The People, ex rel. Crandall, vs. The Overseers of the Poor of the Town of Ontario, 15 Barb. 286

By the Court, Johnson, J. 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 by statute, and the court is expressly authorized to correct all errors in the proceedings and judgment. I have always been of the opinion that the rule should be otherwise, and that whenever the return showed clearly upon its face that a conviction or judgment had been obtained by evidence inadmissible by the well settled rules of evidence, this court should have the power to correct it.

The rules of evidence should be uniform in all courts, and applied alike to all persons, or there can be no real security for person or property. But whatever may be the rule in this respect, it is clear, I apprehend, that it is proper for the court below, and indeed its duty, to return enough of the proceedings before them to show-that they had jurisdiction not only of the subject matter of the inquiry, and of the person proceeded against, but also that some prodf was made, which had at least a tendency to establish the material allegations in issue. The case of The People v.

Goodwin, (1 Selden, 568,) is directly in point. To this extent it is clearly the duty of this court to look into the return. If on such examination it appears that the court had no jurisdiction of the subject matter, or that there was no evidence legally tending to establish the main facts which could alone authorize the judgment in either case, this court will set the judgment aside., In such cases this court does not deliberate upon the weight and just force of evidence, but determines merely whether there is any evidence whatever.

In regard to all matters pertaining to the jurisdiction of the court below, to entertain the proceeding, or to render the judgment or order brought up by the writ, all the decisions agree that the return is open to scrutiny, and the decision to correction.

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 competent court.

In no other case could the child be regarded as a bastard within the meaning, or for any of the purposes of the act under which the proceeding in question was had. (1 R. IS. 641, § 1.) There is no pretense that there was any decree of separation in this case. The child, therefore, for any of the purposes of this proceeding, was not a bastard, unless it was proved, or there was at least some evidence legally tending to show that the husband had been absent from the state, separate from the mother, for one whole year previous to the birth; she in the mean time continuing and residing in this state.

Unless these facts were established, the court of sessions had no power or authority to confirm the order of the justices, no matter who, in point of fact, was the father. 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 proof of some search and inquiry at his usual place of residence here, of which nothing was shown.

Under such circumstances, and to establish such a fact, can mere hearsay, mere vague rumors, springing, for aught we can see or know, from the conjecture or fabrication of the narrators, be regarded as evidence ? It seems to me not. All the books upon evidence agree, that hearsay, with certain exceptions,'is not admissible as evidence. In Mima Queen v.

Hepburn, (7 Cranch, 290,) Chief Justice Marshall said that “ it is in its own nature inadmissibleand he adds that the sole ground of its exclusion is not the supposition that some better evidence might be adduced in the particular case; but that “its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible.” But suppose it is admitted, and the common law certiorari does not reach the error of receiving it, what does it tend to establish ?

Does it prove or tend to prove, legally, the existence of any fact sufficient to sustain the jurisdiction and the judgment of the court ? I am clearly of the opinion that all which evidence of* mere hearsay or belief can legitimately tend to establish, in its very essence and nature, is that the witness heard the statement, or believed the fact to exist, and does not at all tend to establish the existence of the fact, and is therefore no evidence on which any judgment can be predicated or upheld.

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 from the state—upon which alone the jurisdiction of the justices to make, and of the court of sessions to confirm the order in question rested, and the order must be reversed and set aside. [Catusa General Term, June 6, 1853. Selden, T. JR. Strong and Johnson, Justices.]