36 Vt. 735 | Vt. | 1864
This complaint for bastardy under the statute commenced in the name of the mother charges the defendant with being the father of a bastard child of which she was delivered March 31, 1860. The complainant being an inhabitant of the town of Winhall, the overseer of the poor of that town commenced the proceeding on the 10th of April, 1860, in the name of the mother, she having, signed and sworn to the complaint in usual form. The overseer at the time of the commencement of the proceeding filed with the justice a certificate under his hand of his intention to prosecute the complaint and control and manage the prosecution and that he would indemnify the complainant from all future costs in the premises. The case was tried by the court at the June Term, 1862, upon the general issue not guilty. The complainant was sworn as a witness on the part of the plaintiff, and the overseer offered to prove by her the facts set forth in the complaint. Thereupon the defendant proposed to show by her that she was at the time of the trial the
The first question which arises and which has been discussed, is as to the effect of the intermarriage of the parties upon the suit. If it had not the effect to bar the further prosecution of the suit, the other questions properly arise, whether in a proceeding of this character the husband and wife are competen^, witnesses for and against each other when they stand as adverse parties in court. We think the intermarriage of the parties terminated the suit so that it could no longer be prosecuted. It is a general principle that husband and wife cannot maintain suits at law against each other., Unless this proceeding for bastardy can be distinguished so as to form an exception to this rule, the suit after the marriage had no status in court for want of proper parties. A wife prosecuting a suit at law in her own name against her husband, is certainly a novel proceeding. No one could doubt, had this been a suit founded on contract, trespass, or other ordinary tort, but that the marriage of the parties would have terminated the right to prosecute it. We see nothing in the nature or character of this proceeding to take the case out of this general rule. It is true, the right to maintain such suit by a female is created by statute. The right and the remedy both depend on the statute, yet the general principles and policy of
There is another ground on which the defendant’s counsel claim to rest the case, that is, that the facts stated in the exceptions legitimate the child. The statute provides that when the parents of an illegitimate child shaE intermarry' after the birth of such child, the child if recognized by the father as his child, shall be considered legitimate to all intents and purposes, and be capable of inheriting. If it sufficiently appeared from the case that the defendant after the marriage recognized the child as his, the decision of the court might be sustained on this ground, as the judgment should not be reversed for excluding the evidence if the result would have been the same had it been received. But we do not think that fact sufficiently appears to warrant the resting of the case on that ground. The other ground, however, is sufficient to sustain the decision of the court unless there is some objection to the form of the judgment. The case states that the court rendered judgment for the defendant. It would have been more regular to have treated the suit as abated by the intermarriage of the parties. It does not appear that the court allowed any costs to the defendant, and if not, this error in the form of the entry cannot operate to the prejudice of the other party. Besides, this judgment is not against the town or overseer, but against the complainant, and it is the overseer and not the complainant that excepts. As no point is made by the plaintiff’s counsel upon the form of the judgment, and as we cannot see that the town can be prejudiced by the particular form of the entry, there is no reason for reversing the judgment for this cause.
Judgment affirmed.