36 Ala. 180 | Ala. | 1860
There can be no doubt, that a contract which is made upon consideration of future illicit intercourse between the parties, is illegal and void. The rule includes a settlement on a mistress, equally with a promise of payment for future illicit intercourse. — Ath. on Mar. Set. 390; 27 Law Lib. 202, There was, therefore, no error in the first charge given. — 1 Story Contr. § 541; Ath. on Mai’. Set. 390.
The first charge asked by the plaintiff was rightly refused. The record recites that the testimony conduced to prove that the real consideration of the agreement was future illicit intercourse; while the bill of exceptions does not affirm that there was any evidence which tended to show that past intercourse furnished the consideration, either in whole or in part, on which the agreement rested. The charge asked may have been proper, in a case where the testimony left the jury in doubt on the question, whether the consideration was past or future intercourse.
If the proof showed that the real consideration of the contract was future cohabitation, then it was to be read as though it had recited that consideration. To establish her cause of action, the plaintiff was forced to rely on the contract; and if that was founded on an illegal consideration, she had no right to recover. — Gunter v. Leckey, 30 Ala. 591. If the plaintiff had been in possession of the slaves, and the administrator of Gregory had sought to recover them from her by suit, possibly the rule would have been different, and she might have protected herself under the maxinl, 11 potior est conditio possidentis.” — 1 Story’s Contr. §543; Worcester v. Eaton, 11 Mass. 378.
There was no error in the refusal of the second charge asked by the appellant.
Judgment affirmed.
