Coomes v. Knapp

The opinion of the court was delivered by Bennett, J. It has been determined by the courts of sev [546] eral of our sister states, that the proceedings on a complaint against the reputed father of a bastard child, to procure an order of filiation, under statutes similar to ours, are civil proceedings, and it was also so held in this state, in the case of Roby v. McNiece, 7 Vt. R. 419, and, consequently, amendments may be allowed. In the case of Hinman v. Taylor, 2 Conn. R. 358, upon a complaint under the bastardy act of that state, it was held to be good matter, pleadable in abatement, that the complainant was a minor, and did not prosecute by guardian or next friend ; and this, we think, is sound law, though applied to a statutory process of this kind, which is sui generis. Whether, where an infant plaintiff appeared by attorney, and judgment was rendered in his favor, this was only matter pleadable in abatement at the common law, and not of error, seems somewhat questionable. In Williams’ notes to Saunders, 2 Saund. R. 212, it is said to be matter of error, and New v. Long, Cro. Jac. 4, 1 Roll. 287, and Bartholomew v. Deighton, Cro. Eliz. 424, are cited to sustain the position. The latter seems to be an authority in point, it appearing from the report of the case that the judgment sought to be reversed was in favor of the infant; but the case in Cro. Jac. is silent in this important particular. In Bird v. Pegg, 5 B. & A. Rep. 428, it was decided, that where an infant defendant appears by attorney, and judgment is in his favor, the opposite party cannot make this the ground of error,and it seems to have been admitted by counsel, that no case was to be found in the books in which it had been held to be error,where the judgment was in favor of the infant party. In Schermerhorn v. Jenkins, 7 Johns. R. 373, it was held that the infancy of the plaintiff was not the ground of nonsuit at the trial, and that the defendant should have pleaded that matter in abatement, and that, by pleading in chief, he admits the due appearance of the plaintiff. The general rule of pleading requires that, which is only matter in abatement, to be pleaded before an imparlance, and matter which goes to the disability of the person of the plaintiff does not form an exception. If we regard the defendant’s plea and motion to dismiss as containing matter only of abatement, and not the ground of error, it might well be inquired whether he is not out of time in pleading it. But we are not disposed to decide the cause on this point. [547] There is other ground upon which we can satisfactorily proceed. The statute, under which this proceeding is had, provides, that when any single woman shall be delivered of a bastard child, or shall declare herself with child, and that such child is likely to be born a bastard, and shall, in either case, charge any person, in writing and upon oath, before any justice of the peace in the county, with having gotten her With child, and being the father of such child, the justice, on the application of such woman, shall issue his warrant, &c. The statute makes no distinction in the inception of this process. It extends to all single women, whether minors or not, and provides expressly that the warrant shall issue on her application. No good reason is perceived why a prochein ami should be needed to put this process in motion. The making of the complaint, under oath, is a personal duty, and cannot be performed by proxy. The revised statutes of New York require, that before any process shall issue in favor of infants, a prochein ami shall be appointed, and the case in 12 Wend. R. to which we have been referred, was decided under that statute. In England, if an infant is plaintiff, the writ may issue in his own name, but he must declare by prochein ami or next friend. The infant files his petition for the appointment of a prochein ami or guardian; with a written acknowledgment from the prochein ami that he consents to become such guardian, or they both appear before the judge, and the appointment is made by the special order of the court. If an infant be sued, without notice to his guardian, the writ will not abate. Potter v. Wright, Bray. R. 21. In such case, the court would continue the cause to cite in the guardian. It is sufficient, if, before he puts in his plea, a guardian is appointed to appear and defend for the minor. • When, in this case, the warrant had been issued and returned, and proceedings were to be had, to determine whether the person was chargeable or not, there was a propriety that the infant should have some one to prosecute for her, and we see no objection in allowing Mr. Dillingham to become the prochein ami. Then, indeed, would seem to be the most appropriate time for the appointment of one, rather than at the time of swearing out the process before the magistrate. We have no doubt that it was within the discretion of the court to allow, at the time they [548] did, Mr. Dillingham to take upon himself the prosecution of the suit. It was for the protection of the rights of the infant, and in no way prejudicial to the rights of the defendant. Perhaps the English practice of requiring, in all cases, a prochein ami to be appointed, by special order of the court, to prosecute for an infant, is the better practice, but we have not been thus particular, and it has been usual with us to permit a person, who appears before our courts in the capacity of a prochein ami or next friend, to act as such, without calling in question his right. When the prochein ami was permitted, under the order of the coúrt, to become a party to the prosecution, it of course removed the ground of the motion to dismiss. We see no objections to the course of proceeding of the court below, and the judgment of this court is, that there is no error in the records and proceedings of the county court.