Hollister against White and others

Hollister against White and others : the name-oS A suit for the maintenance of a bastard child, taken up and pursued under the statute, (tit.22.3. 3.) on the mother’s failure to prosecute a suit she has commenced, must be in ' the town liable to support the child, by the select-men, as the agents of that town, and not in the names of the persons, who are, at the time, select-men. A suit on a recognizance, taken, in the course of such a proceeding, to the adverse party, on the complaint of the mother, before her failure to prosecute, must be brought in the same manner. in errors. THIS was a scire-facias on a recognizance, entered into by Hollister, on a complaint exhibited against him, by Jinn Goffe, the mother of a bastard child, in a prosecution under our statute of bastardy. (Tit. 22.) The recognizance ivas taken to “ the adverse party $” and the condition was, “ that said Hollister should make his appearance before the next county court to be holden at Middletown, within and for the county of Middlesex, on the fourth Tuesday of September, 1815, and make answer to said complaint ; and should abide the doings of said county court thereon.” Jinn Goffe duly Hartford, November, 1817. cutered her complaint in the docket of the county conrt, bat failing to prosecute her suit, lianiel White, David Clark, Simeon Young, John Stewart, and Samuel Fenfleld, selectmen of the town of Chathain where the child was horn, took up and pursued the suit thus begun. Hollister was found and adjudged to be the father of the child, and a decree was passed against him for its support. He failed to comply with this decree, and his recognizance became forfeited. This scire-facias was brought in the names of the select~ men above mentioned; and came, by appeal, to the superior court, July term 1816, and was thence continued to the term in December following; when the defendant pleaded in abatement, that since the last continuance, the term of time for which the plaintiffs were appointed select-men, had enpired, and that the town had appointed five other persons to the same office, who had accepted of their appointments respect~ ively. This plea being demurred to, the court adjudged it to be insufficient, and ordered the defendant to answer over. nbc defendant tlieii prayed oyer of the record and proceell-ings of the county court, and demurred to the declaration. The court adjudged the declaration to be sufficient, and rendered final judgment in favour of the plaintiffs, for the amount of the recognizance and costs. The defendant thereupon brought the present writ of error, assigning for error, that the superior court ought to have adjudged his plea in abatement sufficient, and the plaintiffs' declaration insufficient. T. S. Wil~liams and C. Whittelseu, for the plaintiff in error, contended, among other Points which it has become unnecessary to notice, 1. That the bond being taken to the then "adverse party, viz. .~nm Goffe, no suit can be sustained upon it in the names of the select-men~ The sciie-facias should he in the name of the nominal party, viz. .dnn Gaffe, or the party in interest, viz, the town of Chatham. I Root 440.441. The cognizee may have a scirc-facias, (hough his interest be terminated, and he has heroine a mere trustee. 3. That if a right of action vested in the individuals who entered and prosecuted as select-men» it could not be transmitted to (heir successors. The select-men of a town are not a corporation. Staples, for the defendants in error, contended, that the suit could not betaken up and prosecuted, by the select-men, in the name of Jinn Gaffe ; for if it could, it would be in her power to controul the suit, which would defeat the sole object of the provision in question. Nor is there any intimation in the statute, that the suit is to be prosecuted by the town. The statute says, that the select-men may take up and pursue the suit; and no power is given to them to do this, except in their own names. The recognizance being taken to the adverse party, the select-men become such party, by force of the statute. By the term “ select-men” must be meant the select-men for the time being. Bailey ⅝ at. v. Lewis, 3 Day 450. and Pierce Sf al. v. Kellogg, 3 Day 455. n. were cited. The provision of the statute conferring the power in question, is as follows "That the select-men of any town interested in the support of such bastard child, (where sufficient security shall not be offered to save said town from all charge and expense for the support of such child or children) ~nd the woman omits to bring forward her suit to recover maintenance, may bring forward a suit, in behalf of such town, against him who shall be accused of begetting such child; and may also take up and pursue any suit begun by the moth. er of such child, for maintenance thereof, in case she shall fail to prosecute the same to final judgment." flsok 1. tit. 22. a. [MAJORITY — Swimc» Ch. J.] Swimc» Ch. J. I am of opinion, that the select-men of Chatham cannot maintain an action on the bond in question. If the select-men for the time being liad a right to enter and prosecute the action, then the bond previously given to the woman would have enured to their benefit; they must have prosecuted the suit, and brought scire-fucias on the bond : for there is nothing in the law to warrant the idea, that the parties to the action are to be changed as often as the selectmen are changed ; or that a set of select-men different from those who entered and prosecuted the suit, can bring scire-facias on the bond. But I apprehend, that the select-men of a town can never bring a suit on such bond. It is a reasonable construction of the statute to say, when a suit is brought for the maintenance of a bastard child, because the mother does not prosecute at all, or where one is taken up when the mother fails to prosecute a suit she has commenced, that it must be done in the name of the town where the child would he chargeable, by the select-men, as their agents, and not in (he name of the select-men only ; for it is the town that has an interest in the prosecution ; and the statute, by authorizing the select-men to bring forward or prosecute such suit in behalf of the town, constitutes them agents for that purpose, anil the suit must, of course, be in the name of the town; and here would be a permanent party, not changeable like the select-men of a town. If the suit must be in the name of the town, and the selectmen cannot enter or prosecute in their name, it follows necessarily, that they cannot bring scire-facias on the bond previously given to the mother of the bastard child. I am of opinion that the judgment of the superior court be reversed. In this opinion the other Judges severally concurred, except Goran, J., who did not hear the arguments of counsel, and, of course, gave no opinion. J udgment reversed.