Charity Holcomb vs. Lovinus Stimpson, 8 Vt. 141

The opinion of the court was delivered by Redvield, J. Two questions are made in this case. It is first urged that the compromise of a prosecution for charging defendant with the maintenance of a bastard child is not a good consideration for a promissory note, if in point of-face the defendant was not the father of the child. 1.

It is said if the defendant was not the father of the child, it is to be presumed there had been previous cohabitation between the parties, which remains, the sole consideration for the note.— Previous or expected future cohabitation is of itself no legal consideration, but illegal, unless connected with seduction and given on that account, not as the price of illicit cohabitation, but of lost character and abuse. But the compromise of a prosecution of this kind is clearly both on principle and authority a sufficient'consideration for a promissory note. — Haven vs. Hobbs, 1st Vt. R. p. 236.

A prosecution under the statute relating to “ bastards and bastardy,” is a civil suit (Gafforry vs. Austin Franklin Co. Jan. 1836,) and as such, the complainant, except in one event, has the same power to compromise as in any civil suit.

The statute, in denying to the mother the right to compromise, until three months after the arrest of the putative father, or after the overseers of the poor-liave commenced or controlled the prosecution, or declaring sucii compromise void or against the overseers of the poor, implicitly recognizes the right of the mother to make a valid compromise in regard to all other persons. ,2.

It is said, the testimony offered by the defendant and reject-edJjyjthe court to wit, that defendant had no access to plaintiff for more than ten months prior to the birth of the child, showed, if believed, a total failure, or rather want of consideration. No doubt a consideration of this character might be impeached by showing fraud and imposition, as that the plaintiff had never been with child and this known to her at the time of the compromise.

It might be impeached by showing that the defendant was induced to make the compromise by the improper duress of a feigned arrest, or by such threats as would, be likely to operate upon the apprehensions of a man of ordinary sagacity. But the consideration clearly could not be impeached by showing a mutual mistake in. regard to the facts as was pretended in this case. It is not necessary to say that the testimony offered by the defendant in ibis case, would not in the estimation of scientific men, render it quite certain the defendant was not the father of the child.

The question if submitted to a jury would still be one of great doubt; for as is said in Roil. Abr. “ the law does not appoint any certain time for the birth of a child,” 1 Roll. Abr. 356. And in the opinion of the celebrated Dr. Hunter solicited and obtained by the learned editor of the institutes, it is asserted that some “ women have been delivered of children more than ten callender months from the conception-" — 4 Petersdorfi. 177.

But however conclusive the testimony might be in any given-case to show the defendant could not have been the father, it is a defence which he could not be permitted to set up to a promissory note given to compromise a prosecution, which had been, or was about to be commenced against him rn good faith. The defendant was not deceived. He had all the means of knowledge which plaintiff had. If there was any mistake it was a mutual mistake. There was no condition annexed to the compromise.

If the mother had been delivered of two children, which had lived and required support, he could not have been compelled to pay any thing more, and if the child had died at the moment of birth he could not have resisted the payment of the sum-stipulated. It is not true that here has been a failure of consideration. For the notes are not given as the payment of a certain and fixed liability, but for the compromise of a doubtful claim, one object undoubtedly was to get rid of the prosecution, both in its natural and accidental consequences.

This was all defendant expected and all he expected by the compromise, and was the consideration of the note now in suit. This consideration has not failed. There is no pretence the plaintiff acted in bad faith, or can now obtain-compensation against another. This compromise will be such a declaration of the paternity of her child, as will effectually defeat any attempt to charge it upon another. The defendant too fias admitted himself the father, by the compromise, and he cannot now be permitted to contest that fact. The surceasing of a suit even foirn time is always a good consideration for a promise.

So also is the compromise of a doubtful claim. And in the latter case the defendant cannot be permitted to resist a recovery on the promise, on the ground, that he was not liable, that facts have now transpired, which ’wili enable him successfully to resist the claim. This would be to disregard the compromise of every doubtful claim, and open every dispute put at rest by the agreement of the parties, for fresh litigation. It would in fact render it impossible for the parties ever effectually to compromise a matter by contract or agreement.

In the present case it will result in a trial upon the merits of the original controversy, with this disadvantage to the plaintiff that her testimony, which the statute makes competent only on the trial of the issue of chargeable or not, could not be received. Such a doctrine could not for a moment be admitted. The case of Shaw vs. Whittemore, Peaks cases 24, abridged 4 Petersd. 185 js almost directly in point. There the defendant had allowed the mother seven shillings per week for the maintenance of the child, which sum he had paid regularly fo^ some time.

On the trial, after proof of defendant’s agreement to pay' seven shillings, he offered to show that he had now discovered “ the right father” of the ehild. Lord Kenyon said the testimony could not be received. In New-York it has been held (Steele vs.

White 2. 478.) “ That when a person interested in a suit voluntarily compromises the same without any fraud or imposition practiced upon him he cannot be released from the compromise, (even in equity) although he shows it was not beneficial to him or that he had the right to recover in the suit in law.” The same principle had been repeatedly recognized in their courts of law before.

The decisions which have been had upon wagers at common • law recognize the same general principle in one particular, that although the event had actually transpired, still if it was unknown to the parties, anda wager was laid upon the event, it was a good wager. — Boman vs. Boman, 8 Conn 409. — Earl of March vs. Piggott, 5 Bur. 2802.- In Pennsylvania (O’Keason vs. Barclay, 2 Penn.

R. 531,) it has been decided that the compromise of an action of slander in which the words laid in the declaration were not actionable, is a good consideration for a note for the payment of money. ■ Indeed it is a principle too obvious to the perceptions of all, of too universal application, and too generally recognized by adjudicated cases; to require further discussion. This note being given before the birth of the child and upon a contingent liability, a case might occur in which the defendant would be exonerated from all liability on the note!

This would be the case of the overseers of the poor prosecuting, on behalf of the town and compelling the defendant, to maintain the child. Here would be a failure of the consideration unless the risk of this was to rest upon defendant by the terms of the compromise. The judgment of the county court is affirmed.