Overseer of the Poor v. Yarrington

20 Vt. 473 | Vt. | 1848

The opinion of the court was delivered by

Davis, J.

The county court correctly overruled the motion to dismiss the suit, made in behalf of the defendant on the ground assumed, that T. J. Nevins, the acting magistrate, to whom the complaint was made, and who ordered the defendant to recognize for his appearance at the county court, was not in fact in commission at the time. We cannot go behind the commission, in due form, executed by the executive authority of the state, conferring the office of justice of the peace upon Nevins for that year, and inquire whether he was duly appointed by the two houses of the General Assembly in joint convention, or not.

The complaint, in this case, was filed by Rufus M. Benson, overseer of the poor, on the 8th day of January, 1845, stating that Sarah E. Waterman of Norwich, a single woman, was delivered of a bastard child on or about the first of October preceding, which child had become chargeable.to said town, and averring that she had neglected and refused, for more than thirty days after the birth of the child, to charge any person with being the father thereof, in pursuance of the provisions of the first section of chapter 67 of the Revised Statutes. A warrant having issued against her, she was apprehended and brought before the magistrate, and examined on oath, and her testimony duly reduced to writing, and properly certified. Then follows a complaint against the defendant, embodying the material facts so sworn to, in nearly the usual form in which such complaints are made, by the woman, which complaint, like the one against the woman, is signed officially by said Benson. A warrant for the arrest of the defendant follows, and the usual proceedings necessary to transfer the case into the county court for trial.

By the 12th section of chapter 67 of the Revised Statutes overseers of the poor of any town, already charged or likely to become charged with the support of a bastard child, were authorized, whenever in their opinion the interests of the town required such a proceeding, to commence a prosecution against the putative father of such child, in the name of the mother, or to control any prosecution, previously commenced by her, and prosecute the same to final judgment; such overseer first filing with the magistrate, or with the county clerk, as the case might be, a certificate of his intention, and a promise to indemnify the mother- against all future costs. By the statute of November 1, 1843, power is first given to such overseers to commence such prosecution in their own name; and that power is only given, in case the mother shall neglect or refuse, for a period of thirty days after the birth of the child, to charge any person with being the father of such child. As the mother, in such case, is supposed to decline making a complaint, provision is made for laying a proper foundation for the prosecution, by first making a complaint against the woman ; whereupon the justice, to whom it is made, is required to issue a warrant for her apprehension, and, on her being brought before him, she is to be examined on oath, and her testimony to be taken down in writing. This being done, the magistrate is then empowered to issue his warrant against the person implicated, and, oh his being arrested and brought before him, to proceed in the same mauner, as if the woman had voluntarily signed a complaint.

The proceedings in the present case were in conformity to this statute, the original complaint averring, as it was necessary it should, the fact of the lapse of more than thirty days after the birth of the child, without any person being charged by the mother, as the father thereof. Without that pre-requisite, no authority whatever existed for the proceeding in this form. On trial in the county court, upon proper plea and notice, the defendant proposed to disprove that indispensable fact, by shewing affirmatively, that previously to the birth of the child, the mother made, in writing, and on oath, the usual complaint to a magistrate, charging the defendant with being the father of the child, with which she was pregnant,— that a warrant was issued, by virtue of which he was arrested, — that he was required to recognize, and did recognize, in the usual way, for his appearance at the then next term of the county court, to answer to the complaint, — and that before the intervention of that court, he compromised the matter with the prosecutor, to her satisfaction, and received from her a full discharge. The county court excluded this evidence, as incompetent to constitute a defence, This was clearly an error.

It was suggested in argument, that the phrase “ to charge any person with being the father,” as used in the first section of the statute of 1843, must be understood in a different sense, from the same language used in the first section of the general statute; that in the former case it should not be held to exclude the particular mode of proceeding adopted here, unless a prosecution were noi; merely commenced by the woman, but unless the same were carried forward to a final determination, fixing the paternity, and establishing the order of support. There is no ground for such a construction, If there were any ambiguity in the language; of the latter statute, it .seems to be removed by the express reference made to the previous statute, in which the manner of making the charge is distinctly pointed out. The obvious purpose of the new provision, which was to authorize the institution of a prosecution in the name of the overseer, in the event of no one being instituted by the woman within a certain time, as well as the brief period of time limited, leads us inevitably to the same conclusion.

In this view of the subject, we have no occasion to inquire into the validity of the settlement made between the woman and the defendant, as against the overseers of Norwich. If it be conceded, as I apprehend it should be, that the fifth section of the statute of 1843, which is substituted for the equivocal fourteenth section of the general statute, would render inoperative the discharge executed by the woman, so that the overseer, if he had filed the requisite certificate with the clerk, might, notwithstanding such discharge, have taken the control of the prosecution and pursued it to a final determination, still the existence of this right has no effect whatever upon the question now in controversy. The authority to commence or control prosecutions in the name of the woman is not at all impaired by the statute of 1843. It still remains, as before, except so far as it is modified by the new provision in respect to the power of the woman to interfere, and must not be confounded with the superadded right, ‘ in a certain event, to proceed in a new and different form, given by the recent statute.

The result is, the judgment of the county court is reversed and a new trial directed.