Scott v. Ely

4 Wend. 555 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

On examining the “ act for the relief of cities and towns for the maintenance of bastard children,” I confess' I was at a loss to discover a clear authority, either expressed or implied, to justices to commit the ipather pf .a bastard child, for refusing to affiliate the child; but it appears from the cases of Billings v. Perin and others, (Sir Wm. Black. 1017,) and Weller v. Take, (9 East, 364,) that such power is exercised under the British statute without any question as to its legality. On comparing the two acts it is quite evident that they are very similar in their language and convey the same authority to justices charged with the execution of their provisions. The relief intended to be afforded could not be obtained in all cases unless the mother could be compelled to discover the putative father. Upon the principle that necessary powers are implied, it is correct, perhaps, to consider the justices clothed with the power which they exercised in the case now under consideration. Such certainly are the views which have been entertained for a long time by the courts in England. Where the construction of a statute has become settled, courts have very properly acquiesced in such construction, even if doubts arise in their minds as to its correctness. The mother is to be examined by the justices, (1 R. L. 309, § 7,) and if she is contumacious, it seems proper they should have power to punish her contempt. I am inclined, therefore, to concede to justices under our act the same powers which have long been exercised under the 16th Eliz. chap. 3.

The plaintiff having introduced the warrant, by virtue of which she was arrested and imprisoned, it is to be taken as evidence of the facts stated in it until she shows the contrary. If what is set forth in it be taken for true, and the act will allow the construction that has been given to it, a complete j ustification is made out for the defendants, .unless the mistake in the warrant of the plaintiff’s name should make them liable.

There is no doubt but the plaintiff is the person against whom the warrant was issued, and the defendants gave express directions to the constable to take her on it; but the warrant was no authority for so doing. The name of the plaintiff is Evelina, and the warrant is against Emeline. There can be no pretence that the name is the same. But it is said there is no doubt as to the person. There was jko doubt as to the person in the case of Griswold v. Sedgwick, (6 Cowen, 456.) There was in that case as in this a mistake in the Christian name. Samuel was substituted for Daniel. The person intended to be taken was taken, but he sustained his action for false imprisonment by reason of the misnomer. I do not think that this case can be distinguished from that. The same point was decided in the case of Mead v. Hows and others, (7 Cowen, 332.) See also 8 East, 328; 2 Campb. 270.

Motion for new trial granted.