live: Provided also that no part of the moneys paid by such putative father in pursuance of such order shall at any time be paid to the mother of such bastard child, nor in any way be applied to the maintenance and support of such mother." The mode of proceeding is somewhat modified by the 7 & 8 Vict. c. 101, ss. 1, 2, 3, and 6. The 2d section provides that "any single woman who may be with child, or who may be delivered of a bastard child after the passing of this act, or who has been delivered of a bastard child within the period of six calendar months before the passing of this act, may either before the birth or at any time within twelve months from the birth of such child, or at any time thereafter, upon proof that the man alleged to be the father of such child has within *the twelve months next after the birth of such child paid money for its maintenance, make application to any one justice of the [*227 peace acting for the petty sessional division of the county, or for the city, borough, or place in which she may reside, for a summons to be served on the man alleged by her to be the father of such child: and if such application be made before the birth of the child, the woman shall make a deposition upon oath stating who is the father of such child, and such justice of the peace shall thereupon issue his summons to the person alleged to be the father of such child to appear at a petty session to be holden after the expiration of six days at least for the petty sessional division, city, borough, or other place in which such justice usually acts." [BYLES, J.-The mother is chargeable for sixteen years, "if of sufficient ability;" the putative father for seven years only.] Yes. There have been several comparatively recent decisions upon the construction of contracts of this sort. In Jennings v. Brown, 9 M. & W. 496,† the reputed father of an illegitimate child promised to pay the mother an annuity if she would maintain the child and keep secret their connection and it was held that the maintenance of the child was a sufficient consideration to sustain an assumpsit. The court there said: "The father might have had the child affiliated on him, and the consideration must be understood to be for ordinary provision. We think that a sufficient consideration." In Linnegar v. Hodd, 5 C. B. 437 (E. C. L. R. vol. 57), the father of an illegitimate child promised the mother, that, if she would abstain from affiliating the child, he would pay her 28. 6d. per week for its maintenance: the mother did so abstain, and suffered the time limited by the statute for obtaining an order of affiliation to expire and it was held that the promise bound the father, and that indebitatus assumpsit lay, the *consideration having been [*228 executed. So, here, it is implied that the mother will not affiliate the children, but will take upon herself their sole support and maintenance. The next case is Hicks v. Gregory, 8 C. B. 378 (E. C. L. R. vol. 65). There, the reputed father of an illegitimate child, upon ceasing to cohabit with the mother, wrote to her as follows,-"As I always promised that you and your child should never want, I will allow you 1001. a year for your life and little Emma's, to begin from the 1st of July, and to be paid quarterly, which I think will be sufficient to keep you in great comfort. Of course, if I hear of your behaving ill, or bringing up your child improperly, I will stop the allowance to you:" and it was held by Wilde, C. J., and Maule, J., that the letter disclosed a sufficient consideration for the promise to pay the annuity, viz. the mother's properly bringing up the child. It is true that Williams, J.,

did not assent to the judgment there; but the doubt which that learned judge entertained does not detract from the case as an authority here.(a) Crowhurst v. Laverack, 8 Exch. 208,† is also to a certain extent an authority for the plaintiff. There, the father and mother of an illegitimate child entered into the following agreement,-" Agreement made between L. of, &c., and S., single woman, respecting the maintenance of a certain illegitimate female child. L. agrees to pay 451. to the child, as follows,-121. to be paid down, and the remaining 337.-in four equal payments in four years,-the first of such payments, 81. 58. to be made on the 30th of December, 1836, and every succeeding 30th of December till the period of four years do expire: but, if the child should die before the four years do expire, the payments to cease at such *229] decease." The 121. was paid at the time, and the agreement was placed in the hands of the attesting witness. The mother having afterwards heard that the father had got possession of the agreement, obtained against him an affiliation order for payment of a weekly sum, which was duly paid. Subsequently the mother married, and joined with her husband in an action against the father, one count of the declaration being for necessaries supplied to the child by her before her marriage, and another count for necessaries supplied by her and her husband after their marriage: and it was held, that, if the meaning of the agreement was that the father would make the stipulated payments if the mother would support the child, then the agreement was without consideration; but that, if the meaning of it was that the mother would undertake the sole maintenance, without affiliating the child, in which case there would be a good consideration, then the agreement had not been performed. "According to the literal construction of this agreement," said Parke, B., "the defendant undertakes to pay if the female plaintiff will support the child; and, in that case, there is no consideration for the agreement, since she was by law bound to do so. If the meaning is that she will undertake the sole maintenance of the child without affiliating it, in which case there would be a good consideration, then the agreement has not been performed." [WILLES, J.-Suppose the mother and child were out of the kingdom, what would be her legal obligation? Besides, the mother is only bound by law to maintain her illegitimate offspring provided she is of sufficient ability.] mother has by the terms of the contract taken upon herself a greater obligation than was already imposed upon her by law, that will be a sufficient consideration for the defendant's promise. Then, as to the

If the

third *plea, which is based on the assumption that the death of

*230] one of the children put an end to the contract altogether. It is submitted that it could not in any case afford an answer to any part of the claim. The contract is, that, in consideration that the plaintiff at the defendant's request had undertaken the care and nurture of the children, and that she would at the request of the defendant continue to take charge of the said children and to supply them with such things as should be necessary for their use and benefit, the defendant would pay the plaintiff 50l. a year. "Children" is nomen collectivum, embracing any number there might be. Suppose, instead of children, the

(a) The doubt of Williams, J., was, that the father only intended to confer upon the plaintiff (the mother) a bounty, which he might recall at pleasure.

word had been "family," would the fact of the family being reduced to one have made any difference in the construction of the contract?

Lush, Q. C. (with whom was Tompson Chitty), contrà.(a)—There is no consideration stated in the declaration for the defendant's promise,the plaintiff's promise to maintain the children being no more than the law had already cast upon her, and there being no obli- [*231 gation legal or otherwise on the defendant. By the 71st section of the 4 & 5 W. 4, c. 76, the liability of the mother in respect of her illegitimate children is, not merely to maintain them, but to maintain them as part of her family. [COCKBURN, C. J.-That provision was not intended to apply to any but such as come within the scope of the poor laws.] The language is general. [COCKBURN, C. J.-The whole scope of the act has reference to the relief of the poor.] The ground of decision in all the cases cited on the other side, was, that there was something more to be done than merely maintaining the child. In Jennings v. Brown, part of the consideration was, that the connection should be kept secret; in Linnegar v. Hodd, that the mother would abstain from affiliating the child; and in Hicks v. Gregory, that she would conduct herself well, and bring up the child properly. Besides, in all these cases, the question arose upon the construction of the contract, and not upon demurrer. So, in Crowhurst v. Laverack, part of the consideration was assumed to be, the mother's abstaining from affiliating the child. [CROWDER, J.— Must we not construe this contract as meaning that the children were not to be affiliated?] The declaration should then have alleged that as part of the consideration. [COCKBURN, C. J.-How do you distinguish this case from Hicks v. Gregory? The very same argument might have been urged there that you are relying upon here.] Parts of the judgment in that case are very unsatisfactory. The Lord Chief Justice does not at all advert to the liability of the mother to maintain the child. That case was cited in Crowhurst v. Laverack, but without producing any impression. The third plea shows that the performance on the plaintiff's part of that which was the consideration *for the [*232 defendant's promise had become impossible. [WILLES, J.-Suppose this had been an annuity given by a will in these terms, for the support of the two children, would it cease or abate by the death of one?] The Court of Chancery in that case would probably construe the devise in favour of the survivor. [WILLES, J.-Suppose there be a recognisance of bail for two, and one dies?] That is a totally different question. If a guarantee were given for a thing to be done by two, and one of them died, the guarantee would before the late Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, s. 3, be gone. The whole consideration must be performed. [COCKBURN, C. J.-Why is the payment

(a) The points marked for argument on the part of the defendant were as follows,— "That the third plea is good in law:

"That the first count of the declaration is bad in substance; that there is no sufficient consideration alleged for the defendant's promise in that count; that the children of the plaintiff being illegitmate, she was bound by law to support and maintain them, and no duty was cast upon the defendant to do so; that the moral obligation of the defendant to support the children was not a sufficient consideration for the defendant's promise:

"That, supposing the promise of the defendant to be founded on a sufficient consideration, then, as the consideration was the plaintiff's continuing to take charge of the said children, and to supply them with necessaries, the defendant was discharged from his liability by its being impossible for the plaintiff, by reason of the death of one of the said children, to perform the consideration for the defendant's promise."

of the 501. a year to be limited to the joint lives of the two children? Is the surviving child to be left destitute?] The contract is indivisible: it is an entire contract for the payment of 50l. a year for the use and benefit of the two children.

COCKBURN, C. J.-I am of opinion that the plaintiff is entitled to our judgment upon this demurrer. There are two questions,-first, whether the first count of the declaration discloses a good cause of action,secondly, whether, assuming that it does, the third plea affords an answer to it. The action is brought to recover certain instalments of an annuity. The declaration, after stating that the plaintiff was the mother of two illegitimate children of which the defendant was the father, goes on to allege that the plaintiff, having relinquished and given up all cohabitation and immoral intercourse with the defendant, had, at the request of the defendant, undertaken and then had the care and nurture of the said children, and that thereupon, in "consideration of the premises, and that the plaintiff would, at the request of the defendant, continue to take charge of the said children and to supply them *233] *with such things as should be necessary for their use and benefit, he the defendant then promised the plaintiff, she then being so sole and unmarried as aforesaid, that he the defendant would pay or cause to be paid to the plaintiff the sum of 50l. a year for and during a term which has not yet expired." It is contended that there was no consideration for this promise of the defendant, inasmuch as the law had already imposed upon the plaintiff an obligation to do that which is set forth as the consideration, viz., her having undertaken the care and nurture of the children: and, in support of this objection, reference has been made to the statute for the relief of the poor, 4 & 5 W. 4, c. 76, the 71st and 72d sections of which provide that the mother of a bastard child, so long as she remains unmarried or a widow, is bound to maintain it as part of her family until the age of sixteen or marriage, and define the extent of the liability of the putative father. But, when we look into the statutes, we find that this liability of the mother is to be taken with this qualification, that she is of ability to maintain the child. If she be not of ability, the obligation as respects her becomes ineffectual and inoperative, and the maintenance of the child thus left destitute is cast upon the parish. Besides, the woman has a right to call upon the father to contribute to the support of his illegitimate offspring. Now, this contract would practically have the effect of depriving her of this latter advantage. The 7 & 8 Vict. c. 101, ss. 2, 3, and 6, secure to the mother assistance from the father, provided she is unable to maintain the child herself. She may go before the magistrate for an order upon him for that purpose; but the making of that order is in the discretion of the magistrate, and is to be exercised by him with a due regard to all the circumstances of the case,-one of which circumstances would be the *ability or non-ability of the *234] mother to support the child herself; another would be, whether or not the father had already made provision for that purpose. It would be monstrous to suppose that the magistrate, when he found that the father had already made a sufficient provision for the maintenance of his illicit offspring, should allow him to be harassed by an order of affiliation. Now, if the general effect of this contract would be to deprive the mother of that means of compelling the father to make

contribution, it would throw upon her the obligation to maintain the children herself. The general effect of the contract is to cast that burthen upon her. If so, there is, independently of the statutes referred to, a good and sufficient consideration to support the defendant's promise; which may in effect be taken to be this," If you, the mother of my two illegitimate children, will continue to take charge of them, and to supply them with such things as may be necessary for their use and benefit, I will pay you 501. a year. Read in that way, I think the declaration is good, and discloses a sufficient consideration for the defendant's promise, even assuming the proposition laid down by the Court of Exchequer in Crowhurst v. Laverack, 8 Exch. 208,† to be tenable, viz., that the obligation imposed upon the mother by the poor-law acts prevents her undertaking to maintain the child from enuring as a consideration for the defendant's promise to make the stipulated payments. Then, as to the third plea, which sets up in answer to the declaration, that, after the making of the promise, and before any part of the money in the declaration claimed began to accrue or become due or payable, one of the said children died. The question is, whether, the contract being to pay 501. a year for the maintenance and support of the two children, the death of one of them necessarily puts an end to it. When *we look at the circumstances set forth in the declaration,—that [*235 the plaintiff, being the mother of two illegitimate children of which the defendant was the father, had undertaken the charge of them, and, at the defendant's request, had further undertaken to continue to take charge of and to supply them with such things as should be necessary for their support; and that the defendant, in consideration of this, promised to pay the plaintiff 50l. a year,-I do not see, that, because one of the children has died, the plaintiff, who has done all in her power to perform the contract on her part, should be deprived of the benefit of it. It is unnecessary to say how long the annuity is to be payable it may be for the plaintiff's life; but it is enough, for the purpose of the present plea, to say that it is for a term not yet expired. For these reasons, I am of opinion that a sufficient consideration is disclosed upon the face of the declaration, and that the third plea affords

no answer to it.

CROWDER, J.-I am of the same opinion. Looking at the statement of the contract in the declaration, I think there is ample consideration on the face of it to support the promise. The objection is, that the consideration is insufficient, because the plaintiff has undertaken to do no more than she was already bound to do by the 4 & 5 W. 4, c. 76, s. 71. Now, without giving any opinion as to whether or not that statute has the application to the matter in hand which it is assumed to have, it appears to me, that, taking the argument to the fullest extent,-that, by force of the 71st section, the plaintiff was already bound to maintain the children as part of her family,-the consideration here goes far beyond that, and far beyond any obligation which the law has cast upon her. She undertakes to support the children in all events and for an unlimited time. *Suppose she should become so reduced in cir[*236 cumstances as to absolve her from the obligation imposed on her by the statute, that would not relieve her from this contract, to continue to take charge of the children and to supply them with all things necessary for their use and benefit. The consideration is clearly sufficient.