27 Ind. 381 | Ind. | 1866
Suit by Mary Mother and her husband against Abshire, on a promise of the latter to pay the appellee, Mary, one hundred dollars, in consideration that she would not sue him in bastardy and produce a disturbance in his family. A demurrer to the complaint was overruled, and this is the first error assigned. It is urged that no sufficient consideration is shown for the promise, and that the bringing of this suit is of itself a failure of the consideration. Neither of these positions can be maintained. The consideration was sufficient. Harter et al. v. Johnson, 16 Ind. 271. The suit is for a failure to pay the one hun
. The promise was made in November, 1861, to pay after harvest. The suit was commenced in 1864. It is claimed that the complaint is defective, in not averring that the time of payment had passed. There is nothing in this objection. The court will take notice of seed time and harvest.
The ninth paragraph of the answer of the defendant sets up that the alleged seduction took place during coverture, and that the promise was made to Mary alone, without the knowledge or consent of the husband, and while she was his lawful wife. The plaintiff replied, that at the time of the promise, she was, and had been for more than a year, living separate from her said husband, and is yet living separate from him; that she is the meritorious cause of the promise, and that it would survive to her; that her husband had no interest in it, and could not control it. A demurrer was overruled to this reply, and this is the second error assigned.
Under the statute, a married woman may prosecute for bastai’dy. 2 G. & H., § 1, p. 624. The mother alone is authorized to institute the prosecution. Harter et al. v. Johnson, supra. Under the facts stated in the reply, a promise made to her is undoubtedly good, without the concurrence of the husband. The defendant had the full benefit of the promise not to sue in bastardy.- He cannot now be permitted to say that that promise was void, and therefore no consideration for his agreement to pay the one hundred dollars. This would be a fraud.
This suit was commenced in the name of Mary Gard and John Gard, and on the disclosure of the fact in evidence that William P. Mather, and not John Gard, was the husband of the said Mary, the court permitted the names of Mary Gard and John Gard to be stricken out of the complaint, and the names of the appellees to be substituted. This action of the court, we think, was warranted by the statute.
A motion was made to suppress the thirteenth and fourteenth interrogatories, and the answers thereto, of the deposition of the appellee Mary. This motion was overruled, and this was one of the causes assigned for a new trial. The answer to the thirteenth interrogatory was immaterial. It simply states that the appellant offered at one time to compromise this claim, by giving forty-five dollars: twenty dollars at the time of the offer, and his note for the residue. The fourteenth question is this: “Did he, or not, in any conversation you had with him, at any time, deny the paternity of the child; or if he.ever acknowledged it to be his child, say so ? ” The answer is this: “ He never denied the paternity of the child, but acknowledged it to be his child, when at my house in Winchester.” The witness had sworn positively that the appellant was the father of the child. If the jury believed her, this question was put to rest, independent of the acknowledgment of the defendant. We cannot see that the question and answer objected to could add anything to the weight of the evidence on this
The judgment is affirmed, with costs.