Comstock v. Weed

Swift, Ch. J. I am of opinion that there is no error in the judgment complained of. The statute prescribes no form of judgment: a substantial compliance with it is sufficient. It says, that upon the production of certain evidence, the court, notwithstanding the denial of the defendant, shall adjudge him the reputed father of the child. This can only mean, that they shall, from such evidence, find him to be the reputed father. It appears, that the defendant, now plaintiff in error, pleaded not guilty ; and the court find him to be guilty. This is finding him, and substantially adjudging him, to be the reputed father of the child : and is, in substance, a compliance with the statute. The allowance of expenses at the birth of the child cannor be considered as extending beyond lying-in expenses. These have always been allowed. Such has been the practical construction of the statute : and it appears to me to be a reasonable one. IIosmeb, J, The objection to the judgment of the conn below, that Comstock was not adjudged to be the putative father of the child, is quite unfounded. The record shews, that the facts alleged in the complaint are true. This is adjudging him to he the father of the child, in the sense which the term “ adjudge” imports in the .statute. The law provides, “ that he who is accused, by any woman, to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, (being,examined up [158] on oath, and put to the discovery of the truth in the time of lid- travail) shall be adjudged the reputed father of such child, notwithstanding his denial thereof, and shall stand charged with the maintenance thereof, with the assistance of the mother, as the county court iri that county in which the child is born, shall order,” he. The statute prescribes, 1, that there shall be a complaint, or accusation, declaring that the person accused is the father of the child; 2. that the oat!» of the complainant, arid certain other testimony, shall be exhibited ; 3. that on this foundation, the person complained of shall bo adjudged, — that is, shall be found to be, — the father of the child ; 4. that the court shall make order, or render judgment, on the preceding farts. There can exist no reasonable doubt that the word adjudged meant nothing more than has been ascribed to it. The words succeeding in the law, “ notwithstanding his denial thereof,” derisively shew, that the object of the clause was, the facts, — not the adjudication upon fact. Although he denies the facts, yet if they are adjudged, or found against him, the court shall make order, that is, shall render sentence against him for the maintenance of the child. The supposition that the law enjoins on the court, explicitly, to adjudicate that the person complained of is the putative father, as the indispensable foundation of a subsequent sentence, is attended with a double absurdity. The statute, in that case, would read in this manner : On the facts having been found, the court shall render judgment against the accused, notwithstanding his denial thereof — that is, of the adjudication. Besides, that the law should prescribe, as an adjudication on preceding facts, which have proved the child to have been begotten by the defendant, that he shall be declared in the judgment to be the putative lather, is a ludicrous supposition. Whether the father or not, is, in its nature, a matter of mere fact, which no adjudication can diminish or alter. I am aware, that the English courts require an explicit adjudication, that the person presented is the putative father. The King v. Perkasse, 1 Sid. 363, The King v. Pitts, Doug, 662, This did not result from any expression used in the statute IS El-iz. c. 3. The later cases are all bottomed on The King v. Perkasse, expressed in the language of doubt, and in which the point seems to have been little considered. [159] To these decisions of the English courts, resting on the ground of precedent only, I oppose the immemorial form of decision in our courts. It has never been the practice, here to mention in the adjudicative part of the sentence, that the person complained of is the putative father; but this having been found, in terms, or in substance, as a fact, the order has been couched in expressions similar to those used in the present ease. The decision cited by counsel in argument from Massachusetts, (The Commonwealth v. Clark, 2 Mass, Rep. 156.) is founded on the peculiar phraseology of their statute of bastardy, (March 15, 1786,) and is wholly inap-posite to this case. A marked distinction is made by their law, between 1 he, finding and the adjudication. The objection which denounces the allowance of supplies at the birth of the child, is in the face of uniform usage, and a fair construction of the law. Bennett v. Hall, 1 Conn. Rep. 417. "Without wresting the statute, in the least degree, they may be considered as embraced in the expression “ shall stand charged with the maintenance5’ of the child, I shall long hesitate before I can believe, that the necessary assistance at the birth, so indispensable to the life of the infant, is not maintaining the child. As little am I willing to admit, that the law intended to relieve the putative father from a contri bution to this necessary expense. Gotfib, J. Of the errors assigned, two only appear to m'c to require consideration. As to the allowance of “ expenses at the birth,” — by which, it is said, must be understood the lying-in expenses, — it cannot be intended, upon this record, that those expenses were not, incurred for the preservation or maintenance of the child itself, at the time of its birth. And if such an intendment could be made, it might still require much consideration, whether a practical construction of the statute, built upon long and general usage, ought now to be overturned. But there is no necessity of deciding this point. For the conn cannot know, from the language of the record, that any lying-in expenses were allowed. Upon the other point (that the defendant below is no: expressly adjudged to be the putative father,) it may he remarked, that every reasonable intendment which is ncces sary to support au order of bastardy, ought to bo made : [160] though, in the present case, no intendment appears to me necessary. In the proceedings of the English quarter-scs-sions, an express adjudication, that the defendant is the putative father, is, for a substantial reason, indispensable. For, there being in those proceedings, no formal issue joined, the i( adjudging” of the defendant to be the putative father, is the established and only mode of finding the fact $ it is found in no other way. The clause, preceding the adjudication, (“ whereas, it hath appeared to us, See. that the said Jl. B. did beget the said bastard child,” Sec.) is, in form and effect, a mere recital of the examination had, and not in nature of a verdict, or finding. It corresponds, substantially, with that part of a common postea, which precedes the insertion of the verdict. Then follows the adjudication in question, (“ We do, therefore, adjudge the said Jl. B. to be the putative father,” Sec.,) which is the finding, and the only finding, of the fact j and the subsequent order of filiation is the judgment, or decree. It is manifest, then, that the reason, why such an adjudication is indispensable in the English practice, does not exist in ours. Here, it would be mere, useless, tautology : for, in prosecutions upon our statute of bastardy, there is a regular issue joined, as in actions at common law, — and as, in this case there was, upon the plea of not guilty. And as the defendant has, upon this issue, been found guilty; every rnaí erial allegation in the complaint is, of course, found to he true. Now, one of those allegations is, that the child, “ was begotten” by the defendant, which is, surely, to every intent, equivalent to an allegation, that he is the putative father; and it being found true, the defendant is necessarily found to be the putative father. I think there is nothing in either of the errors assigned,. The other Judges were of the same opinion. Judgment affirmed