Egleson v. Battles

26 Vt. 548 | Vt. | 1854

The opinion of the court was delivered by

Redeield, Ch. J.

The case of Graham v. Monsergh, 22 Vt. 543, fully establishes the rule, that a bastard child, born out of the state, its mother, at the time, having no domicil within the state, cannot be affiliated, or its maintenance charged upon the father, under our statute. ¥e could not probably render this more obvious by any present argument.

It is nevertheless true no doubt, that if the mother is, at the time of the birth, Iona fide an inhabitant of the state, the birth of the child by accident, or during a temporary absence, occurring out of the state, will not deprive her of remedy, under the statute, against the father.

But the question of residence was not, in the present case, submitted to the jury. And the testimony, as detailed in the bill of exceptions, although not perhaps altogether conclusive, would seem to indicate certainly, that the plaintiff’s residence was probably in Canada, at the time of the birth of the child.

There would probably be no question, that her having lived at Lee’s, from May, 1851, till July, 1852, and within a few weeks after she first went there, having removed all her effects to that place, that was her residence until July. She then went to Derby and remained “ a short time, three or four weeks.” But whether she removed her effects to Derby, or not, does not appear. And if she did, whether they remained behind her when she went again to Stanstead, where the child was born, at Mrs. Perry’s is not stated.

If she never removed her effects into Derby, after her residence at Lee’s, or if they were carried with her to Mrs. Perry’s, it would seem very difficult to make out any residence in Derby, after she left Lee’s, until after the birth of the child, except while she remained in Derby, unless a mere intention, to go there to reside, as soon as she could find a place to live, constitutes a residence. And the case of Jamaica v. Townshend, 19 Vt. 267, seems to settle that question against the plaintiff. But the facts may be more fully developed on a future trial, and may make a case for the plaintiff, and the present testimony might "have entitled her to go to the jury on the question of present residence at the birth of the child.

Judgment reversed, and case remanded.