M. J. J. v. J. C. B.

47 N.H. 362 | N.H. | 1867

Nesmith, J.

Complaints of this nature are allowed and regulated by statute law. They are not recognized at common law, because the father of an illegitimate child is not liable for its support to the mother. 2 Kent’s Com. 215; Comyn’s Dig. Bastardy, 247. But here we have a statute which gives remedies to the mother, and sometimes to others, who may be interested. The more immediate object of these complaints is to give redress to a civil injury, by compelling the putative father to aid the mother in the support of the child, or to indemnify the town, chargeable with its support, against the expenses, which may be incurred thereby; giving to the court the power to require of the father, or the mother, or both, security against the liability. The proceedings under our statute assume the form of criminal prosecutions, but in practice they are treated substantially as civil suits. Stokes v. Sanborn, 45 N. H. 276. Hence, these proceedings are amendable, as writs and declarations are in civil cases. Rice v. Chapin, 10 Met. 6. In this case, the complaint originates from the mother of the child, and in her behalf, and not until after the delivery of her child, and, for this reason, the respondent says, it comes too late, and asks that the complaint be dismissed.

It becomes the duty of the court to give a fair and liberal construction to the statute, that gives authority for these proceedings, and such as will comport with its obvious intent and meaning.

The first section of chap. 68 of the Devised Statutes, p. 162, Comp. Laws, enacts, "That if any woman is pregnant with a child, which, if born alive, may be a bastard, she may make complaint in writing under oath to any justice of the peace, in this State, against any man, charging him with having begotten such child.” Giving this language its true and popular import, it plainly implies, that the complaint made by the woman must be made during pregnancy, and before the birth of the child, and not afterwards. The act prescribes the duty of the justice, in issuing his warrant, &c., requiring a bond of the respondent, if found by him chargeable; then the entry of the case in court, and the mode of trial there. The 4th section of the act ordains, "That any woman, who shall have made her complaint in the manner aforesaid, charging any man with being the father of the child, and stating the time when,- and the place where, the same -was begotten, and shall have declared. in the time of her travail, the same person to be the father of the child, to the persons attending her, if any person did attend her, and shall have continued constant in such accusation, shall be a competent witness on the trial of such complaint; her credibility being left to the court, or jury, who try the same,” &c. This section prescribes the terms upon which the woman can be made a witness, in her own behalf, when she shall have made her complaint in the manner aforesaid, or as prescribed in the first section of the act, and during her pregnancy.

The 5 th section of this chapter prescribes the duty of the court in cases, where the respondent is found chargeable, as aforesaid, upon the mother’s complaint. The sentence and jurisdiction of the court are before suggested in this decision.

The 6th section of the act recites, "If any woman after having made her complaint as aforesaid, shall abandon the same, the town liable by law for the maintenance of the child, and for expenses incurred, may, upon application to the court or justice, made in writing by their selectmen, agent, or attorney, be admitted to prosecute said complaint. And all subsequent proceedings thereon shall be the same, as if said complaint had been instituted originally by such town.” The complaint here adopted by the town, when abandoned by the woman, is the one originated by her during pregnancy, and before the birth of the child, being the same authorized by the first section of the act, and none other.

The language of the seventh section of said act is equally specific, plainly referring to the mother’s neglect or refusal to make her complaint as aforesaid, or to any false complaint she may have made according to the requisition expressed in the first section of the act, as before explained. All parts of the aforesaid act are entirely consistent with the construction, that the complaint intended to be made by the mother of the illegitimate child in her own behalf should be under oath, and prior to the delivery of the child. And that towns, in certain cases, for the purposes of past security and future indemnity, may commence their prosecutions against the putative father afterwards.

Our statute relating to this subject has remained substantially the same since 1827. The first section of the law of February, 1791, which was in force prior to 1827, provided, that, when any woman shall be pregnant with a child, which, if born alive, may be a bastard, and such woman shall, previous to her delivery, on oath, before a justice of the peace, voluntarily charge any man with being the father thereof, &c.

The time, when the woman shall make her complaint, as indicated by this law, is placed beyond a doubt. It must have been previous to her delivery. The Provincial Statutes of 1761, by fair intendment, contained a similar provision, and continued in force up to Feb. 11,. 1791^ Therefore, the statutes, which have been in force here for more than one-hundred years, have been in pari materia in this respect; the complaint required of the woman, when prosecuting in her own right against the father of the illegitimate child, being required for about sixty years to be made before the delivery of the child, and for nearly as many other years while she shall be pregnant of such child; the termg employed, in all the statutes, having a like force and meaning.

The statutes of Maine and Massachusetts are different from ours. In those States, the woman may commence these proceedings either before or after the birth of the child. The practice under our statute has been uniform for a long series of years. We have not been able to find a single prosecution instituted and carried on by the woman against the putative father of her illegitimate child, in Tier own behalf, after the birth of the child. We think it has been the understanding of the profession, that such complaints would be too late, and could not be sustained. The most approved forms, or precedents, furnished by our books, are in unison with the aforesaid practice.

We think the statute limits the right of complaint, or the remedy of the woman in her own behalf, in point of time, to the period of gestation. The provision is a wise one regarding the interested parties. It is best, as a general rule, that the proposed remedy should promptly follow the injury received. The statute imposes the burthen upon the woman, presumed to have received her injury, to take immediate steps to procure remuneration from the author of her sufferings. Then, in case of her neglect or refusal to prosecute the offender, or when in the belief of others in interest, she has made a false charge, the law leaves to other parties the privilege to obtain their security. For these reasons, we think this prosecution cannot be maintained, and must be dismissed, as being out of time and irregular.

We are not called upon to consider the question, whether the county of Grafton may not now institute proceedings, through her commissioners, for their pecuniary protection. We do not undertake to decide this question. It is not reserved for our consideration. We think the objection to the magistrate’s making an examination of this case, on account of his pecuniary interest in it, the complainant being a county pauper, ought not to prevail. His interest in the expenses of her support, as well as of this prosecution, must be regarded as too remote and minute to disqualify him, and no other magistrate, out of the county could be substituted, without incurring unreasonable delay and expense, provided no other legal objections existed against going out of the county for a justice, and to deny his authority to act in such a case might consequently leave the law unexecuted.

In Moses v. Julian, 45 N. H. 55, Chief Justice Bell examines this whole question of interest with ability. As a part of his decision in that ease, he states the proposition, that the members of partnerships, and corporations, though their interest may betrifling, are, nevertheless, disqualified, to Bit as judges or jurors, except in cases where a party is a mere inhabitant of a public municipal corporation, as a town or county, entitled to receive the fines and costs imposed on offenders. In such eases, the ineotbprs .of such, corporations are not disqualified either as judges or jurors, JJb .collects the authorities in support of his position.

In the case of Com. v. Emery, 11 Cush. 411, the objection was to the police judge of Lowell taking jurisdiction, on account of the penalty in the ease, accruing, upon conviction, to the city of Jjowell. Judge jShaxo remarked that the objection to the judge was obviated by Si well mottled rule founded as well on reason as authority : "That a minute, theoretic and remote interest, arising from a possible participation in penalties, either payable to the town, county or State, does not disqualify one from acting as judge, when all are so interested, who can act, and when the law would remain unexecuted without it.”

Chief Justice Shaw gives an additional reason why a justice should act in this class of cases, remarking, that when jurisdiction was conferred on justices of courts, and magistrates, with a full knowledge on the part of the legislature, that a minute interest must exist in such justices and magistrates, it was intended by force of this statute to confer such jurisdiction, notwithstanding the existing interest. All judges are thus minutely interested in penalties, which enure to the commonwealth.

If such objection to them could be sustained, all such laws would remain unexecuted. Com. v. Tuttle, 12 Cush. 504; Com. v. Barding, 12 Cush. 507; Com. v. McLane, 4 Gray 427.

The cases quoted by defendant’s counsel- in our reports are prosecutions, where the magistrate, who presided in the trial of the case, resided in the interested town. Of course, the law of necessity would not apply to that class of cases, because it would be easy to obtain a.disinterested magistrate from some town in the vicinity, not interested in the result.

Viewing the interest in the magistrate, who officiated here, as being slight, and that it could not well have been obviated, we overrule the exception taken to the jurisdiction of the magistrate.

Complaint dismissed on the first exception.