Davis v. Herrington

¶11. Bastard child — Father’s port^ConsidMa’S10n' By the common law, the mother, and not the putative father, of an illegitimate child is bound to maintain it. The father’s promise to the mother to pay her for the. maintenance is a promise to pay her for doing what she is already legally bound to do, and is not enforceable because not supported by a consideration. One is not legally bound by a promise to fulfill a moral obligation where no legal obligation or liability for the thing promised ever existed. But the statute in this State confers upon the mother of a bastard child the right to compel the father to contribute to the support of their offspring by affiliating it upon him. Mansf. Dig., secs. 445 et seq. His promise to pay her for the maintenance is, therefore, based not only upon a moral obligation but also a legal liability which she may cast upon him, and that fact furnishes a consideration for his promise. Smith v. Roche, 6 C. B. (95 Eng. Com.), 223; Hargroves v. Freeman, 12 Ga., 342; Maxwell v. Campbell, 8 Ohio St., 265.

¶2The promise of the appellant’s intestate was, therefore, based upon an adequate consideration, and was enforceable against his estate.

¶32- .verbal promise to pay mitSSm™18But the statement of the appellee’s claim shows that it rr was due in annual installments, and as the promise was not in writing, the remedy upon the installments which fell due more than three years prior to the institution of this suit is barred. If the appellee will remit the amount recovered upon the installments indicated, the judgment for the residue will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial. It is so ordered.