Opinion of the Court-Prim, J.

The allegations of the separate answer were put in issue by stipulation of the parties without replication.

The bill of exceptions shows that at the trial the defendants introduced the testimony of several witness tending to prove that the plaintiff, Eva Page, was a lewd and unchaste woman. After the defendants had rested their case, the plaintiffs then called the following witnesses for the purpose of proving that the general reputation of the plaintiff, Eva Page, for chastity, was good.

Mr. Stevens, who testified that he knew the plaintiff, Eva Page, intimately, and had so known her since 1875, but that she had not lived in his immediate neighborhood since that year. The counsel for the plaintiffs then asked the witness the following question: "What is her reputation for chastity in your neighborhood?" To that question the counsel for the defendants objected, for the reason it had not been shown by the previous testimony of the witness that he knew what her general reputation for chastity was, and was therefore incompetent to testify on that subject. The court overruled the objection, and the defendants, by their counsel, duly excepted, and the exception was allowed by the court.

The same interrogatory was put to several other witnesses, to which they replied to the same effect. Exceptions were then and there duly taken and allowed by the court. The admission of the testimony of these witnesses is assigned as error, for the reason that they had not been asked, nor had they testified that they knew what the general reputation of the person in question, for chastity, was. This assignment we think is well taken. While it has been held in some cases that the preliminary questions as to the knowledge of the reputation need not be put, we think the point has been settled the other way by the later and better authorities. Mr. Greenleaf says: "The regular mode of examining into the general reputation is to inquire of the witness whether he knows the general reputation of the person in question. among his neighbors, and what that reputation is." (1 Greenleaf on Evidence, sec. 461.) Thus it will be seen that the question excepted to is objectionable in two particulars:

Points decided.

1. The witnesses were asked what the reputation of the party, for chastity, was, without first being asked whether they knew what that reputation was. 2. They were asked as to her reputation instead of her general reputation among her neighbors.

The next alleged error is as to the ninth instruction upon the question of damages. It is claimed that the court erred in failing to give to the jury any definite rule as to the measure of damages. If appellants desired special instructions upon that subject they should have presented such instructions as they desired with a request that they be submitted to the consideration of the jury. Then a refusal to instruct as requested could have been assigned as error. This assignment we think is not well taken.

The next assignment of error complained of is as to the instructions given at the request of the respondents, as follows: "The character of evidence to prove the justification must be such as would warrant them (the jury) in convicting of the crime charged." This instruction refers to the quality and not to the quantity or degree of evidence necessary to prove the justification, and is therefore not objectionable. It would have been better perhaps to have used language more definite in its meaning.

The court having erred in admitting the witnesses to testify as to reputation as alleged in the first assignment, the judgment should be reversed, and the case remanded to the court below for a new trial.

JOSEPH E. BENTLEY ET AL., APPELLANTS, v. REBECCA F. JONES ET AL., RESPONDENTS.

APPEAL-EXECUTION-MAY BE RECALLED, WHEN.-When an appeal has been taken from a judgment and undertaking given for a stay of proceedings, an execution issued thereon may be recalled and set aside by the circuit court on motion.

IDEM EVIDENCE NOT PRODUCED IN LOWER COURT.-No paper or other evidence not produced at the hearing of the motion in the circuit court can be considered by the appellate court.

APPEAL from Linn County. The facts are stated in the opinion.

Opinion of the Court-Prim, J.

S. A. Johns and T. P. Hackleman, for appellants.

J. K. Weatherford and N. B. Humphreys, for respondents.

By the Court, PRIM, J.:

This is a motion by respondents before Judge Harding, at chambers, to set aside an execution issued on a judgment in favor of appellants and against respondents for one dollar damages, and for two hundred and thirteen dollars and eighty cents, costs and disbursements, for the reason that an appeal had been taken to the supreme court by respondents, whereby proceedings were stayed as provided by law. The motion was heard in term time, and allowed, and an order made setting aside the execution, and for costs and disbursements. From this order and judgment an appeal has been taken to this court.

On looking into the transcript it will be seen that the motion was based upon the affidavit of John C. Elder, one of the respondents. The order setting aside the execution, it appears was based upon that affidavit, as the record fails to show that any other paper was produced by either side. Appellants having failed, on the hearing of the motion, to controvert the facts stated in the motion and affidavit upon which it was based, they were and should have been treated. as true. The material provisions of the undertaking on appeal as set out in said affidavit, were sufficient, if true, to sustain the motion. If not properly set out therein, they should have been controverted by the other side, by counter affidavits or by producing a certified copy of the original undertaking on file. Respondents having failed to avail themselves of this privilege at the hearing of the motion, the court very properly held that the execution had been improperly issued and should be recalled.

But it appears that the original undertaking filed on the appeal has been sent up with the transcript to this court, and upon inspection it will be seen that its provisions were insufficient to operate as a stay of execution. It is claimed, however, that this paper is improperly here and should not be considered by this court. This position we are of opin

Statement of Facts.

ion is correct. This paper properly belongs to the files in the original case, and has no connection whatever with the transcript in this proceeding unless produced in evidence at the hearing, and if produced in evidence, a certified copy should have been used instead of the original. But there being no bill of exceptions nor anything in the record indicating that it was used in the court below, it can not be used here.

The judgment of the court below is affirmed with costs.

BRIDGET NINE, APPELLANT, v. LEWIS M. STARR,
RESPONDENT.

BASTARD CHILD-AGREEMENT FOR SUPPORT-CONSIDERATION FOR.-Where
the putative father of a bastard child agrees with the mother that he will
pay her for boarding and clothing such child, such contract is without
consideration, and cannot be legally enforced. The mother of such child
is its guardian and bound to maintain it.

IDEM.-A moral obligation unsupported by any pre-existing legal obligation is not a sufficient consideration to support an express contract that can be enforced at law.

APPEAL from Multnomah County.

This is an action to recover upon an express contract for the maintenance of the infant illegitimate son of the parties. The appellant alleges that in August, 1867, she gave birth to an illegitimate child, of which the respondent is the natural father; that at that time and prior thereto the appellant and respondent cohabited together but were not married, and that they so continued until July, 1868, when she informed the respondent of her determination to withdraw from the unlawful association with him, which she then did; that thereupon he requested her to keep, support, clothe, and educate the child, and provide medical attention for it when necessary, and to continue such support and care for nine or ten months, or until the respondent could make arrangements to take it for himself and send it to his sister in California, where he intended to have it kept and raised; that he promised to pay therefor so much as the ser

43

Opinion of the Court-Boise, J.

vices were reasonably worth, and all expenses necessarily incurred by the appellant in caring for the child; that in consideration of these promises she kept and cared for the child, and paid out for medical treatment and medicines for it six hundred dollars; and that her services and other necessary expenditures for the child are reasonably worth seven thousand dollars.

To this complaint a demurrer was filed, which was sustained by the court, and the respondent had judgment for his costs and disbursements. From this judgment this appeal is taken.

Yocum & Clarno, for appellant.

Dolph, Bronaugh, Dolph & Simon, for respondent,

By the Court, BOISE, J.:

The first question arising on the demurrer in this action is as to the sufficiency of the allegations of the complaint to constitute a cause of action. The contract relied on is an agreement made by the alleged father of a bastard child with the mother, whereby he agreed to pay her for its maintenance. It is claimed by the respondent that this alleged agreement is without consideration and void, for the reason that the putative father of a bastard child is not legally bound to support it, but that this obligation legally devolves on the mother. We think that whatever the moral obligation of a putative father may be to support such a child, no legal obligation attaches to him in that behalf, and that this legal obligation is upon the mother. Tyler on Infancy and Coverture (p. 285), lays down the rule that the mother is the natural guardian of such a child, and is bound to maintain it, and we think such is the law. When one agrees to pay another for a service which that other is legally bound to perform, the contract is without consideration, and can not be enforced. (Parsons on Contracts, 424.)

It may be truly said that the respondent was under a moral obligation to contribute to the support of this illegitimate child, and it is insisted that this is a sufficient consideration to support this promise. But to constitute a moral