7 Conn. 286 | Conn. | 1828
The objections to the judgment of the county court, and by reason of which, it is insisted, the judgment ought to be reversed, will be briefly noticed, in the order taken by the plaintiff in error.
1. The original complaint is insufficient, because it is not alleged, that the town of Plainfield was interested in the support of the illegitimate child. It is said, according to the case of Morse v. State, 6 Conn. Rep. 9. an indictment or information upon a statute must state all the facts necessary to bring the defendant precisely within the statute There can be no
2. The act is not alleged to be “ contra formara statuti.” To give any force to this objection, it must appear, that the proceedings are not founded upon the statute, but rest upon the common law ; and as this is not an offence at common law, but is merely so by statute, it should have so appeared. The complaint is not only apparently, but by an express averment, instituted upon the statute. Thus, after stating the facts, it concludes : “ Whereupon the said town of Plainfield, by their selectmen, pray process against the said William Hopkins, that he may be arrested, and brought before proper authority, and be dealt with, as hy the statute, in such case made and provided, is directed.” The statute does not prohibit the begetting of a bastard child ; it simply provides how it shall be supported, and gives to the town interested in its support a peculiar remedy for indemnity. That remedy is here strictly, and “eo nom-ine.’’ pursued.
3. This is not such an action as the statute authorizes. In support of this objection Hinman v. Taylor, 2 Conn. Rep. 360. is cited. Nothing appears in that case, except that a process upon the statute is a civil suit. It is not there declared what shall be the form of the process ; nor are we furnished by the counsel with any form. It is believed, that the process here adopted is the only one known in practice ; and no solid reasons are suggested, why it is not entirely correct. These objections, therefore, fail.
Sundry matters were pleaded in abatement of this process, before the county court, to which it was returned. The order of these will, in the consideration of them, be reversed.
1. The bond ordered to be given, and the bond given, was to the treasurer of the town of Plainfield, whereas the bond
Two obvious and sufficient answers to this ground of abatement present themselves.
First, the bond was, in fact, and inlaw, ordered and given to the town of Plainfield, the adverse party. A bond to the town treasurer, is a bond to the town, and to no one else. Bradley v. Baldwin, 5 Conn. Rep. 288. A bond in this case could only be to the adverse party. Secondly, if it were not so, is this a ground of abatement 1 What if the defendant were not to be affected by the bond, is the process, therefore, to abate ; and even, if it were a cause of abatement, in any case, could the defendant be heard to allege it ? Can he be injured or affected by it ?
2. The justice of the peace before w hom the defendant in the process was brought, upon a hearing, found him guilty; whereas by the directions of the statute, he was authorized to order him to be recognized to appear before the county court, if he found probable cause . ~ By the record of the justice, it appears, that the defendant before him pleaded “ not guilty and he answered the plea in his judgment, by finding him guilty. It was not necessary, that the defendant should have pleaded at all; but as he did, and was found guilty, it is not easy to see why the justice should not bind him over to the county court. He found more than probable, even actual cause. The case of Waldo & al. v. Spencer, 4 Conn. Rep. 71. cited in support of the objection, proves it unfounded.
3. The last ground of abatement was, that this process was issued by one justice of the peace, viz. Joseph Eaton, Esq., and the person charged, was directed to be, and in fact was, brought before another justice, Francis B. Johnson, Esq. This is the only ground of error, worthy of consideration ; but it is not sufficient to reverse the judgment.
It is said, and truly so, that the statute of 1821 is materially variant from that previously in force. By the former statute [sec. 2. of the ed. of 1808.] every assistant or justice of the peace might bind over to the county court, «fee. By the act of 1821, it seems, the justice of the peace, to whom the complaint is made, «fee., shall issue his warrant to cause the person charged to be brought before him, and he is to bind over, «fee. But this alteration, by the terms of it, affects only the process instituted by the mother, and has no bearing upon that instituted by
There is, then, no error in the judgment complained of.
Judgment to be affirmed.