Mary Sisco v. Lathrop Harmon, 9 Vt. 129

The opinion of the Court was delivered by Collamer, J. The first ground of objection to this proceeding, is, that copies of the proceedings before the magistrate, were used in the county court, instead of the original papers. The practical construction of the statute has been, to use copies. And perhaps this is the proper course, as the recognizance, taken before the justice, is matter of record, and the original should remain with him. But with this question, this court, as a court of error, have nothing to do. It is a matter of practice, to be regulated by the county court, by its own rules.

There may be many cases, where the county court may receive copies, as substitutes for originals, such as where the originals are destroyed or lost, and many others. Now to show that that court committed an error, the exceptions must show that no such state of circumstances existed, or this court will, in this case, as in all others, presume all was correctly done, until the contrary appears. For any thing, which appears in this case, the county court committed no error, in law, in receiving and acting upon copies, even if the law ordinarily required the original papers in such a case.

The main question, however, arises from the fact, that Mary Sisco was a married woman, when this prosecution was instituted. In.the case of Gaffery v. Austin, decided in this court on the last winter circuit, the woman was married when the child was begotten, and the prosecution was by her alone, the overseers having no

part in it. It was insisted that such an action could be sustained, if non access of the husband could be shown, because this could be done in England, under their statute. This the court overruled, for many reasons, and among those, which operated upon my mind, were these. In England, the proceeding is for the punishment of incontinence, and the security of the parish. In this State, and under our statute, it is, in the first instance, in the name and behalf of the woman, to aid her in the support of the child.

There the prosecution is in the name of the king, and the order is made on both the father and mother, as a criminal proceeding. Here it is entirely different ; no proceeding can be had against the mother. There the woman, in testifying to her adultery, subjects herself to no civil penalties. Here, adultery is a deeply criminal offence. To sustain such a prosecution by a married woman, even with her husband, would open the door for such prosecutions, to compel contribution for the support of all children, begotten and born in lawful wedlock; and that, too, in behalf of parents, bound by law for their support.

To sustain it, in her behalf alone, without the joinder of her husband, if the judgment was against her, would subject her to imprisonment for costs, in violation of the marital rights of the husband. This is entirely a different case. It is not a suit by the woman alone. It is not to bastardize a child, begotten or born in lawful wedlock. It does not require the woman to criminate herself, on oath, to sustain it, nor can any judgment or order, which may be made in it, be for the relief of the husband, as he is not, by law, bound to maintain this child oí his wife. 4 T. R. 118.

It is obvious then, that this is entirely a different case, and clear of all the great difficulties and objections in the other case. It is, however, insisted that the statute is entirely confined to the case of a single woman, and that she must not only be such when the child was begotten and born, but at the time of the prosecution.. The object and purpose of this act are very obvious. It is to compel contribution from the putative father of a bastard child, that is, one begotten and born out of lawful wedlock, (l Bla, Com. 454,) in aid of the mother or the town, which is bound to its support.

Such a construction should be put on the statute as will effect this object, if this can be done without violence to its expressions, and so far as will not compromit legal principles, or put in jeopardy other great legal rights. The statute provides “ That when any single woman shall be delivered of any bas- “ tard child, or shall declare herself to be with child, and that “ such child is likely to be bom a bastard ; and shall, in either “case, charge any person, in writing, and on oath, with having “ gotten her with child, and being the father of said child,” &c. Now to what does the term, single woman, apply ?

To what, point of time does it refer, in these proceedings ? There are two states of circumstances here mentioned, in either of which the proceeding may be taken, to wit, a single woman must have been delivered of a bastard child, or a single woman must, on oath, declare herself to be with child'.

In the nature of the thing, then, if proceedings are taken, that is, if the complaint and oath are made in the latter case, she must not only have been a single woman, when the child was begotten, but must be still a single woman, when .she makes the oath and complaint; and this should appear. ’ But in the former case, if a single woman has been delivered of a bastard child, there is nothing which requires that she should remain such, when the oath is made, and the proceeding is taken. Such was this case. A further objection is made, that this complaint is by the woman only ; that her husband is not joined.

This is entirely a civil proceeding, and if the prosecutrix is an infant, she must sue by guardian or prochein amy. Hinman v. Taylor, 2 Conn. Rep. 357. By our statute, the prosecution is given to the mother, in the first instance. The overseers of the poor have the right to institute the suit and prosecute it, or to take the control of one, by her commenced, but, still, it must be prosecuted in the name of the woman. Such is the only form of proceeding, recognized by the statute.

This was a prosecution by the overseer of the poor, and the husband did join,- so far as the form of proceeding, recognized by the statute, would permit. To require more would practically defeat the object of the statute, in giving security to the town. By the 4th Sec. the statute provides, that, if the woman marry before delivery, it ends the prosecution. This clearly implies, that a marriage afterwards, as in this case, will not have that effect. If a marriage is entered into before delivery, the child will be born in lawful wedlock, and in law, is not a bastard, and the husband is bound to its supporrt.

But if the child is born before marriage, as in this case, it is a bastard, and the town, and not the husband, is bound for its support. In such case, the town is entitled to the aid from the putative father, which the statute gives, and of this right it cannot be defeated by the marriage of the woman. Judgment Reversed. Cause remanded to the County Court. Royoe, J. Dissenting.