15 Barb. 286 | N.Y. Sup. Ct. | 1853
If we were at liberty to look into the return, for the purpose of reviewing the rulings of the courts on questions of law, and correcting errors of that character, there can be no doubt that the order and determination- of the court below should be set aside. The mother of the alleged bastard was a married woman, whose husband was living at the time of the alleged illicit intercourse and the birth of the child. And while she is, from the necessity of the case, a competent witness to prove the illicit intercourse, and who is in fact the father of the child, she is not competent as a witness to establish the non-access of the husband; nor his absence from the state; nor any fact which may be proved by other testimony. This seems to be the well settled rule. (2 Stark. 404. Phil. Ev. 87. Greenl. § 345. Cowen Hill’s Notes, 153, 1555, and cases there cited.) Lord Mansfield held that it was a rule founded in decency, morality and policy, that parties should not be permitted to say after marriage that they had no connection; while Lord Hardwick placed the incompetency of the wife on the ground of the interest of the husband, in charging another with the support of the child. The only evidence in the court of sessions, to prove the non-access or absence of the husband, was that of the mother, who was objected to as incompetent, by the relators, to prove such facts. The court overruled the objection and received the evidence. In this the court clearly erred.
The decisions upon the question how far this court will look into the return, to review and correct errors of this description, when the court below were acting within their jurisdiction, are somewhat conflicting. But the weight of authority is decidedly, as I think, against the right to review erroneous decisions in admitting or rejecting evidence, where the evidence itself is proper, and the objection lies only to the competency of the witness to testify in the cause or proceeding, and other errors of like character. The exception to this rule seems to be confined exclusively to cases where the common law certiorari is given
In the present case, the mother of the alleged bastard, being a married woman with a husband living, the court below had no power or authority to compel any person other than the mother or the husband, to support such child, unless it was made to appear, either that the husband of its mother had continued absent out of this state for one whole year previous to the birth of such child; absent from its mother and leaving her during that time continuing and residing within this state ; or that the mother was separated from her husband by the decree of a
On the hearing of the appeal, the party in whose favor the order is made is required to substantiate it by evidence, or the court of sessions must reverse it. (1 R. S. 647, § 28.) The only evidence before the court of sessions, as appears expressly by the return-—conceding the competency of the mother—bearing upon the husband’s absence from the state, was the statement of the mother that he had been in Michigan. When, how long, or in what part of the state, did not appear. On her farther examination she admitted that she knew nothing of the fact except from hearsay.. She also testified that she had not seen him for more than two years previous to the birth of the child, but had heard of his being in Walworth, Wayne county, in which county she resided, since she last saw him, but at what particular time does not appear. How is there here any proof, even colorable, that the husband had been absent from the state for one whole year previous to the birth of the child ? If there is any testimony at all, which the law regards as evidence to establish a fact, that the husband was in the state of Michigan within the year previous to the birth, then the fact that the mother had not seen him for two years might raise the presumption that he had been out of the state for one whole year But his absence at all from the state, and his presence in Michigan, rests on mere hearsay. It was a fact which could readily have been established by direct and positive proof, or at least by
It has been repeatedly held by our courts in cases where certain facts were necessary to be proved to the satisfaction of a court or officer, to give him jurisdiction to act, that evidence of information and belief as to those facts, was not sufficient to confer the authority. That mere information and belief were neither facts nor circumstances upon which the court or officer could judicially act. (Loder v. Phelps, 13 Wend. 46. Smith v. Luce, 14 Id. 237. Ex parte Haynes, 18 Id. 611. Matter of Faulkner, 4 Hill, 601.)
If I am right in this, there was an entire absence of proof in regard to the main fact—the continued absence of the husband
Selden, T. JR. Strong and Johnson, Justices.]