Hopkins against The town of Plainfield

Hopkins against The town of Plainfield : IN ERROR. Where the complaint, in a suit by the town, for the maintenance of aibastard child, averred, that such child was a settled inhabitant of the town," and likely to become chargeable thereto, and that no bond or other security had been given to indemnify the town against the expense for the support of the child ; it was held to be sufficiently shewn, by these averments, that the town was interested in the support of the child. In such suit, it is no objection that the act complained ofis not averred to be contra formam statnti, nless it appear, that the proceedings are not founded upon Lhe statute, but rest upon the common law Where the complaint prayed process against the person accused, that he might be arrested, and brought before proper authority, and be dealt with, a-8 by the statute in such tase made and prodded is directed!, it was held, that this was equivalent to an express averment, that the complaint was instituted on the statute. The proper remedy, and the only one known in practice- in favour of a town, against the putative father of a bastard child, for the maintenance of such child, is by complaint and warrant. A bond given to the treasurer of a town, is, in law, a bond to the town It is not a sufficient ground of abatement, of the complaint, in a proceeding for the maintenance of a bastard chib], that the bond required of, and given by, the defendant, for his appear ance, was an improper and invalid one. Where the defendant in such proceeding appeared before the justice, to whom the complaint was exhibited, and pleaded not guilty; and such justice, after examination, found him auilhjy .n - bound him over to the county court; it was held, that such finding, as it included probable cause, authorized the binding over, and the proceeding was not, on that account, erroneous. In such proceeding, it is not a ground of error, that the complaint was exhibited to, and a warrant thereon was issued by, one justice of the peace ; and such warrant was returned to another justice, by whom the complaint was heard, and the defendant bound over. This was a suit for the maintenance of a bastard child, instituted and prosecuted, by the selectmen of the town of Plainfield, against Hopkins,'the person accused of begetting such child. The complaint was addressed to Joseph Eaton, Esq., a justice of the peace, stating, That on the 12th of April 1824, Bet-sey Hall, a legal and settle^ inhabitant of the town of Plain-field, was, at said Plainfield, delivered of a bastard child, begotten by said Hopkins; that said Betsey had neglected to bring forward a suit for the maintenance of said child, and to prosecute the same to final judgment; that said child is a set-tied inhabitant of said town of Plainfield, and likely to become chargeable thereto: and that no bond or other sufficient security had ever been offered to said town of Plainfield, to indemnify said town for the support of said child. The complaint concluded thus: “ Whereupon the said town of Plainfield, by their selectmen, pray process against the said Hopkins, that he may be arrested and brought before the proper authority, and be dealt with, as by the statute in such cases made and provided, is directed.” To this complaint was annexed a warrant, issued by justice Eaton, by virtue of which Hop;- ns was arrested, and brought for examination before Francis B. Johnson, Esq., a justice of the peace. There he pleaded not guilty ; and justice Johnson, after hearing the testimony, found him guilty, and ordered him to give bond with one sufficient surety, to the treasurer of the town of Plainfield, for his appearance before ihe county court, to answer to the charges in the complaint, and abide the order of said court thereon. The defendant gave bond accordingly. Before the county court fh. defendant pleaded in abatement, 1.That the complaint was made to Joseph Eaton, Esq., as justice of the peace, and the warrant issued thereon, was issued by him, and it was returned to Francis B. Johnson, Esq., another justice of the peace, who heard the complaint and ordered the defendant to be bound over ffir trial. 2. That justice Johnson found the defendant guilty of the facts set forth in the complaint, and thereupon ordered the defendant to become bound with one sufficient surety ; whereas he should h -ve found, th it there was probable cause, and ordered the defendant to become bound, with surety 3. That the bond ordered io be given, and the bond actually given, was to the treasurer of the town of Plainfield ; whereas the bond should have been ordered and taken to the adverse party, viz. to the town of Plainfield. To this plea in abatement there was a demurrer. The court adjudged it insufficient, and ordered the defendant to answer over. He was then tried on the complaint, under the plea of not guilty; the court found him guilty; and thereupon passed a final order pursuant to the statute. To reverse the judgment oí the county court, the defendant brought a writ of error in the superior court; which was reserved for the advice of this court. Judson, for the plaintiff in error, contended, 1. That the Complaint was insufficient. First, it does not allege, that the town of Plainfield is interested in the support of the child. If the defendant is liable at all, it is because the statute has made him liable ; and to entitle the plaintiffs to a recovery, they must state all the facts necessary to bring the defendant precisely within the statute. Morse v. The State, 6 Conn. Rep. 9. Secondly, the act complained of is not alleged as contra for-mam statuti This is necessary in all cases, where such act was not the ground of an action at common law. 1 Chitt. Plead. 360. Lee v. Clarke, 2 East 333. Thirdly, the remedy authorized by the statute, is a civil action, and not a criminal proceeding like the present. Hinman v. Taylor, 2 Conn. Rep. 357. 360. 2. That the plea in abatement was sufficient. First, because the complaint was made to one justice, and the proceedings were had before another. The statute requires the justice, to whom the complaint is exhibited, to issue a warrant and cause the person accused to be brought before him. Stat. 91, 2. Previous to the late revision, the statute was different. Stat. 100. sect. 2 ed. 1808. Secondly, because the defendant was found guilty, when probable cause was the extent of the enquiry, which the justice was authorized to make. Stat. 92. Waldo & al. v. Spencer, 4 Conn. Rep. 71. Thirdly, because the bond was ordered to be given to the treasurer of the town, and not to the adverse party, the town. Hollister v. White & al. 2 Conn. Rep. 338. Eaton, for the defendants in error. [MAJORITY — Daggett, J.] Daggett, J. The objections to the judgment of the county court, and by reason of which, it is insisted, the judgment ought to be reversed, will be briefly noticed, in the order taken by the plaintiff in error. 1. The original complaint is insufficient, because it is not alleged, that the town of Plainfield was interested in the support of the illegitimate child. It is said, according to the case of Morse v. State, 6 Conn. Rep. 9. an indictment or information upon a statute must state all the facts necessary to bring the defendant precisely within the statute There can be no doubt of the correctness of this principle; but on looking into this complaint, there appears no foundation in fact to sustain the objection. It is averred in the complaint, that the child is a bastard, born at Plainfield; — that the mother is a settled inhabitant of the town ; — that she has neglected to institute any suit for the maintenance of the child; — that no bond or other security hath been given to indemnify the town against the expense for the support of the child, which is a settled inhabitant of the town and likely to become chargeable thereto. It is difficult to see how the allegations could have been more apt and full to the purpose. 2. The act is not alleged to be “ contra formara statuti.” To give any force to this objection, it must appear, that the proceedings are not founded upon the statute, but rest upon the common law ; and as this is not an offence at common law, but is merely so by statute, it should have so appeared. The complaint is not only apparently, but by an express averment, instituted upon the statute. Thus, after stating the facts, it concludes : “ Whereupon the said town of Plainfield, by their selectmen, pray process against the said William Hopkins, that he may be arrested, and brought before proper authority, and be dealt with, as hy the statute, in such case made and provided, is directed.” The statute does not prohibit the begetting of a bastard child ; it simply provides how it shall be supported, and gives to the town interested in its support a peculiar remedy for indemnity. That remedy is here strictly, and “eo nom-ine.’’ pursued. 3. This is not such an action as the statute authorizes. In support of this objection Hinman v. Taylor, 2 Conn. Rep. 360. is cited. Nothing appears in that case, except that a process upon the statute is a civil suit. It is not there declared what shall be the form of the process ; nor are we furnished by the counsel with any form. It is believed, that the process here adopted is the only one known in practice ; and no solid reasons are suggested, why it is not entirely correct. These objections, therefore, fail. Sundry matters were pleaded in abatement of this process, before the county court, to which it was returned. The order of these will, in the consideration of them, be reversed. 1. The bond ordered to be given, and the bond given, was to the treasurer of the town of Plainfield, whereas the bond should have been taken to the “ adverse party,” to wit, the jown 0f Plainfield. Two obvious and sufficient answers to this ground of abatement present themselves. First, the bond was, in fact, and inlaw, ordered and given to the town of Plainfield, the adverse party. A bond to the town treasurer, is a bond to the town, and to no one else. Bradley v. Baldwin, 5 Conn. Rep. 288. A bond in this case could only be to the adverse party. Secondly, if it were not so, is this a ground of abatement 1 What if the defendant were not to be affected by the bond, is the process, therefore, to abate ; and even, if it were a cause of abatement, in any case, could the defendant be heard to allege it ? Can he be injured or affected by it ? 2. The justice of the peace before w hom the defendant in the process was brought, upon a hearing, found him guilty; whereas by the directions of the statute, he was authorized to order him to be recognized to appear before the county court, if he found probable cause . ~ By the record of the justice, it appears, that the defendant before him pleaded “ not guilty and he answered the plea in his judgment, by finding him guilty. It was not necessary, that the defendant should have pleaded at all; but as he did, and was found guilty, it is not easy to see why the justice should not bind him over to the county court. He found more than probable, even actual cause. The case of Waldo & al. v. Spencer, 4 Conn. Rep. 71. cited in support of the objection, proves it unfounded. 3. The last ground of abatement was, that this process was issued by one justice of the peace, viz. Joseph Eaton, Esq., and the person charged, was directed to be, and in fact was, brought before another justice, Francis B. Johnson, Esq. This is the only ground of error, worthy of consideration ; but it is not sufficient to reverse the judgment. It is said, and truly so, that the statute of 1821 is materially variant from that previously in force. By the former statute [sec. 2. of the ed. of 1808.] every assistant or justice of the peace might bind over to the county court, «fee. By the act of 1821, it seems, the justice of the peace, to whom the complaint is made, «fee., shall issue his warrant to cause the person charged to be brought before him, and he is to bind over, «fee. But this alteration, by the terms of it, affects only the process instituted by the mother, and has no bearing upon that instituted by the town. That is left, precisely where it was, (so far as this question arises) and therefore, it is to be presumed, that the legislature intended no alteration. It is well known, that under the former act, the process by the mother and that instituted by the town might alike be both issued by one justice of the peace, and made returnable before another; and since there is no alteration in the law of 1821 in relation to the process by the town, either in direct terms, or by fair implication, I think this process is good. This construction oí the statute is more readily assented to, because the acts to be done by the justice, are merely ministerial; and there can be no importance attached to the question, what justice shall perform this merely ministerial act. In Davis v. Salisbury, 1 Day 278. the court of errors held, that a justice of the town interested, might bind over to the county court, the person arrested. That decision has been acquiesced in, recognized, and followed, ever since. There is, then, no error in the judgment complained of. The other Judges were of the same opinion, except BRain-abd, J., who was absent. Judgment to be affirmed.