29 N.H. 56 | Superior Court of New Hampshire | 1854
The seventeenth chapter of the Compiled Statutes provides for the division of the State into counties, and gives their boundaries. The twelfth section of the chapter enacts that the county of Grafton shall be divided into two judicial districts, to be known by the names of the Eastern and Western judicial districts of the county of Grafton. The thirteenth and fourteenth sections enumerate the several towns comprising those two respective districts; and the town of Lyman, where this complaint was made,, and where the offence was alleged to have been committed, is in the Western district.
The fifteenth section of the chapter is as follows: “ All actions, petitions, appeals and prosecutions in all civil cases, shall be commenced, entered and prosecuted in the court of common pleas for said districts, in the same manner they would be, if each of said districts was a distinct county.”
Was this complaint a civil action or prosecution within the meaning and intent of this fifteenth section of the statute ? If so, it should have been entered and prosecuted in the Western Judicial District; the town of Lyman being in that district.
In Marstin v. Jenness, 11 N. H. Rep. 156, the question as to the character of the proceedings under the bastardy act was fully examined; and it was there decided that a complaint under the act to provide for the maintenance of bastard children is a civil suit, although the forms of proceeding are, in some particulars, of a criminal character. It has also been so held in Maine and Connecticut. Mariner v.
Although the illegal begetting of a child is an act that may be visited criminally, by a prosecution for adultery or fornication, and the putative father may be thus punished by fine and imprisonment, yet such proceedings give no indemnity to the unfortunate mother for the support of the child ; and the criminal proceedings are disconnected from, and independent of, all process or judgment under the bastardy act. A.complaint under this act is not made in the name of the State, as is required where a crime, strictly speaking, has been committed; but in the name of an individual. It is, moreover, amendable, as in civil suits. The defendant is not arraigned, but appears and pleads by attorney ; and if he is discharged, he is entitled to costs as the prevailing party. The object of the suit is redress, and indemnity to the mother for the support of the child; and also to provide security to the town liable to maintain it. These are all characteristics of civil proceedings, and in no way appertain to a criminal prosecution. Marstin v. Jenness, 11 N. H. Rep. 160.
To give greater efficiency to the process and protection to the mother, the legislature has provided that the proceedings may, to a certain extent, be criminal in form, and that the body shall be holden for the enforcement of the judgment; but in all other respects it is a civil proceeding for pecuniary redress. An assault and battery is an offence for which criminal proceedings may be instituted and the offender punished. The injured party has also a remedy by civil suit, if he sees fit to pursue it; and the body is holden for the collection of the judgment. But the two prosecutions are different and distinct, although founded upon the same act; and yet they are not more distinct in their objects and effects than an indictment for adultery and a complaint under the act to provide for the maintenance of bastard children.
Upon a review of the grounds taken in Marstin v. Jenness, where the question was so well discussed, and after consid
This prosecution was commenced by Sally K. Little against Rufus Dickinson, in the town of Lyman, in the Western Judicial District, upon a complaint under the bastardy act, in which it was alleged that the child was begotten in Lyman. It was a prosecution by the plaintiff against the defendant, to obtain that pecuniary redress which the act gives for the injury sustained; and was rightfully commenced in that district. But being a civil prosecution, it should also have been entered and prosecuted in that district, which was, pro hae vice, the county having jurisdiction of the cause; and if at the time the prosecution was pending in the Eastern district a motion had been made to dismiss the action, it must have been granted, for the court in that district had no jurisdiction of the matter.
Unless, then, the transfer of the cause from the Eastern to the Western district, and an appearance in the Western, can cure the defect, the motion must now prevail. And we do not discover any way in which the defect can be cured by the transfer. The Western Judicial District has never obtained jurisdiction of the cause. It has never been legally entered there. The agreement that the action should be continued to the Western district was undoubtedly made under the impression that the prosecution was a criminal one. It is difficult to see how there could have been any other understanding; for the continuance of a civil action from one county to another, or from one district to another, cannot give such latter county or district the power to en
We should have been quite willing to have arrived at a different result in a prosecution of this kind, but the matter appears too clear to admit of doubt.
Motion granted.
