Graves v. Adams

8 Vt. 130 | Vt. | 1836

The opinion of the court was delivered by

Collamer, J.

The statute provides “that when any single woman shall be delivered of any bastard child, or shall declare herself to be with child, and that such child is likely to be born a bastard; and shall in either case, charge any person, in writing and on oath, before any justice of the peace of the same county, with having gotten her with child and being the father of such child, the said justice, on the application of such woman, shall issue his warrant,” Sic. It then goes on to provide that on the defendant’s being brought before the justice he shall enter into a recognizance pear before the county court and answer to said complaint, or be committed.

In the argument of this case much has been said by one of the plaintiff's counsel on the ground that inasmuch as this motion to quash was not interposed before the justice, it is cured or waived. This proceeding before the justice is copied from the English statute, in which the justice performs merely the part of a ministerial officer. No proceedings are had before him in a judicial capacity. He does not pass on the merits of the case. The whole proceeding before the justice is a mere proceeding to get a case before the county court; and therefore the whole must be there subject to every objection for irregularity,as the defendant has never waived these objections by proceeding to the merits of the case.

The statute clearly requires that complaint shall be made in writing on oath by the woman who is with child or who has been delivered, and that it shall charge the defendant with having gotten her with child and being the father of such child. It is here insisted that this complaint is not on oath. It is true that the complainant is not a competent certifying officer to the fact that she was sworn, and therefore, what is said in the complaint on that subject is useless ; yet it does appear by the justice’s certificate that she was in fact sworn to the complaint before the warrant issued, though the certificate of this fact was not made until afterwards.

The complaint must be in writing. This implies signing. It is not perhaps necessary it should be subscribed, but it must be signed, that is, it must be under the hand of the complainant. It must be signed by herself, or by some person for her by her authority. It seems this was never done until after the whole proceedings before the justice were closed. The woman must declare herself to be with child and charge some person with having gotten her with child and being the father of such child. This must be done in the complaint with certainty at least to a]common intent. In this complaint the plaintiff comes, and calling herself a single woman she complains not that she is with child, nor that the defendant has gotten her with child, but she says that one John Adams did beget a child on one Jane Graves, and then without alleging or suggesting that she is the same person, or that the Jane Graves who has been begotten with child had any connexion with this prosecution, the plaintiff apparently without any authority, prays process jo 'issue. In all the forms of pleading when the complainant or plaintiff uses the term one A. B. it implies some other third person, not before mentioned. It must be so taken unless otherwise explained in the count; which not being done here, the court must hold that the plaintiff cannot complain for the grievance of another person.

Judgment affirmed.