People v. Corbett & Easton

8 Wend. 520 | N.Y. Sup. Ct. | 1832

By the Court, Sutherland, J.

The provisions of the 25th section of the act for the relief and settlement of the poor, are not applicable to a case like this. It provides for the case of a poor person applying to the overseer of the poor for relief, and directs the overseer in such case to apply to a justice of the' peace, who, together with such overseer, shall inquire into the circumstances of the person so applying, and if they shall find that he requires relief, the justice is to give an order in writing to the overseer, to make such allowance weekly or otherwise to such pauper as he shall think his necessities may require, and the overseers are prohibited from making any other allowance. Now the case at bar is not the case of a pauper applying for relief, but the case of a bastard child, chargeable upon the town ; and, for the purpose of relieving the town, any town justices of the peace are authorized to make an order, charging the mother or reputed father with the payment of a weekly sum for the support of such child. 1 R. L. 306. Such order was made in this case, and the defendants entered into a bond or recognizance, the condition and legal effect of which was, that they would fulfil the order and pay the weekly sum directed to be paid by the reputed father. It was not, I apprehend, necessary for the plaintiffs to prove the actual expenditure of money in support of the child, in order to entitle them to recover. The order and recognizance were prima fade evidence of the child being chargeable, and if necessary, of his having been maintained by the town. It was for the defendants to shew themselves exonerated from the payment in some way or other, in order to avoid recovery against them. 3 Johns. R. 26. 9 id. 368. 8 Cowen, 623. A further order of a justice was not necessary to authorize the overseers to support the child, and the defendants have no right to enquire what amount was expended for that purpose as the extent of their liability is definitely settled by the order and recognizance. The evidence given, however, if any were necessary, was competent and sufficient.

The evidence offered by the defendant that the mother of the child had been, and was amply able to support it, was properly rejected. The child did not cease to be chargeable to the town in consequence of the ability of the father or the mother to maintain it. The offer was not to shew that the mother had in fact maintained the child. The mother is under no higher or stronger obligation to support her illegitimate child than the father is, and the father cannot escape the responsibility which has been fixed upon him by an order and recognizance, such as these, by proving the ability of the mother to provide for the sustenance of the child. If either father or mother, though able, do not support the child, it is a town charge, and the town must provide for it.

As to the motion in arrest of judgment. The principal ground relied upon in support of this motion is, that this court has not jurisdiction of the cause; that the suit should have been prosecuted in the court of common pleas of the county where the recognizance was taken, by the clerk of the county, according to the provisions of the 5th section of the act for the relief of cities and towns from the maintenance of bastard children. 1 R. L. 208. That section enacts, that if any reconizance in any case concerning bastardy shall become forfeited, such recognizance shall not be estreated and sent into the court of excbequer, but the court of sessions of the peace, to which such recognizance may be returned, shall direct the clerk of the city or county to prosecute a suit upon the recognizance, in court common pleas of the city or county where the person or persons who entered into such recognizance can be found. It is recognizances which may have been returned to a court of sessions, which are to be collected by the clerk of the county, &c. The court of sessions have no jurisdiction of the matter, until the recognizance is returned to that court and becomes a record. It is to recognizances, therefore, which ought to be thus returned and filed, that this section applies. Such are the recognizances to be taken under the second and fourth sections of the act. It is the only condition of those recognizances, that the party will appear at the next general sessions of the peace, and abide and perform such order as shall then be made. Those recognizances are of course returned to such court, and if forfeited, are to be prosecuted according to the provision of the 5th section. But the security to be taken under the 1st section of the act is essentially different. Under that section an order is to be made by two justices, charging the reputed father or the mother with a weekly sum for the support of the child; and if such order is not performed, the party is to be committed to jail, “ unless he or she put in sufficient surety to perform such order, or personally to appear at the next general sessions of the peace, &c. and also to abide such order as the said justices of the peace, &c. in their said sessions, shall make in that behalf, if they then and there shall make any; and if they shall make no other order, then to abide and perform the order before made.” The 9th section of the act gives the right of appeal to the general sessions, to any person who shall think himself aggrieved by any judgment or order of any two justices of the peace naade by virtue ■ of this act; and the 10th section directs the manner in which the appeal is to be conducted. If there is no appeal from the order of the justices, it is conclusive upon the party, and he is bound to perform it, 3 Johns. R. 22; 16 id. 155; and where there is no appeal, the security given under the first section becomes, in legal effect, a security for the performance of the order made by the justices. In such a case, there can be no necessity for returning it to the court of sessions. The act does not in terms require that it should be so returned, and it is understood to be the general practice not to return it, where there is no appeal; and even where there is an appeal, if the order of the justices is affirmed, it is said to be the practice to send the security back to the overseers of the poor of the town where the order was made, to be used by them for the purpose of enforcing a performance of the order. It is to be remarked also, as a circumstance of some weight, that the 5th section speaks only of recognizances, and the security required by the 1st section is not called a recognizance, but the party is merely directed to put in sufficient surety. On the whole, I am inclined to the opinion that the provisions of the 5th section of the act are not applicable to a case like this, and that this suit is properly brought in this court.

There is force also in the suggestion, that if that section did apply, non constat but that the suit may have been originally commenced in the court of common pleas, and removed into this court by the defendants by habeas corpus; the fact of such removal, if it existed, would not appear upon the '•ecord, and every presumption may be indulged which is consistent with the record, in the case of a court of -general jurisdiction, in order to support its proceedings, when they are attacked on the ground of a want of jurisdiction.

It is said the declaration is bad because the recognizance is several and not joint,- and the defendants are jointly sued. This objection is answered by a reference to the 14th section of the act for the amendment of the law, &c. 1 R, L. 521, which expressly provides that when two or more persons are bound in one bond or recognizance, jointly and severally, or severally only, it shall be lawful in every such case to join all the obligors in such bond or recognizance, or any part of them, in one action.

The objection, that the declaration should have averred that the recognizance was filed or made a matter of record, is disposed of by what has already been said in answer to the objection to the jurisdiction of the court. It was not necessary that it should be filed or made a matter of record.

All the counts in the declaration appear to me to be substantially good, and the motion in arrest must be denied.

The case of The People v. Relyea, 16 Johns. R. 155, decides expressly that this is not a case for the assignment of breaches and the assessment of damages, under the 7th section of the act for the amendment of the law, 1 R. L. 518.

Motion for new trial, and motion in arrest denied.