
    
      Commissioners of the Poor v. Jesse Gilbert.
    
    A bond voluntarily given to the Commissioners of the Poor, by the putative father, for the maintenance of a bastard child, is good at common law.
    
      Before Mr. Justice Wardlaw, at Darlington, Fall Term, 1847.
    This was an action of debt on bond. The bond was payable by the defendant to the plaintiffs, and after a recital that the defendant had been charged as the father of an illegitimate child, was conditioned to be void if the defendant should annually pay to the plaintiffs $25 for the maintenance of the said child.
    
      The declaration set forth the bond and condition. The defendant after oyer demurred generally, and. for causes specified : first, that the bond was void at common law, as it had been entered into under show of legal process; second, that it was void under the Acts of Assembly concerning bastardy, as not the recognizance payable to the State, which those Acts required.
    The Circuit Judge says: I sustained the demurrer— chiefly on the authority of the case of the Commissioners of the Poor against Gains, 1 Tread. 459, which I thought not overruled by subsequent cases, which hold that a contract good at common law may be enforced, although some directions of a statute, under which it is entered into, have been disregarded.
    The plaintiffs moved the Court of Appeals to reverse the judgment in favor of the defendant on demurrer to the plaintiff’s declaration, on the ground following:
    That the bond of the defendant, though not taken according to the Act of Assembly, was good at common law, and the plaintiffs were entitled to recover thereon.
    DargaN, for the motion.
    This was a bond to pay to the Commissioners of the Poor, instead of an acknowledgment of indebtedness to the State. It is not void, because of illegal consideration. It has at least moral obligation to support it. Is not the natural and moral obligation of the father to maintain his offspring, sufficient consideration at common law to support this contract, under seal? If there was no statutory provision on the subject, would not this bond be binding at common law? Unless the Act provide some other form for the bond to be in, or otherwise to be void, it is not void if it is not in violation of common law. — >State v. Mason, 2 N. & McC. 425; Moyer v. Folk, Har. 50; Treasurers v. Bates, 2 Bail. 376. There was no fraud — no force — in this case. The act of giving the bond was lawful and moral. Commissioners of the Poor v. Gaines, 1 Tread. 459, is an old case, and overruled. It also appeared on the face of the bond in that case, that the party was arrested under legal proceedings. — Swindler v. O’Conner, 2 Rich. 24.
    Sims, contra.
    
    As to the facts of this case, there can be no question. The magistrate supposed he was pursuing the details and requisitions of the Act. The demurrer set up two objections. At common law no man is bound to support a bastard child, and although it is not illegal to enter into an obligation to do so, he is not bound to do so; nor can the Commissioners of the Poor require him to do so. The Acts of our Assembly alone prescribe certain forms by which the father is required to come forward and be bound, so as to relieve the parish or district. The Act of 1830, 6 Stat. 410, first provided for bastards being bound out by the Commissioners of the Poor. This case assumes to be under the Act, and to conform to it. The case of Moyer Folk does not affect this; there is no analogy between them. In all the other cases cited the obligations were voluntary, and good at common law, though not good under the statute. In this case the bond was not a voluntary bond, but the party under arrest entered into such a bond as the magistrate required of him (as he believed) under the Act of Assembly. This bond ought not to be, and should not be enforced, for the father may again bé subject to prosecution. Under this bond the Commissioners have no right to receive or spend the fund for the benefit of the child, or to preserve the district harmless. A voluntary bond is alone good at common law. The Act should be strictly complied with, or the bond will be void. The case in Treadway has never been overruled.
    Dargan, in reply. The common law is so comprehensive and so philosophical, that it embraces all cases as they arise. It holds a man bound to perform his obligation to do that which he is bound morally to do. As to the father being again liable, no voluntary act or deed of his will be a bar to indictment. It is his own fault. It would be his own act. If a party under arrest do what is legal, he cannot afterwards say it was under duress, when no improper advantage had been taken, nor any improper use made of the process of law. —Meek v. Atkinson, 1 Bail. 84.
   Richardson, J.

delivered the opinion of the Court.

The bond in this case was given by Jesse Gilbert, the putative father of the bastard child.

. The first question is this: Is the bond, as presented by its own terms, good at common law ? A bond for the maintenance of an illegitimate child is no more than the expressed and obligatory acknowledgment by a father of the natural and moral duty of nurture and support for the child begotten. And municipal law, when it takes from a bastard the legal claims of a legitimate child upon the parent, acts negatively and specifically in favor of the institution of lawful marriage. But such law does not annul the natural right of the illegitimate child to necessary support, nor the moral obligation of the parent to afford it.

The Bastardy Acts themselves recognize in bastards this natural right, and the father’s moral duty, to a certain extent, and enforce the duty, under a penalty. But after the case of Moyer v. Folk, Harper 50, in which the nóte given to the mother by the putative father, and that after his arrest too, was held good, how can the Court doubt on this head? But look also at the case of Commissioners v. Gains, 2 Nott & McC. 459, which is relied upon to support the demurrer. In that case, while setting aside the particular bond, on other grounds, Judge Nott says, “if it had been voluntarily entered into, for the purpose of supporting the child, I should consider it a duty which the obligor was under, a natural and moral obligation to perform, and therefore a debt he was legally bound to pay.” “But,” the Judge continues, “it appears on the face of it (the bond) that he (Gains) was taken by a warrant,” &c. “and compelled, under color of legal authority, to enter into a bond for purposes which he was neither naturally nor legally bound to perform, therefore it is void.” What those illegal purposes were that did not bind Gains the putative father, we have now to enquire.

This brings us to the second and precise question of the case now before the Court — i. e. Does the bond given to the Commissioners of the -Poor by Jesse Gilbert, the defendant, expressly for the maintenance of the imputed child, come under the former class of voluntary bonds, good at common law, or under the latter class, i. e. of bonds taken under color of legal authority, which appears on its face, and of course frima facie compulsory; and being different from the bond required by the Act, and for other purposes, is therefore void?

What was Gains’ case, from the face of the bond? 1st. He had been taken on a warrant. 2d. He gave the bond to the Commissioners of the Poor. 3d. For what purpose? — -Not for the maintenance of the child, but “for the citizens of the aforesaid district.” 4th. Instead of being a bond void under the condition of paying five pounds annually for the maintenance of the child, it was to be void if he held the Commissioners and the citizens of the district harmless; and thus, as the Court says, he was discharged from the payment of the five pounds annually, which was the principal thing, i. e. to maintain the child; and thus the Judge adds, “ every feature of the Act was distorted.” This was Gains’ case: and we have to apply that decision to the present case.

But what is the case now before the Court — i. e. upon the face of the bond ? 1st. It appears that Gilbert is charged as the father of an illegitimate child: how charged? Was his person taken under a warrant ? That does not appear: and his words are not to be taken in their extreme and possible sense, in order to annul his contract — on the contrary, if possible, the terns are to be so construed as to enforce its just and moral provisions. We are not then to assume a compulsory warrant, because there might have been one. But even supposing the defendant had been arrested under a warrant, it by no means follows that his bond was necessarily compulsory, or induced by his arrest; that was actually the situation of Folk when he compromised and gave the note to Mrs. Moyer, which ,was held good and binding. Men under arrest often make legal contracts. The arrest was not the turning point in Gains’ case. But being arrested, he was compelled to sign a bond, absurd upon its face, and neither required by the Act nor good at common law — a bond for purposes which, as the Judge says, “he was neither naturally nor morally bound to perform.” But returning to the present case. 2d. The bond is given to the Commissioners of the Poor, but for the maintenance of Gilbert’s imputed child. Why a man may not give such a bond voluntarily to the Commissioners of the Poor, as well as a promissory note to the mother or any one else, having the care or practical supervision of the child, I cannot perceive. The bond too is in the very amount required by the Act of 1839, and in the spirit and with the end and object of the Bastardy Acts — i. e. to support the child. How then can the Court conclude that the bond of Gilbert was like that of Gains, legally void upon its face — i. e. void by its own terms ? On the contrary, it appears on its face to be the very bond supposed by the Court in Gains’ case to be good and binding— i. e. a bond voluntarily given to the Commissioners for the maintenance of the child — which is the present case. The motion is therefore granted and the demurrer overruled.

O’Neall, J. EvaNs, J. and Withers, J. concurred.

Motion granted.  