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to the indenture, for the purpose of getting the minerals under any other lands belonging to Bickley, or draining away water, or any other reasonable purpose, without making any compensation to Girdlestone, his heirs, &c., for the privilege reserved, and notwithstanding any damage or injury which might be sustained by him or them, in the exercise of such privilege; and also that for the purpose of laying dry the said mines and minerals and those under any lands belonging to Bickley, it should be lawful for him, his heirs, &c., at all times to drive levels, through the coal and ironstone under the plot of land so surrendered, for the purpose of draining away water from all the mines and minerals under land belonging to him, without making any compensation to Girdlestone, his heirs, &c., for the privilege reserved, or for any damage which he or they might sustain in the exercise of the said privilege, either to the surface of the land surrendered, or to any buildings erected thereon by Girdlestone, his heirs, &c. The other covenants were, that Girdlestone, his heirs, &c., should only erect on the land surrendered a church or chapel, house for the use of the minister, school-rooms and house, stable and gighouse; that if Bickley, his heirs, &c., should, in working mines under lands then belonging to him, do damage to any buildings authorized by the indenture to be built upon the land surrendered, he or they should not be compelled or compellable, either at law or in equity, to make any compensation to Girdlestone, his heirs, &c.; and that Girdlestone should indemnify Bickley, his heirs, &c., from all claims for such compensation which might be set up, and from costs incidental thereto.

The plea then stated divers mesne assignments, by which the said freehold lands belonging to Bickley adjoining the plaintiff's land became vested in the defendant, and alleged that the house, outbuildings and wall, in the first count mentioned, and the buildings in the second count mentioned, were part of the premises erected on the land in the declaration mentioned, in pursuance of the stipulation in the deed that Charles Girdlestone, his heirs and assigns, should only erect thereon a church or chapel and house for the use of a minister, school-rooms, with proper appurtenances,

house for a master, and a stable and gighouse; and that the damage in the declaration mentioned happened solely in consequence of the defendants working in the adjoining freehold lands, and not from any working under the land in the declaration mentioned, nor elsewhere, and that such adjoining freehold lands were the lands mentioned in the first count of the declaration, as adjacent and near to the land, house, outbuildings and wall of the plaintiff, and were the lands which contained the mines in the second count mentioned.

The second replication to the third plea set out in extenso the deed mentioned in the plea. It recited that Bickley had on the day of the date of the indenture surrendered the land described therein to Girdlestone, his heirs, &c., but subject and liable as therein expressed, and that on the treaty for the purchase of the land it had been agreed that the covenants thereinafter contained should be entered into; and after the operative part of the conveyance, contained ordinary covenants for quiet enjoyment, &c., and the covenants set out in the pleas. The replication next set out the surrender and admittance of Girdlestone, which were in the ordinary form. It then stated that the deed was not entered upon the rolls of the court of the manor, nor brought to the knowledge of the lord of the manor, or of the Commissioners for building New Churches, before the execution of the deed next mentioned, which was a deed executed by Girdlestone after his admittance, and by the lords of the manor, under the Church Building Acts, 58 Geo. 3, 59 Geo. 3. and 3 Geo. 4, and by which the copyhold land was enfranchised, and with the chapel, parsonage-house and school recently erected thereon, conveyed to the Commissioners for the purpose of being devoted to ecclesiastical purposes. The replication then stated that the Commissioners thereupon became seised in fee of the land mentioned in the declaration; that the church was afterwards consecrated, and the plaintiff in due form presented to the benefice and instituted and inducted, and became the lawful incumbent thereof, and was in lawful possession of the land with the house, outbuildings and wall erected thereon. It alleged finally that the sinking of the land

in the declaration mentioned was not caused by the weight of the house, outbuildings, wall and buildings, or any of them, but solely by the wrongful acts of the defendant.

Demurrer-The ground of demurrer stated was, that the covenant in the deed set out in the plea ran with the land thereby demised, and that the plaintiff held the same subject thereto.

The demurrer was argued in the spring of the year 1865, before Pollock, C.B., Martin, B. and Pigott, B. A written judgment was prepared by Martin, B., to which Pigott, B. assented, in the plaintiff's favour, on the ground that the covenants set out in the plea were not such as to run with the land, so as to bind the assignee of Girdlestone, and that it was immaterial that the lands conveyed to him were of copyhold and not freehold tenure. Pollock, C.B. dissented from this judgment, being of opinion that if the land had been freehold, the covenants would have run with the land. The case was directed to be re-argued on the question whether such covenants could run with copyhold tenements.

Gray (Staveley Hill with him) (Nov. 8, 1865), for the defendant, supported the plea. This plea was originally pleaded generally, but on the argument I felt that it ought to be restricted to the buildings only, and it has been amended accordingly.

[MARTIN, B.-No objection was raised to it on that ground. I thought the plea bad, but that a Court of equity might treat the covenant as a trust, and that the proper amendment would have been to have pleaded it as an equitable plea.]

We could not have pleaded an equitable plea. It is not a case of a trust. My contention is that the covenant acts as a re-grant by Girdlestone to Bickley of a right to get the minerals. The authorities on the point are collected in the note to Spencer's case (1). It is said that Keppell v. Bailey (2) is an authority against the defendant; but that was a case of a mere covenant. This is, in effect, a re-grant. The case, put simply, is this. A man who has a field conveys part of it to a grantee, who covenants that in the event of the vendor making works on his own portion so as to damage the land

(1) 1 Smith's Lead. Cas. 43, 5th ed. (2) 2 Myl. & K. 517.

sold, he shall not be obliged to make compensation for it. The question is, whether such a privilege can be a subject of grant

or not.

[MARTIN, B.-Ackroyd v. Smith (3) and Keppell v. Bailey (2) say that such a grant cannot be made.]

Those are decisions only on the particular circumstances then existing. Rowbotham v. Wilson (4) was a case in which Inclosure Commissioners, by their award, had allotted the surface of lands to one commoner and the mines to another. The allottee of the surface signed the award, which contained a covenant that persons working the mines should not pay compensation for injury to the surface. After houses had been built on the surface and the minerals had been extracted from the mines for more than twenty years the ground gave way, and it was held that the assignee of the surface-owner could not recover compensation from the assignee of the mine-owner. That was a decision of the House of Lords in a similar case to this, and is in the defendant's favour.

[MARTIN, B.-In that case in the Exchequer Chamber Mr. Baron Watson and Mr. Justice Cresswell differed from the rest of the Court. I founded my opinion on some passages in Sheppard's Touchstone, and thought that the principles applicable to easements and servitudes did not apply.]

This is clearly not a case of a servitude. Macnamara (Mellish with him), for the plaintiff, supported the demurrer. The facts in this case take it out of the decision in Rowbotham v. Wilson (4), where all the parties had notice of the award. The surrender to Girdlestone was absolute in its terms, and no notice of the deed was given to the lord of the manor. A surrender may be conditional, no doubt; but a lord is not bound to receive a surrender clogged with a trust-Watkins on Copyholds, p. 116, Flack v. Downing College (5). The lord of the manor had an interest in the preservation of the land, and Girdlestone could not bind him by his covenant.

[POLLOCK, C.B.-Has the lord of the

(3) 10 Com. B. Rep. 164 s. c. 19 Law J. Rep. (N.S.) C.P. 315.

(4) 8 El. & B. 123; s. c. 8 H.L. Cas. 348; 30 Law J. Rep. (N.S.) Q.B. 49.

(5) 13 Com. B. Rep. 945; s. c. 22 Law J. Rep. (N.S.) C.P. 229.

manor such an interest in the copyhold land as would enable him to bring an action against a person who irremediably injured it or wholly destroyed it?]

Yes; for he is interested in the fines. [POLLOCK, C.B.-Then your argument will be, that no tenant could, by covenant with another person, disclaim the right to compensation for irremediable injury done to the land, so as to bind the lord.]

He could not give another person a right to do that which, if he did it himself, would be a ground of forfeiture. There is another point. The land was enfranchised after the deed and before any injury was sustained. The lord of the manor was a party to the enfranchisement and gave his title to the plaintiffs. It has been decided, in the case of Brabant v. Sir Thomas Wilson (6), that the effect of enfranchisement is to put an end to all servitudes.-He also referred to Peachey v. the Duke of Somerset (7) and Watkins on Copyholds, pp. 332, 362.

Gray replied.

Cur, adv. vult.

(6) 1 Law Rep. Q.B. 44; s. c. ante, Q.B. 49.

On the 26th of February

was

MARTIN, B. said: This case argued more than a year ago, and an elaborate judgment was prepared, which is now in my hand, and to which my Brothers Channell and Pigott agreed, but from which the Lord Chief Baron dissented. After the second argument the Lord Chief Baron thinks that the fact that the plaintiff's land was copyhold makes a difference; and therefore there is the unanimous judgment of the Court that on the demurrer to this plea the plaintiff is entitled to judgment. As the Lord Chief Baron differs from the prepared judgment, it will not be delivered.

Judgment for the plaintiff.

Attornies-Benbow & Saltwell, agents for Bourne & Owen, Dudley, for plaintiff; Hollings, Sharp & Ullithorne, agents for Rutter & Neve, Wolverhampton, for defendant.

(7) 1 Str. 447.

END OF HILARY TERM, 1866.

Court of Exchequer

AND IN THE

Exchequer Chamber and House of Lords

ON ERROR AND APPEAL IN CASES IN THE COURT OF EXCHEQUER.

EASTER TERM, 29 VICTORIÆ.

1866. April 17.

}

PEARCE AND ANOTHER V.
BROOKES.

Contract-Illegality· Ex Turpi causa, &c.-Contract in Aid of Prostitution.

It is a good defence to an action for the hire of a brougham that the defendant was a prostitute, and that the plaintiffs at the time of the hiring knew it, and that the brougham was for the purpose of display; and it is not necessary to prove that the brougham was supplied in the expectation that the defendant would pay for it out of her earnings as a prostitute.

The declaration set out an agreement between the plaintiffs and the defendant, whereby the plaintiffs agreed to supply the defendant with a new miniature brougham on hire until the whole of the purchase price (135 guineas) was paid (the period not to exceed twelve months), the defendant to have the option to purchase it, and to pay down 507., and the balance, with 57. per cent. interest thereon, by instalments periodically, so as to complete the purchase within the twelve months; and in case the brougham should be returned on the plaintiffs' hands before a second instalment was paid, a forfeiture of fifteen guineas to be paid in addition to the 50l., and also any damage beyond that occasioned by fair wear. The declaration then averred that the plaintiffs supplied the defendant with a carriage accordingly, and that, before a second instalment was paid and before action, the defendant returned the brougham on the hands of the plaintiffs, damaged otherwise than by fair wear, and the plaintiffs incurred certain expenses in repairing such damage; and all things happened, &c. to entitle them to bring and maintain this action, &c.

There were also common indebitatus counts.

The defendant pleaded inter alia that at the time of making the supposed agreement she was, to the knowledge of the plaintiffs, a prostitute; and that the supposed agreement was made for the supply of a brougham to be held by her as such prostitute, and to assist her in carrying on her said immoral vocation, as the plaintiffs when they made the said agreement well knew, and in the expectation by the plaintiffs that the defendant would pay the plaintiffs the money to be paid by the said agreement out of her receipts as such prostitute. Issue thereon.

The action was tried at the London Sittings after Michaelmas Term, 1865, before Bramwell, B., when the jury found that the plaintiffs at the time of the hiring knew that the defendant was a prostitute, and that the brougham was for the purposes of display.

Montagu Chambers, in Hilary Term, obtained a rule to enter the verdict for the plaintiffs for the fifteen guineas penalty, on the ground that the third plea was not proved, and that the evidence did not support the finding of the jury.

W. D. Seymour (with whom was Beresford) shewed cause against the rule.—The defendant having proved that she was a prostitute, and that the plaintiffs knew it, there was no necessity to prove the further allegation in the plea that they expected to be paid out of the defendant's professional gains. The only authority in support of the plaintiffs' view on this point is a dictum of Lord Ellenborough at Nisi Prius, in Bowry v. Bennett (1).

[BRAMWELL, B.-The manner of payment is quite beside the question.]

Crisp v. Churchill (2) and Lloyd v. Johnson (3) shew that a line is to be drawn between articles of necessary attire and articles of luxury, such as this carriage certainly was to a person in the defen

dant's position. After the finding of the jury that the brougham was for the purpose of display, it must be taken that the plaintiffs were acting in direct furtherance of immorality, and, therefore, the maxim ex turpi causa non oritur actio applies, and prevents them from recovering.

Montagu Chambers and J. O. Griffits, in support of the rule. The allegation in the plea as to the method of payment was necessary, and ought to have been proved by the defendant, according to Bowry v. Bennett (1) and Girardy v. Richardson (4), and the plea would have been demurred to if it had not contained this allegation. By finding that the brougham was used for the purposes of display, the jury have waived the real question. In these days, a brougham cannot be said to be a mere luxury, nor can the Court draw any line between necessaries and luxuries in a case like this. If the article supplied can be used for any purpose whatever other than an immoral purpose, then the plaintiffs ought to succeed, according to Crisp v. Churchill (2) and Lloyd v. Johnson (3), in which latter case Buller, J. said, that "it is impossible for the Court to take into consideration which of the articles (i.e. expensive dresses, and gentlemen's nightcaps, washed by the plaintiff for the defendant, who was a prostitute,) were used by the defendant for an improper purpose, and which were not."

POLLOCK, C.B.-Since the case of Cannan v. Bryce (5), cited by Lord Abinger in M'Kinnell v. Robinson (6), I take the rule to be, that any person who contributes to the performance of an illegal act, with a knowledge that the subject matter of his contract is intended to be illegally applied, cannot recover upon the contract; and that the old notion that, in order to bar the plaintiff from succeeding, it must be shewn that the price was to be paid out of the fruits of the illegality, has ceased to be part of the law, if it ever was part of the law, and I do not think that we should now make a distinction between that which is illegal and that which is immoral. The rule now is, ex turpi (1) 1 Campb. 348.

(2) 1 Bos. & P. 340; s. c. 1 Campb, 348, n. (3) Ibid. 341; s. c. 1 Campb. 348, n.

(4) 1 Esp. 13.

(5) 3 B. & Ald. 179.

(6) 3 Mee. & W. 434.

causa non oritur actio, whether the turpitude consist in immorality or illegality. If, therefore, this carriage was furnished for the purpose of enabling the defendant to make that display which was favourable to her immoral views, it appears to me that no cause of action can arise out of the contract. For certain purposes in criminal law, certain matters must be proved distinctly and absolutely; but I do not think that is at all necessary for the purpose of the administration of civil justice. If enough be given in evidence to satisfy a jury of the nature of the defendant's profession, and that the plaintiffs knew it, and were aware that the article supplied was to facilitate her success in her profession, I think that is quite sufficient, and I agree with my Brother Bramwell that the verdict of the jury expressed all that was necessary for the purpose of this defence.

MARTIN, B.-This plea really contains three averments; but in my judgment it is a good plea without the last averment, and there was therefore no necessity to prove that averment. When it was proved that the defendant was, to the knowledge of the plaintiffs, a prostitute, and that the brougham was hired for the purpose of display (which is a very intelligible word), i. e. to aid and assist her in acting successfully as a prostitute -then the substance of the plea was proved. If it be a portion of a contract between lender and borrower that the money is to be applied to an illegal purpose, that is one thing; but if the money be simply lent to the borrower, the borrower having the intention of so applying it, and the lender merely knowing that he may so apply it, that is another matter; and I have a very strong impression Cannan v. Bryce (5) has been commented upon and dealt with upon that principle (6). But upon the simple ground on which the plea in this case was founded, I think this rule should be discharged.

PIGOTT, B.-The principle of law is contained in the legal maxim, and there is no doubt that where persons engage to be parties to immoral contracts, they must not come to Courts of justice and seek to

(6) See Hodgson v. Temple, 5 Taunt. 181; Gas Light and Coke Company v. Turner, 5 Bing. N.C. 666, per Tindal, C.J., affirmed in error, 6 Bing. N.C. 324; Feret v. Hill, 15 Com. B. Rep. N.S. 207; s. c. 23 Law J. Rep. (N.s.) C.P. 185; and per Lord Lyndhurst, C., in Quarrier v. Colston, 1 Phill. 151.

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