Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. V.

Bond granted Causa Adulterii.

Sir William Hamilton of Westport
v.
Mary de Gares, alias Bonamy, and Mary Burton Hamilton

Date: 26 June 1765
Case No. No 22.

A bond of annuity was granted to a woman living in a state of adultery with the granter, and a similar bond was granted to her daughter, who was supposed to be the daughter of the granter also. The Lords found, that no action lay on the bond granted to the mother, but sustained action on that granted to the daughter.

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Sir James Hamilton of Westport granted an heritable bond of annuity, for L. 40 Sterling, to Mary de Gares, alias Bonamy, of the Island of Guernsey, the wife of John Bonamy, of that island. He granted a like bond for L. 20 per annum, to encrease to L. 30, upon the death of her mother, to Mary Burton, alias Hamilton, the daughter of Mary de Gares, by Sir James himself, as was supposed.

Upon the death of Sir James, the estate of Westport devolved on his nephew by a sister, William Ferrier, son of John Ferrier, writer in Linlithgow, who assumed the name of Sir William Hamilton.

Actions were brought by Mary de Gares and her daughter, for payment of their annuities; and Sir William insisted in a reduction, upon the ground that the bonds were null, as granted causa adulterii; and, therefore, ob turpem causam.

Answered for Mary de Gares, There is no evidence of any turpis causa; the bond bears to be granted for good and weighty reasons, and onerous considerations. And, allowing it to be true, that Mary de Gares lived in adultery with Sir James, it does not follow, that the bond was granted on that account. It was not given as an inducement to her to leave her husband, for it was granted long after she had left him, and probably with a view of putting an end to the connection. At any rate, the rule of the law is clear, Turpiter facere quod sit meretrix; non turpiter accipere, cum sit meretrix; 1. 4. § 3. D. De Condict. ob turp. caus. The first violation of her chastity is an act of turpitude; but, after having taken that fatal step, there is no longer any turpitude in her receiving the wages of prostitution, which is now perhaps her only resource.

The law is still clearer, in the case of a bond of annuity granted to a woman in that unhappy situation; by placing her in a state of independence, it gives leisure for reflection and repentance, and puts it in her power once more to return to a life of decency and virtue. Instead, therefore, of being reprobated, such obligations ought to be favoured by the law; and, accordingly, a bond of this kind was sustained, 25th June 1642, Ross against Robertson, No 20. p. 9470.; a decision the more remarkable, that it was pronounced at so early a period, when less indulgence was shown to the delicta carnis than may be expected now.

Answered for Mary Burton Hamilton, The supposed turpis causa cannot apply to her. The presumption is, that she was the daughter of the husband of Mary de Gares: Pater est quem nuptiæ demonstrant. But, supposing her to be the daughter of Sir James, it not only was not unlawful to provide for her, but he was under an obligation to do it. See 7th March 1707, Irving against Skene, No 21. p. 9471.

Replied, It is not denied that Mary de Gares left her husband, and lived in adultery with Sir James. And it will be difficult to assign any other reason for the large provisions which he made to her and her daughter; indeed, the thing is clear from the words of the bond to the daughter, where Sir James gives her his own name, at the same time that he designs her as the daughter of Mary de Gares.

There is no difference between a previous corrupt bargain, and a reward given ex post facto; the cause is still the same. And though, where a young woman is seduced and robbed of her virginity, she may perhaps have action for any gift made to her by the seducer, as, indeed, she is entitled to damages at common law; yet, the case of a married woman living in adultery is different, her guilt being at least equal to that of the person with whom she lives.

The quotation from the civil law does not apply, being confined to the case of a common whore, who is such by profession; and, even in that case, it would seem, that, though there is no condictio for repetition of what is given to a whore, yet she has no action for payment: In pari casu melior est conditio possidentis. So Perezius lays down the law in his Commentary upon the title of the Code De Condictione ob turp. caus. Voet, under that title of the Pandects, num. ult. gives a clear opinion that no action lies. And, upon these principles, a bond, similar to that now in question, was found not actionable, either at the instance of the mother or of the child; 20th July 1622, Weir against Durham, No 19. p. 9469.

If this defence would be sustained, in favour of the party himself, because his turpitude is no greater than that of the pursuer, much more must it be available to his heir, who is altogether innocent.

The Lords found, “That no action can lie upon the bond granted to Mary de Gares, in respect it was granted ob turpem causam; and reduced, assoilzied, decerned, and declared accordingly: But repelled the reasons of reduction and defences against the bond granted to Mary Burton Hamilton; and decerned.”

Act. Ilay Campbell. Alt. Lockhart, Crosbie. Fol. Dic. v. 4. p. 26. Fac. Coll. No 11. p. 218.