Knight v. Priest

IIutchiNson, J. after slating the case, pronounced the opinion of the court. — The defence urged in the present case is, that there was no consideration for this note ; that the defendant ha3 been compelled to give bonds to indemnify the town just as if these several notes had not been given, nor any settlement mado with the mother. The defendants first contend, that the mother had no right to prosecute, till the town had neglected to prosecute. Upon this point the court consider, that the note establishes the plaintiff’s right of recovery, till avoided by the defendants’ proof. It rests upon the defendants to show, that she'was so destitute of right to prosecute, that her proceedings were void. This does not appear. The statute then in force, to be sure-, only gives the right to the mother upon failure of the overseers of the poor. When she prosecuted, Radway might have raised that question, by a plea in abatement, or motion to quash ; but his settling seems a waiver of this. If not, her prosecution was about a month after the birth of the child, and it does not appear when she first made oath upon the subject; and that she might have done before the birth, and the overseers might have known it. And there might be just grounds to suspect that Radway was about to abscond; when a very short delay on the part of the town would have authorized a prosecution by the woman. This point, therefore, depends upon several things concerning which there is no testimony; and the onus probandi being on the defendants, they would fail in this, were it important to their defence in point of principle. There is no view presented that shows any illegality of the process, to give to the transaction the character of duress, as the defendants have urged. 2d. It is urged, that the mother, on the settlement with her, agreed that Radivay should be prosecuted no further ; and, as he was prosecuted by the town, and compelled to give bonds, this consideration has failed. When we compare together all parts of this case, we cannot but see, that the mother must have meant, and Radway understood her to mean, the ceasing to prosecute her complaint, and not warranting against any prosecution by tho town. She could not controul any such suit; and it would re [511] quire an express contract of indemnity to render her responsible, that there should be none ; and more especially, to render her notes void, and her settlement of no use to her, without herreceiv-ing any benefit from such prosecution by the town. Bradley, for the defendants. John Phelps, for the plaintiff. The defendants’ counsel compare this to the cases cited by them, where notes are taken to the overseers of the poor, on a settlement made with them, and the bastard child died in infancy. In those cases the note was not adjudged void, but was treated a3 an indemnity. And surely the overseers had no right, as such, to take any security but what would operate as an indemnity. But the case is not precisely so with the mother. She may have equitable claims which the overseers could never have. But, if we should treat the securities taken on this settlement as an indemnity only, it would form no defence to this note. It appears from the case agreed to, and the deposition therein referred to, that, upon that settlement, Radway paid ten dollars and gave four notes of $25 each, payable at different periods, and that this is the note secondly payable : and the first nóte and ten dollars is all wre have a right to presume paid : and the case shows, that the mother has ever supported the child. This support must have exceeded the $35 dollars thus paid, and the mother must be equitably entitled to- have this note paid also. Moreover, tlie mother’s support of the child these almost eight years, is a saving of the defendants harmless from the very bond to the town, which they say is given. The trouble of giving the bond to the town is all the expenditure shown, which has not thus far been paid by the mother : and if we treat this bond as the defendants’ debt, the mother must have paid for the defendants on that bond more than all the amount paid and secured to her on settlement with Radway, The showing of the defendants does not impeach the considera-, tion of the note. The judgment of the county court is affirmed.-