1842. JENNINGS v. BROWN. Exch. of Pleas, 1841, a large sum of money, to wit, the sum of £180 of the said yearly allowance of £60, for twelve quarters of a year, which then, and as well after the said death of the said A. B. B. as after the said intermarriage of the plaintiffs had elapsed, became due and payable to the plaintiffs under and by virtue of the said promise of the said A. B. B. in that behalf; nevertheless the defendants, executors as aforesaid, not regarding the said promise of the said A. B. B., have not at any time paid to the plaintiffs the said sum of £180, or any part thereof, (although often requested so to do), but have hitherto wholly neglected and refused so to do, and the same is still wholly due and unpaid, contrary to the said promise of the said A. B. B. in that behalf made as aforesaid. The defendants pleaded non assumpserunt, and other pleas; traversing the seduction; that the child was begotten by the testator; alleging that the plaintiff Mary had not, at the time of making the promise, relinquished cohabitation with the plaintiff; nor had she undertaken nor had the care or nurture of the child; nor had she continued to take charge of the child, nor kept secret the fact that the testator did seduce the plaintiff Mary, and was the father of the child. But all these pleas, on which issues were taken, were negatived by the finding of the jury. The cause was tried before Rolfe, B., at the London sittings in this Term. It appeared that the action was brought to recover twelve quarterly payments of an annuity of £60 a year, under the following circumstances. The testator, in the year 1833, became acquainted with the plaintiff Mary, a servant in his establishment, and the result was the birth of a child in the month of November in that year, which, by a letter to her father, he acknowledged himself to be the father of, and said that she and her child were amply provided for. It appeared that he paid her an annuity of £60 a year, and refrained from further criminal intercourse with her. Shortly 1842. after, the plaintiff Mary entertained intentions of getting Exch. of Pleas, married, and applied to the testator for the purpose of getting the annuity previously settled upon her. In reply to which the testator wrote her the following letter: Dec. 31st, 1834. "MARY, "I received your letter of yesterday, and feel a little annoyed at the distrust you entertain for my not providing for your child while I live, and after my decease. You seem to have got some would-be cunning adviser, which, if you do not mind, will cause you to lose a friend, instead of making one. Your father, by writing an imprudent letter, was very near doing you harm. When I spoke of an annuity, I did not consider that, from your youth and good health, the office would require (to allow the sum of £60 a year) a large deposit of some thousands, and which, were you to die the day after, would be entirely thrown away, besides its being a sum I am neither willing nor able to lay down." And after stating other matters, and that her marrying would not alter his intentions, he adds :: "Thus, then, as long as your future conduct is correct, and the situation you have been placed in remains a secret, my allowance to you of £60 a year will be paid with punctuality; but I must remind you, were it to become known, the allowance of a magistrate would be 4s. 6d. or 58. per week, which is £13 per annum. Under these circumstances, I should recommend you to consider me your friend, and place that confidence in me which you never had reason to doubt. Should you marry, for your mutual happiness, I would never see you but in the presence of your husband." Shortly after this the plaintiffs were married, and a letter of congratulation, dated January 31, 1835, was written to her by the testator, which contained, amongst others, JENNINGS v. BROWN. 1842. Exch. of Pleas, the following passage:-"The allowance I told you I would make for the maintenance of Emma shall always be punctually paid quarterly." JENNINGS v. BROWN. The annuity was accordingly paid up to the testator's death, in March 1839; but his executors not feeling themselves justified in paying the annuity without the sanction of a court of law, refused to pay it, and the present action was brought. It was proved that the child was now living with the plaintiffs. The above facts having been proved, and the letters read in evidence, the counsel for the defendants objected that there was nothing in the correspondence which made out the consideration as expressed in the declaration. The learned Judge, however, overruled the objection, and the jury found a verdict for the plaintiffs, with £80 damages, leave being reserved to the defendants to move to enter a nonsuit. Humfrey now moved to enter a nonsuit accordingly. The letters written by the testator, and produced in evidence, do not shew a sufficient consideration to support the action. This is not the case of an instrument under seal, but a mere assumpsit, which is invalid for want of a consideration, and cannot be enforced either at law or in equity. Binnington v. Wallis (a) is in point. There the declaration stated that the plaintiff had cohabited with the defendant as his mistress; that it was agreed that no further immoral connexion should take place between them, and that the defendant should allow her an annuity so long as she should continue of good and virtuous life and demeanour; that afterwards, in consideration of the premises, and that the plaintiff would give up the annuity, the defendant promised to pay as much as the annuity was reasonably worth. The Court, on general demurrer, held the declaration bad. The only difference between that case (a) 4 B. & Ald. 650. 1842. JENNINGS v. BROWN. and this is, that here it is stated that the testator seduced Exch. of Pleas, her, but that makes no difference. [Parke, B.-No, that makes no difference; but here the woman has supported the child, and that is a good consideration. It is a matter of bargain, that she is to take care of the child, and to exonerate the father.] In Binnington v. Wallis there was abundant proof of consideration, for the plaintiff had given up the annuity. [Parke, B.-No, that was not part of the consideration; it was a mere moral consideration, which is nothing.] The Courts have never yet gone to the extent of holding such an agreement valid. PER CURIAM. The father might have had the child affiliated on him, and the consideration must be understood to be for ordinary provision. We think that a sufficient consideration. Rule refused. RODWELL V. PHILLIPS. THIS "Memorandum of agreement this 14th day of July, (a) See the declaration more fully set forth in the judgment, post, p. 504. Jan. 31. An agreement for the sale of growing fruit is an agreement for the sale of an interest in land, and if of the value of £20 requires a stamp. 1842. RODWELL Exch. of Pleas, 1840. Thomas Phillips agrees to sell to Mr. Rodwell all the crops of fruit and vegetables of the upper portion of the garden, from the large pear trees, for the sum of £30; and Lionel Rodwell agrees to buy the same at the aforesaid price, and has paid £1 deposit. Witness our hands. บ. PHILLIPS. "THOMAS PHILLIPS. LIONEL RODWELL." It was objected for the defendant, that this was the sale of an interest in land, within the meaning of the Stamp Act, 55 Geo. 3, c. 184, sched. Part I., title "Conveyance," and therefore required a stamp; and the Lord Chief Baron, being of that opinion, directed a nonsuit. In Trinity Term following, Shee, Serjt., obtained a rule nisi for a new trial, on the ground of misdirection, against which, in Michaelmas Term (Nov. 23), E. James shewed cause.-This is a sale of an interest in land, and the agreement, therefore, was not admissible without a stamp. The cases on this subject are all collected and reviewed in Jones v. Flint (a); and throughout the judgment in that case, the same distinction is taken, as in Evans v. Roberts (b), between a contract for the sale of fructus industriales, and of things which are the natural product of the earth, as is fruit. Growing fruit goes to the heir-at-law, and is not seizable by the sheriff. The purchase of a growing crop of grass, to be mown and made into hay by the vendee, is an interest in land: Crosby v. Wadsworth (c); Carrington v. Roots (d). Here the plaintiff's declaration itself sets up an interest in the land, entitling him to enter and take away the fruit and vegetables. The property vested by the contract itself, and the plaintiff might, if he chose, have entered and gathered them unripe. (a) 10 Ad. & Ell. 753; 2 P. & D. 594. (c) 6 East, 602. |