Vetten v. Wallace

Reeves, J. By the demurrer it was admitted that the plaintiff in error was the mother of the alleged bastard child, and that she was at the time of the birth of the child the wife of Henry Koch, to whom she was married March 11, 1873. The child was born, according to the averments of the plea, in wedlock, between plaintiff in error and Henry Koch. If defendant in error was the father of the child, plaintiff in error must have been guilty of adultery. Taking the declaration and plea together, it is manifest that the consideration for the promise alleged in the declaration was the fact that the plaintiff in error was the mother, and defendant in error was the father of the child. The father of a bastard at common law was not under any legal obligation to support his illegitimate child. He is only made liable under our statute where the mother is an unmarried woman. The alleged bastard child, the support of which was the basis of the alleged promise by defendant in error to pay, was the result of the criminal intimacy of plaintiff in error, a married woman, with defendant in error, so that the consideration of the promise alleged is shown by the plea to involve a criminal offense on the part of the person to whom the promise was made. The doing of an unlawful act, or the consequence of an unlawful act, can not be made the consideration of a contract. As was said in Drennan v. Douglas, 102 Ill. 341, a married woman can not make her own violation of duty and law the foundation for a consideration to sup port a promise. Again, a married woman will not be permitted to bastardize her own offspring, born in wedlock. “ For reasons of public decency and morality, a married woman can not say she had no intercourse with her husband, and that her offspring is spurious.” 1 Greenleaf on Ev., Sec. 344. This prohibition does not apply to her competency as a witness, but is a rule of law governing any right of action which she may set up, involving such bastardism of her own offspring, born in wedlock. The presumption is that a child born in wedlock is legitimate, and this presumption the mother will not be heard to deny. 1 Greenleaf on Ev., Sec. 283. It is urged that the plea should have alleged that the plaintiff in error was lawfully married to Henry Koch. There can be no marriage unless it be a lawful one, hence the allegation that plaintiff in error was married to Henry Koch was equivalent to saying she was lawfully so married. A traverse of the plea would have enabled plaintiff in error to show that at the time of the birth of the child she was not the wife of Henry Koch. This suit was brought to recover for necessaries furnished by plaintiff in error to the child. These necessaries it was the duty of her and her husband under the law to furnish. This case differs from Todd v. Weber, 95 N. Y. 181, in this, that the mother of the child was an unmarried woman, and the recovery was had by persons who were under no legal obligations to support the child, and was based upon the fact that the putative father recognized the child as-his, and promised these people if they would care for and support the child, he would pay them for such care and support. It is urged that by the plea, defendant in error admitted he was the father of the child, as averred in the declaration. If the plea was true, then this allegation in the declaration was not true; at least the plaintiff would not be heard to make such an allegation. When the defendant by his plea showed that plaintiff was the mother of the child, and was at the time it was born the wife of Henry Koch, this effectually, under the law, met the allegation of the declaration that defendant was the father of the child. The judgment of the Circuit Court is affirmed. Judgment affirmed.