
    Elizabeth Bowman, v. Mary Ann Smith, Executor of Mag. Hunter.
    The rule which requires the production of the highest evidence, shouldbe strictly enforced, when a promissory note is the subject of the action.
    It not produced, it is very necessary that the loss of a note should be proved, or its non-production satisfactorily accounted for by circumstances for the consideration of a jury.
    It is for the jury to determine what weight is to be given to the testimony of one whose immoral and degraded life shows a want of religious sentiment, or a disregard to personal character or reputation in society.
    Tried before Mr. Justice Butler, at Charleston, May Term, 1846.
    The declaration contained counts on a note set out, according to its purport.
    The evidence to support the counts was as follows:
    
      Eliza Bird, who was examined by commission, said that sbe was a witness to a note executed in her presence. It was executed in the house of Elizabeth Bowman, and was given to her in consideration of furniture sold by her to Margaret Hunter. Margaret Hunter signed her name to the note, M. Senter; it was for $650, and dated some time in 1837. It appeared, on the cross-examination of the witness, that she lived with E. Bowman, who (from the evidence of other witnesses,) kept a bawdy house in New-York.
    
      Philip S. Cork, an Attorney in New-York, became acquainted with Elizabeth Bowman in 1837, but did not know Margaret Hunter. Afhr her death, he had delivered to him for collection a note on her for $650, made payable to plaintiff. It was due when he received it. He delivered the note to R. Burney, to be sent to Charleston for collection.
    
      William Burney said, he received the note from P. S. Cork, with instructions to have it collected: this was 1st January, 1839: the note was signed Margaret Senter, and dated 17th July, 1837, for $655 76, payable on demand. The witness said he gave the note to Mr. Mazyck, to be collected by suit. He knew Mag. Hunter, but never heard her called Margaret Senter.
    
      Mr. Mazyck says, that he recollects seeing such a note as that described; that when Mr. Burney consulted him about having it collected, he advised him to send it to New-York, as the deceased left some estate there; and he thought it ought tobe exhausted before the creditors there should come on the estate here; and his impression is that the note was never delivered to him.
    The description of the note was taken from Burney’s recollection.
    Proceedings before the Surrogate in New-York were introduced, shewing that creditors had preferred their claims, and had them established; among others was the demand of plaintiff on this note, amounting at the time to $800. In making out the sum, credits on the note had been allowed, which would go to shew, that either the note, or an accurate memorandum of its contents, was before the officer.
    Several witnesses residing in Charleston, said they knew Mag. Hunter, and never heard her called Margaret Senter. She left some real estate here, and was in very good pecuniary circumstances. The rents of her houses were transmitted to her in New-York.
    Some witnesses, examined by commission, proved that Margaret Hunter kept a house of ill-fame in the city of New-York.
    It was also proved that the plaintiff kept the same house» and from the evidence it was possible, that at the expiration of her lease she had sold out her furniture to M. Hunter.
    The existence and loss of the note, as questions of fact, were left to the jury with proper instructions as to the law.
    The consideration of the note was attacked, on the ground that a contract made for the sale of furniture, to be used in a brothel, was immoral and void.
    The presiding Judge laid down the law to be, that such a contract would be void, if there was any understanding that the furniture was to be paid for out of the profits arising out of the immoral use of such property. But that where a contract had been for the sale of a house, or furniture, from one procuress to another, he would hold it legal, provided the payment was to be made by, or exacted from the purchaser, on her independent and sufficient pecuniary responsibility. In other words, a contract for the sale of a house to a prostitute, would not of itself be void.
    The plaintiff appeals on the annexed grounds.
    1. That the existence and loss of the note sued on, were clearly proved.
    2. That the consideration of the note was not such as to bring it within the description of contracts, which the law regards as immoral, or contra bonos mores, and therefore will not enforce.
    3. That the verdict is against law and the evidence, and must have been founded upon some misapprehension on the part of the jury.
    Hayne, for the motion.
    Hunt, contra.
    
   Frost J.

delivered the opinion of the Court.

No objection has been made to the recovery of the plaintiff on the ground that the cause of action was a negotiable instrument; and the report of the case does not enable the Court to express any opinion on that point, since it does not appear whether it was in fact negotiable.

The instruction of the circuit Judge presents a statement of Jaw so favorable to the plaintiff, that it is not open to any valid exception on his part. The rule of law delivered to the jury, that the contract would be void, if there was any understanding that the furniture was to be paid for out of the profits arising from the immoral use of it, is indefinite and ambiguous. If, by the understanding of the parties, is meant a stipulation or agreement, the rule is too restricted for any practical discouragement of such contracts; since it is against the interest of the contracting party to diminish his security by stipulating for payment from a particular income, where all the income and effects of the other party are by law liable for his demand. The mere expectation of payment, if that be meant, is too vague and incapable of proof to support a rule of law. If the immoral tendency of such contracts is to be noticed and restrained by law, the only effectual and practical rule must be, that the Court will not enforce a contract for supplies furnished for the purposes of prostitution, with the knowledge of the plaintiff.

In Jennings v. Throgmorton, 21 E. C. L. R., 431, where it did not appear that the lodging was originally let for the purposes of prostitution, yet it was held that the plaintiff could not recover the weekly rent, which accrued after he was informed that the defendant occupied the premises for such purpose. A contract for the sale of the furniture of the house by one keeper of a brothel to another, who succeeds to the lease and occupation of the premises, cannot be distinguished from the case cited. But it is not necessary to the judgment of the Court, that any rule on the subject should be affirmed; and the instruction of the circuit Judge is only noticed to prevent the inference that this Court concurs in the law as stated in the report. When thus disembarrassed of the questions of law, the motion for a new trial depends on the sufficiency of the proof to support the verdict. The questions of fact submitted to the jury, were, first, if the note was executed by the testatrix; and second, if sufficient evidence of the loss was produced. The execution of the note rests wholly on the testimony of Eliza Bird. The immoral and degraded life of this witness detracts from her testimony the faith and credit which can only be attributed to religious sentiment, or a regard to personal character and reputation in society. If the jury saw fit to disbelieve her, the Court cannot say they were not warranted in doing so. The rule which requires the production of the highest evidence, should be strictly enforced where a promissory note is the subject of the action. It is a perfect contract in itself, supplying proof in every particular of the maker’s liability. If not produced, it is very necessary that the loss of it should be proved, or its non-production satisfactorily accounted for. If this proof be not enforced, the recovery on a lost note may give opportunity for various frauds. No rule prescribes what evidence shall be required of the loss. It is scarcely possible to prove the loss by direct evidence, and it must therefore in most cases be made out by circumstances to the satisfaction of the jury. The impression of the plaintiff’s attorney, that the note was not delivered to him, but when brought to him by the plaintiff-’s agent, that he advised it should be returned to New-York for collection; and the proof that the demand was preferred and established before the Surrogate of that State, more than two years after it was received by the plaintiff’s agent in Charleston, as appears by the statement of the amount due; and this, without any search or inquiry for the note, is certainly very imperfect proof of loss.

The motion is refused.  