deeds from Fitzpatrick to Peak, and from Peak to Elizabeth Gillespie, which had been treated as collusive and fraudulent, the jury were charged, if they were satisfied from the evidence, that those deeds were not bona fide, but intended to elude the provisions of the A. A., they would be subject to the rules, and exposed to the same exceptions which had been applied to the first mentioned deed .from Fitzpatrick to Elizabeth Gillespie.
    The verdict was for the defendant.
    The case was argued Dec. 1, 1814,
    before Judges Gmmke, Bay, Smith, and Coecock. Nott, J., had been engaged as counsel in the cause.
   The majority of the court,

Giiimke, Bay,' and Smith,

were of opinion that the jury had been misdirected, and, therefore, granted a new trial. They construed the A. A. 1795, as forbidding the granting or giving more than a certain proportion of his estate to a woman with whom a man is living in adultery, but allowing him to give the proportion mentioned in the act, even as the price of prostitution, or future immoral intercourse.

Judge Colcock,

on the contrary, was of opinion, that the jury had been correctly instructed. That the A. A. was not intended to alter the common law as to deeds or agreements, made contra bonos mores; and that the construction given to the act by his brethren, would have a tendency to encourage lewdness and immorality. ^

New trial granted.  