Smith v Roche
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1859 |
| Date | 27 April 1859 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 440
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 237; 5 Jur. N. S. 918. See Pegge v. Lampeter Union, 1872-74, L. R. 7 C. P. 371; L. R. 9 C. P. 373.
[223] smith . roche. April 27th, 1869. [S. C. 28 L. J. C. P. 237; 5 jut. N. S. 'J18. See 1'egge v. Lamfieler Union, 1872-74, L. R. 7 C. P. 371; L. R. 9 C. I1. 373.] \ The!declaration ata,tcd that the plaintiff was the mother of two illegitimate children of which the; defendant was the father, that the plaintiff, having relinquished all immoral intercourse with the defendant, had at his request undertaken and then had the car and nurture of the said children, and that, in consideration of thg premises, and that the plaintiff would, at the request of the defendant, continue to take charge df the said children, and to supply them with such things as should be necessary for their use and benefit, he the defendant promised the plaintiff to pay her the sum of 501. a year for and during a time not yet expired : -Held, that the declaration disclosed a sufficient consideration for the defendant's promise.--The third plea stated, that, after the makingof the promise and before any part of the money 6 C. B. (IT. 3.) ISA. SMITH '. ROOHE 441 claimed by the plaintiff began to accrue or become due or payable, one of the said children died :-Held, no answer to the action. This was an action for the breach of an agreement to pay for the support.of the defendant's illegitimate children. The declaration stated, that the plaintiff, being then sole and unmarried, and having theretofore always conducted herself with chastity aud decorum, was seduced by the defendant, who then debauched and carnally knew the plaintiff, she then being so sole and unmarried as aforesaid, and by means of which said seduction and carnal knowledge the said plaintiff then became and was pregnant, and afterwards, and before fche making of the promises thereinafter mentioned, was delivered of a bastard child, to wit, a daughter, which said child had been aud was begotten by the defendant, and afterwards, and before the making of the promises thereinafter mentioned, was delivered of another bastard child, to wit, a son, which said last-mentioned child had been and was begotten by the said defendant, aud is now living: that afterwards, and before the making of the promises thereinafter mentioned, the said plaintiff, being so sole aad unmarried as aforesaid, and having wholly relinquished and given up all cohabitation and immoral intercourse with the defendant, bad, at the request of the defendant, undertaken and then had the care and nurture of the said children; and thereupon, afterwards, in consideration of the premises, and that the plaintiff would, at the request of the defendant, continue to take charge of the said children, aud to supply them with such things as should be ne-[224]-cessary for their use and benefit, he the defendant then promised the plaintiff, she then being so sole and unmarried us aforesaid, that he the defendant should on would pay or cause to be paid to the plaintiff the sum of 501. a year for and during a term -wh/ich has not yet expired (a), to be paid quarterly, that is to say, on the 1st day of February, the 1st day of May, the 1st day of August, and the 1st day of November in each and every year during the time aforesaid, the first of such quarterly payments to be due and payable on the 1st da,y of; February, 1853: Averment, that, although the plaintiff had doue all things necessary, and all things had occurred and happened, and all conditions had been performed, necessary to entitle the plaintiff to have the defendant to pay to the plaintiff the said sum of 501. a year by the quarterly payments therein before in that behalf mentioned ; yet the plaintiff in fact said, that afterwards, aud before the commencement of this suit, a large sum of money, to wit, the sum of 621. 10s. of the said yearly aum of 501., for one year and one quarter of another year, which elapsed before the commencement of this suit, became and was due and payable fiom the defendant ta thfl plaintiff under and by virtue of the said promise of the defendant in that behalf, yet the defendant had not at any time paid the same, or any part thereof, to the plaintiff, and the said sum of 621. 10s. and every part thereof remained wholly due and unpaid. Tkiid plea, to tha first count,-that, after the making of the promise in that count mentioned, and before any part of the money in that count claimed by the plaintiff began to accrue or become due or payable, one of the said children died. [325] Demurrer1, to the third plea, the ground of demurrer stated in the margin beingi -" thakthie death of the said child does not afford any answer to the defendant's promise to pay tie yearly sum for and during the life of the plaintiff." Joinder. Hannan (with whom was Petersdorff, Serjt.), in support of the demurrer. The declaration discloses a sufficient consideration for the defendant's promise. It will he contended on the part of the defendant that there was no consideration for the defendant's promise to pay the 501. a year, inasmuch as the law casts upon the mother the duty and obligation of supporting her illegitimate offspring. The 71 st section of the Poor Law Amendment Act, 4 & 5 VV. 4, c. 70, enacted that "every child which shall be born a bastaitl after the passing of this act shall have and follow the settlement of the mother of such child until such child shall attain the age ot sixteen, or shall acquire a settlement in its own right, atid such mother, so long as she shall be unmarried or a widow, shall be bound to maintain such child as a part of her family until such child shall, attain: the jage of sixteen; and all relief granted to such child while under the age of sixteen shall be considered as granted to such mother: Provided always that (3) These words were at the trial substituted for the following,-"during the life of the plaintiff." 4*2 SMITH V. ROOM E 6 C. B. (N. S.) 2. such liability of such mother as aforesaid shall cease on the marriage of such child, if a female." And s. 72 enacted, that, " when any child shall hereafter be bom a bastard, and shall by reason of the inability of the mother of such child to provide for its maintenance become chargeable to any parish, the overseers or guardians of such pariah, or the guardians of any union in which such parish may be...
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