Glidden v. Nelson , 15 Ill. App. 297 ( 1884 )

Lacey, J.

Three main points are made by appellant as grounds for reversal. First, that there was no sufficient proof that the husband of the appellee was dead at the time of the alleged act of bastardy. Second, that there is no preponderance of proof that the appellant was the father of appellee’s child, and thirdly, that under the proof there can be no recovery for want of an express promise on the part of the appellant to pay for the care and nurture of the child. It is claimed that there is not sufficient proof that seven years had elapsed from the time appellee last heard of her husband, to the time of the conception of the child, and hence no proof of the death of the husband; and as to the second point, that the evidence that appellant was the father of the child, rests alone on the testimony of appellee, contradicted by the positive denial of appellant, who, it is claimed, is corroborated by circumstances testified to by the appellant’s father and mother, and that this proof is insufficient.

However this may be, we have not deemed it necessary to determine, as the decision of the case must rest on the third point made.

As to the third point, we find no evidence in the record to show that the appellant at any time made any express promise to pay for the care, nurture and expenses attending the birth of the child, or for any other matter concerning the maintenance of it; nor is there any proof that the appellant ever adopted the child as his own, or that any proceedings in bastardy were ever had against appellant by appellee.

We find upon examination, that the authority cited by counsel for the appellant fully sustains the doctrine contended for, that unless the father voluntarily adopts the child as his own, which he may do with the consent of the mother, he will not become liable for its necessary maintenance. That in other cases he is not liable except on an express promise or an order of affiliation. This is the common law rule on the subject. But upon the strength of the natural or moral obligation arising out of the relation of the putative father to his child, an action at common law lies for its maintenance and support upon an express promise. Wait’s Actions and Defences, Vol. 5, p. 49; Cameron v. Baker, 1 Carrington & Payne, 268; Furillio v. Crawther, 7 Dowling & Rylands, 612; Moncrief v. Ely, 19 Wend. 405; Wiggins v. Keizer, 6 Ind. 252; 2 Kent’s Coin. 15; Schouler on Domestic Relations, 2d Ed. 384; Parsons on Con tracts, Vol. 1, page 260. In the absence of statutory regulations, the father is under no legal obligations to support his illegitimate child. The statute prescribes the only legal mode by which this support can be obtained. Simmons v. Hull, 21 Ala. 501; Marlett v. Wilson, 30 Md. 240.

This being the law, under the proof in this case there could be no cause of action, and the verdict of the jury was entirely without evidence to support it. The judgment will therefore be reversed.

Reversed.