20 Vt. 567 | Vt. | 1848
The opinion of the court was delivered by
The first question made in this case is, whether the plaintiff is a competent witness to impeach her own discharge, on the trial of a case like the present. It seems very clear to us, that she is not. The statute of 1822 provided, “ That on the trial of the issue of whether chargeable or not, such woman shall be a competent witness.” The expression of the Revised Statute is, “On the trial of the issue, whether the defendant is guilty or not.” We suppose both forms of language were intended to express the same idea. And the mother being admitted a witness, not only contrary to the general rule excluding the parties and those interested in the suit from giving evidence in the trial, but also contrary to the rule adopted in this proceeding, as to the other party, we think
There was a necessity of making the mother a witness in regard to the filiation of the child, in order to make the prosecution of any avail whatever. But beyond that point no such necessity exists. We think such is the fair import of the statute words, “ upon the trial of the issue, whether the defendant is guilty, or not.” It surely could not consist with a decent respect for the legislature, to suppose that the statute was intended to make the competency of the testimony of the plaintiff to depend upon the form, instead of the merits of the issue. The competency of the plaintiff’s testimony must depend rather upon the facts to be tried, than upon the form, in which the pleadings are drawn. We think her testimony must be confined to the trial of the question of the defendant’s liability, under the statute, aside from the contract of the parties releasing the defendant, or any similar question, foreign to the primary liability.
In regard to the effect of the release of the mother upon the rights of the town, liable to be charged with the support of the child, there would, perhaps, be no difficulty, if the legislature had not interfered with the matter. It would be reasonable, perhaps, that the release of the mother should not operate beyond her interest. The rights of the town are not only independent of those of the mother, but grow out of their own liabilities, which are consequent upon the delinquency of the mother, in maintaining her child. Under such a state of facts it would seem not a little remarkable, that the release of the mother, given at any time, should defeat the rights of the town. Few, I think, would have had much difficulty upon the subject, in the absence of any statute. It would be reasonable and natural, and what every one would expect, that the release should only operate upon the interest of the mother. But to save all cavil, the legislature has from time to time passed several statutes upon the subject, each more dark and inexplicable than its predecessor, which it was intended to illuminate, until now it is wholly impossible to conjecture, from the words of the statute, what could be the precise intention of the framers. That perhaps, of itself, is sufficient reason, why the statute should be regarded as wholly inoperative, and the matter stand as it did before, leaving the release of the mother to operate to the extent, only, of her rights.
The first statute upon this subject in the state was passed in 1779, is very brief, and contains no allusion to this particular point. It is probably an epitome of the Connecticut statute upon that subject, then in force. The remedy there provided seems to have been intended mainly for the mother, except that the defendant was, if found guilty, to be required to give security to save the town harmless. This statute was substantially re-enacted in 1787, with an additional provision, authorizing the selectmen, in certain cases, to “ bring forward a suit, in behalf of such town, or to take up and pursue any suit began by the mother.” Thus the matter stood until 1797, when an extended statute was presented by the able revisers of that day and adopted by the legislature, by which the right to prosecute, in the first instance, was given to the town liable for the support of the child, and only to the mother upon the default of the town to bring forward such prosecution. The prosecution on behalf of the town was to be in the name of the town, as in England it is in the name of the king. Nothing is said in regard to compromises, — so eminent a jurist as Nathaniel Chipman not feeling the importance of making that matter any more intelligible, than the nature of the rights of those concerned, and the reason of the thing, seemed to make it.
That statute remained in force, with slight modifications, until. 1822, when another digest of the law upon this subject was enacted. Here, for the first time, as far as I can find, the subject of compromising such suits is made the basis of special legislation. The second proviso to the fifth section of that statute embraces the matter now under consideration. The provisions here found, although not very clearly expressed, are, if I fully comprehend their import, well enough, and wholly reconcilable with reason and common sense. It is in these words, “ Provided, that until three months after the ar- “ rest of such person, so charged, or after such overseers shall have “ commenced any such prosecution, or taken upon themselves the
In the revision of this statute, in 1839, the soul of the former portion of this proviso seems to have suffered a most unfortunate metempsychosis, if it be not absolutely annihilated. It seems, in regard to the limitation of the three months, to be flatly reversed, by substituting the word “after” for the word ‘‘until.” This will be apparent, in a moment, by looking at the evil to be remedied. The three months after the arrest were given, that these compromises might not be made silently and covertly, without the knowledge of the overseer. But by giving that time after the arrest, it was supposed the overseer must have notice. But to say that the mother may have all that time, to compromise and defeat the rights of the overseer, is to suppose the legislature intended to encourage these secret compromises, without the knowledge of the overseer, and in fraud of his rights ; which is more absurd than I would be willing to suppose they would be of design, although some of their acts, if literally interpreted, would doubtless lead to such a result. I have no doubt, that the revision of 1839 was intended to leave the matter as it stood before, removing some obscurity, which is done in regard to compromises made after the overseer shall commence, or control, a prosecution of this kind.
Thus the matter stood until 1843, when a new provision was made for compulsory prosecutions, to be brought forward by the overseer of the poor, where the woman refuses or neglects to prosecute, under the Revised Statutes, for thirty days after the birth of
It seems to us, then, that, making reasonable allowance for the jumble and confusion of ideas, which may be supposed to result from an attempt to combine two statutes, that the fifth section of the statute of 1S43 means nothing more, than that no compromise, made with the mother without the consent of the overseer, shall defeat his right, either in a case where he prosecutes in his own name, or takes the control of, or institutes, a suit in the name of the mother. Any other construction will lead us into the same absurdities, already alluded to. This is sensible, and just, and .such a view as may be supposed to commend itself to men “ noted for wisdomand the limited and absurd construction, which is contended for on the part of the defendant, it seems to us, would be a “ reproach to any people.” And if the statute is simple nonsense and therefore nugatory, the result, as above stated, will be the same; the release will only ¡extend to the interest of the releasor.
Judgment reversed.