
    Wiggins, Administrator, v. Keizer and Wife.
    
      Thursday, May 31.
    Testimony must be objected to when offered, or tbe objection will be regarded as waived.
    Our statute in relation to contracts not to be performed within a year, is substantially like that of 29 Car. 2, c. 3, s. 4, which has always been held to apply only to contracts which, by the express stipulations of the parties, wore not to be performed within a year, and not to those which might or might not, upon a contingency, be performed within a year.
    That statute has no reference to agreements founded upon a past consideration.
    An express promise can only revive a precedent good consideration which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rale of law; but can give no original right of action, if the obligation on which it is founded never could have been enforced' at law, though not barred by any legal maxim or statute provision.
    There is no implied promise from the father of a bastard child to the mother to furnish it a support.
    A promise by the father of a bastard child to pay the step-father for tho child’s support, past and future, if he will continue to support it, is binding.
    APPEAL from the Wayne Court of Common Pleas.
   Gookins, J.

Keizer and wife filed in the Wayne Common Pleas a claim against the estate of John Mullen, deceased, of which Wiggins was administrator, charging the intestate with the support, clothing, maintenance and education of an illegitimate child of the intestate, born of the wife of Keizer before their marriage, for six years and eleven months, commencing December 16,1845, and ending November 1, 1852. Part of the services are stated to have been rendered by the wife before her marriage with Keizer, which is alleged to have taken place July 25,1848, and part afterwards. A special promise by the intestate is averred.

The defendant answered, 1. By a general denial. 2. That the promise, not being in writing, was void by the statute of frauds, because it was not to be performed within one year. 3. That the promise was not made until after the services were rendered, and that there was no valid consideration to support the promise. 4. The statute of limitations. 5. That Mullen was not the father of the child. 6. That no order of filiation had been made against Mullen. The plaintiff demurred to the second, third and sixth paragraphs of the answer, and to so much of the fourth as alleged that six years had elapsed since the promise was made, and took issue upon the fifth paragraph, and upon so much, of the fourth as alleged that the cause of action had accrued more than six years before the death of Mullen. The demurrers were sustained. The issues were tried by the Court, who found for the plaintiffs, overruled a motion for a new trial, and gave judgment, from which the defendant appeals. ■

A question discussed by the appellant arises upon the fifth issue, viz., whether Mullen is proved to be the father of the child. The only evidence on this point is the deposition of a Mrs. Davis. She testifies to repeated declarations by Mullen that the child was his. She also testifies, that the child was born about the 16th of September, 1845; that Mrs. Keizer's first husband was a Mr. Good, with whom she had lived six months or a year, when he died; that about July, 1848, Mrs. Good was married to Keizer; that she had been the widow of Good about three years when she married Keizer; and that the child was born while she was Good's widow. From this' testimony the appellant infers that Good was alive in July, 1845, and that a child born in September of that year must be presumed in law to have been his, and that the declarations of Mullen were inadmissible to rebut that presumption. As no objection was made to this evidence when offered, none can now be urged to its admissibility, and the only question to be considered is, how much it proves. The witness does not pretend to fix dates. She says the child’s mother lived with Good about six months or a year, and that she had been a widow about three years, when Keizer married her in July, 1848. As the plaintiffs were bound to prove the issue, the defendant might perhaps have insisted from this evidence alone, that Good was alive in July, 1845; but when we consider the great improbability that Mullen would have acknowledged the parentage of a child born within two months after the husband’s death, and his often-repeated claim of it as his own, we think the Court was authorized fmc[ that issue for the plaintiffs. The authorities quoted by the appellant upon the admissibility of Mullen’s declarations, would have required an examination, had the testimony been objected to when offered.

Another position assumed by the appellant is, that the promise of Mullen was void by the statute of frauds, because it was not to be performed within a year. The promise proved was, that he would pay for the past and future raising of the child, and it is said that a promise to raise a child necessarily implies that the agreement is not to be performed within a year. Our statute on this subject is substantially like that of 29 Car. 2, c. 3, s. 4, which has always been held to apply only to contracts which, by the express stipulations of the parties, were not to be performed within a year, and not to those which might or might not, upon a contingency, be performed within a year. Fenton v. Emblers, 3 Burr. 1278.—Moore v. Fox, 10 Johns. R. 244. There are numerous American cases to the same, effect. As the child may have died, within a year, the promise was not within the statute. As to the services rendered before the promise was made, it is enough to say, the statute has no reference to a past consideration.

A question of more difficulty is, whether the promise of Mullen was based upon a sufficient consideration. The appellees insist that there is a legal obligation upon the father of an illegitimate child to support it, because its support may be enforced, by an order of filiation; and, at least, that the moral obligation upon the father is sufficient to. sustain an express promise; and several cases are referred to which are supposed to sustain the latter position.

It is proved by Mrs. Davis that she had often heard Mullen declare that the child was his; that he intended to compensate the mother liberally for its support, &c.; but none of these conversations were had in her presence. In October, 1852, the witness was with Mullen at Keizer’s house, when he told Keizer and his wife that he was able to pay them for keeping the child; that he would be there again immediately after the presidential election, when he would come prepared to pay them for all the trouble and expense of raising her thus far, and that he would then advanee them money to pay for her education and support in the future. It appeared from the testimony, that Mullen died about the day of the presidential election, and that the child was kept at Keizer’s until his death.

In presenting this case, no point is made by the parties upon the joining of the husband and wife, in an action on this promise, nor in regard to the effect of a promise made to them jointly. We shall, therefore, notice them no further than is necessary in determining the sufficiency of the consideration; but for that purpose we must distinguish between the services rendered before and those rendered after the marriage; and as to the former, we shall regard the case as if no marriage had taken place.

Our first inquiry, then, will be, whether the promise, in regard to the services rendered before the marriage, was based upon a sufficient consideration ?

The appellees rely upon the case of Hesketh v. Gowing, 5 Esp. 131. In that case the plaintiff, not the mother, had nursed the defendant’s illegitimate child, which he had visited while there, and admitted to be his., The defendant took the child home, where it was properly cared for, but the mother, against his consent, carried it back to the plaintiff, where it was kept with the defendant’s knowledge. There was no order of filiation. Lord Ellenborough said, there was nothing in the objection that the child was illegitimate and no order of bastardy; that the father was liable, if he adopted the child; but that he could only be charged upon his contract. That question he left to the jury, who found for the plaintiff. This decision treats the question of bastardy as out of the case, and it was as if a father had allowed a member of his family to be sent to board, upon which an implied assumpsit would lie. It was not a question of moral obligation, but the common case of an implied assumpsit.

Nichols v. Allen, 3 Carr. & Payne 36, was an action for boarding the defendant’s illegitimate child. It was resolved upon the same principles as the case of Hesketh v. Gowing. Tenterden, C. J., in giving judgment, said, there was not only a moral but a legal obligation upon the defendant, and he would hold him liable unless he had refused to allow the child to be kept at his expense.

Furrilio v. Crowther, 7 Dowl. & Ry. 612, was brought by the mother against the alleged father. He had never expressly acknowledged the child as his own, but after having made some payments towards its support, refused to pay anything further, unless he could be satisfied by a magistrate’s order, made on her oath, that he was the person who ought to make such payments. It was held the action would not lie.

In Cameron v. Baker, 1 Carr. & Payne 268, the defendant had been prosecuted for seduction. The suit was compromised upon the defendant’s promise to pay £20 annually for the child’s support. Best, J., said, “the father of an illegitimate child is not bound to maintain it, unless compelled by a magistrate’s order, but if he consents to pay an annual support, he must continue to do so, or give notice that he intends to pay no longer.” It would seem that in that case the compromise of the action for seduction was a sufficient consideration. It was held by this Court, in Doe v. Horn, 1 Ind. R. 363, that past seduction was a sufficient consideration to support a deed; and so in the case of the Marchioness of Annandale v. Harris, 2 P. W. 432; but a deed is good without a consideration, and in Pennsylvania, it seems that such a consideration is sufficient to support a promise; Shenk v. Mingle, 13 Serg. & R. 29.—9 Watts & Serg. 69; but it may well be doubted whether, unconnected with a compromise or some other consideration, it ought to be held sufficient. In Binnington v. Wallis, 4 B. and Ald. 650, the parties had cohabited for twelve years, when they agreed to cease their immoral conduct, and the defendant promised to pay the plaintiff £40 a year, and afterwards, in consideration that she would give up the annuity, he promised to pay her its value; and it was held that there was no consideration for the promise.

A disposition has been sometimes shown to bend the rale of law, to accommodate cases of extreme hardship. Thus in Cooper v. Martin, 4 East 76, which was an action by a step-father against his step-son, upon an express promise to pay for his maintenance during his minority, it was held, that the promise was founded on a sufficient consideration, especially as the plaintiff was a man of small substance, and the defendant had a competent possession to receive when he came of age. Accommodating the rules of law to particular cases, on account of their supposed hardship, would soon introduce' all that uncertainty with which the law is so often charged.

It has often been said by eminent judges, that a moral obligation was a sufficient consideration to support an express promise; and some misapprehensions have arisen from the statement of the proposition thus broadly. The manifest impracticability of extracting from the numberless moral duties which may be demonstrated by the science of ethics, a rule of law applicable to the business relations of life, shows very plainly that those duties of imperfect obligation are not' such as are contemplated by the rule when properly understood. If a bankrupt, after his discharge, or a person under a disability, after the disability is removed, or a debtor whose debt is barred by the statute of limitations, expressly promises to pay his debt, the moral obligation is apparent, and the promise has a substantial basis on which to rest, that is, a consideration actually received. Of the various definitions which have been given of this Idnd of moral obligation, we have met with none more satisfactory than is contained in a note to Wennall v. Adney, 3 Bos. and Pul. 247. “ An express promise can only revive a precedent good consideration which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law, but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.”

The rule thus stated is clear, intelligible, and not difficult of application. It is true there have been departures from it; but we think it is sustained by the current of authorities. Wennall v. Adney, supra.—Furrillio v. Crowther, supra.—Mills v. Wyman, 3 Pick. 207.—Dodge v. Adams, 19 id. 429.—Ehle v. Judson, 24 Wend. 97.—Boston v. Dodge, 1 Blackf. 19, note 1.

Tested by this rule the promise made by Mullen was riot based upon a sufficient consideration, and was therefore not binding upon him. There is no implied promise from the father of a bastard child to the mother to furnish it a support. Legally it has no father.

The promise made to Keizer must be viewed in a different light. He was certainly under no obligation to support the child. Mullen requested him to continue its support, and promised to pay for it, past and future. As Keizer retained it until Mullen's death, he must be considered as having assented to his request. This brings the case within the principle of Hesketh v. Gowing and Nichols v. Allen, supra. The appellant objects, that, as to the past services, the promise was not binding; but it was an entire contract, embracing the past and the future. The case of Bret v. J S. and wife, Cro. Eliz. 755, cited in Wennall v. Adney, supra, note a, was like the present. There the first husband sent his son to board with the plaintiff for three years, at <£8 per annum, and died within the year, and the wife, during her widowhood, in consideration that the son should continue the residue of the time, promised to pay the plaintiff <£6 13s. and 4d. for the time past, and ¿68 for every year after. This promise, upon the principle already stated, regarded as based upon the consideration of love and affection, would not have been binding upon the mother, but as there was connected with it the further consideration that he should remain at the plaintiff’s table, it was held sufficient.

We are, therefore, of the opinion that for the support of the child by Keizer, from the date of his marriage with the child’s mother, he is entitled to recover. This time appears to have been about four years and four months, for which we think a reasonable allowance, from the testimony, would be 280 dollars. If the appellees shall remit the excess of the judgment below, it will be affirmed; otherwise it will be reversed.

W. A. Bickle, for the appellant.

O. P. Morton, for the appellees.

Per Curiam.

The excess in the judgment of the Court of Common Pleas having been remitted by the appellees, the judgment is affirmed.  