Fuller v. Town of Hampton

Hosmer, Ch. J. I shall confine my opinion in this case to the question, whether the complaint of the town of Hampton is sufficient. The right of an action is given to the plaintiffs below, by the statute providing for the support of bastard children ; and the suit is brought upon the statute. There is no remedy at common law for the town of Hampton ; and if there were, it would be unavailable in the present action. They must bring themselves within the statutory remedy, and aver every fact, which the law has made a prerequisite to their recovery. One indispensible fact is the neglect of the mother of a bastard child to bring forward her suit for its maintenance. “ The town interested in the support of a bastard child, when sufficient security shall not be offered to indemnify such town against all charge and expense for the support of such child, and the mother neglects to bring forward her suit for maintenance, may institute a suit against the person accused of begetting such bastard child." Stat. 92, tit. 8. s. 2. The neglect of the mother to bring forward her suit, is a sine-qua-non of the town’s right to bring forward a suit. This condition precedent is not, that, the mother has not prosecuted her action to final judgment, but that she has not brought it forward at all. If a suit is depending in her favour, there is no reason for sustaining an action in behalf of the town ; because in the mother’s suit, the recovery is, not only co-extensive with her claim, but that the town be indemnified. From a very early period to the present time, it has been, and is, a maxim of construction, that every thing shall be taken [423] most strongly against the party pleading, and every body is presumed to make the most of his own case. Co. Litt. 303. 1 Chitt. Plead 241. 1 Wms. Saund, 259. n. 8. From this it follows irresistibly, that the plaintiff in his declaration cap only have credit for facts expressly averred, or such as result, by necessary inference. Upon this principle, it has been adjudged, where tenant in tail levies a fine with proclamations, he ought to allege expressly, that it was a fine with proclamations, otherwise it will be intended to be a fine only at common law. Stowel v. Lord Zouch, Plowd. 361. b. Moor 220. In the case before us, the plaintiffs below averred in their declaration, that “ the said Clarissa Neff, the mother of said child, has, at all times, neglected and omitted to bring forward, in her own name, and prosecute to final judgment, her suit.”. This allegation is not aided or affected, by the other averments in the plaintiffs’ declaration, or by any implication arising from them, and therefore must be construed by itself ; nor is it aided, by the finding of the court. A verdict cures no omission in the declaration, unless the matter omitted was a circumstance necessary to some of the facts charged. Nothing is to be presumed after verdict, but what is expressly stated in the declaration, or what is necessarily implied from those facts which arts stated. Buxendin v. Sharp, 2 Salk. 662. Rushton v. Aspinall, Doug. 679. Spieres v. Parker, 1 Term Rep. 141. The case, then, so far as the declaration of the plaintiffs is concerned, depends exclusively on the proper answer to this question, viz. whether an averment that Clarissa Neff had neglected and omitted “ to bring forward, in her own name, and prosecute to final judgment, her suit,” is an allegation, that she had neglected and omitted to bring forward her suit? Certainly not. She might have instituted her action, and the suit be depending before the court, and yet the averment be literally true. The most rigid certainty is not required in declarations; but certainty to a certain intent in general, is indispensible. In degree, it supposes certainty to a common intent, and means “ what, upon a fair and reasonable construction, may be called certain, without recurring to possible facts, which do not appear ; (1 Chitt. Plead. 237.) and in connexion with the rule, that the declaration is to be construed most strongly against the party pleading, it inhibits a construction beyond the plain intendment of the words used. But, on this subject, refined criticism is unnecessary. The allegation of the plaintiffs below proves, not with the lowest degree Of certainty, that Clarissa Neff had [424] not brought her suit, and that it was not depending. It does evince, that she had not obtained final judgment, but not that she had not attempted, and was not attempting, by suit actually instituted, to obtain it. I should gladly seize on any legal presumption to sustain the finding of the court ; but there is not the least ground to presume any thing beyond the averment. The court could not enquire, whether a suit was depending, and stop here ; because this was not denied, nor the contrary averred. It was very ingeniously, suggested, that the court might expunge the word and, in the recited sentence, and substitute or ; but this unfounded assertion there was no attempt to support ; and it was well that no such effort was made. I am clear, beyond the slightest doubt, that the declaration of the plaintiffs below is insufficient ; and that in the judgment of the county court there is manifest error. Peters, J. The case before us, is a writ of error, brought to reverse a judgment of the superior court affirming an order of the county court, in a prosecution for indemnity against the maintenance of a bastard. The record presents a multitude of points for consideration ; but the counsel for the plaintiff in error have wisely reduced them to four. 1. That the complaint is insufficient. 2. That it was improperly amended. 3. That improper testimony was admitted. 4. That the order of the county court is informal. 1. The complaint is said to be insufficient, because it does not aver explicitly, that the mother had neglected to bring forward her suit for maintenance. This certainly is a material averment, and the foundation of the complainants’ right to interfere. The allegation in the complaint is, “ that the mother of said child has, at all times, neglected and omitted to bring forward, in her own name, and prosecute to final judgment, her suit for the maintenance of said child.” The objections to this averment savour more of verbal criticism than of law or logick. Read with the eyes of common sense (generally the safest medium,) it presents but a single object, viz. That this woman has either never commenced, or has abandoned her suit. To bring forward a suit, is to commence it ; and a suit is not commenced until process is served Jencks v. Phelps, 4 Conn. Rep. 149. Had Clarissa destroyed her process as soon as it was served, the averment would have been literally true, and the right [425] of the town to prosecute perfect. But if this averment is imperfect, it is cured by verdict. The fact intended to be averred is found by the court. The general rule is, that a verdict will aid a title defectively set out, but not a defective title, 1 Swift’s Dig. 777. Crouther v Oldfield, 1 Salk. 365. Had this allegation been entirely ommitted, the title set out would have been defective ; but it is so defectively set out, that we know not whether Clarissa omitted to bring forward, or has abandoned, her suit. We therefore presume the fact was proved, as it ought to have been alleged. 2. The complaint, it is said, was improperly amended. I concur in the wish of Lord Kenyon in Rex v. Mayor of Grampond, 7 Term Rep. 699. “ that that could be attained, which Lord Hardwicke lamented could not be done “That these amendments were reducible to some certain rules.” But there being no such rules, each particular case must be left to the sound discretion of the court. But the judicial exercise of discretion is not a proper subject for a writ of error ; (Mandeville & al. v. Wilson, 5 Cranch 15.) though I do not mean to say, that inferior courts may, in all cases, permit or refuse amendments without controul, for judges are bound “ discernere per leges.” It is a well settled rule, that the allowance or refusal of an amendment, or the granting or refusing of a new trial, or a continuance, cannot be assigned for error, “This Court,” say the Supreme Court of the United States, in Mar. Insurance Co. v. Hodgson, 6 Crunch 206. “do not think, that the refusal of an inferior court to receive an additional plea, or to amend one already filed, can ever be assigned for error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of every case, than on any precise and known rule of law, and of which the superior court can never become fully possessed, that there would be more danger of injury in revising matters of this kind than what might result, now and then, from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial, or not to continue a cause. But in neither case, can the party be relieved, by a writ of error.” The same principle has been repeatedly recognized by this Court. White v. Trinity Church, 5 Conn. Rep, 187. and the cases there cited. 3. It is next claimed, that improper testimony was admitted. First, the complainants prosecuted their suit, by Roger Taintor and others, their agents and select-men. Taintor was admitted as a witness ; and it is now said, he was liable for costs [426] and interested in the event of the suit ; and so was every inhabitant of the town of Hampton. His interest was merely corporate ; and it is every day’s practice to admit members of public corporations to testify, when such corporations are parties. Swift’s Ev. 57. 1 Swift’s Dig. 743. Had the defendant below been acquitted and recovered his costs, an execution therefor would not have been issued against the select-men individually or collectively. It must have been issued against the property of the inhabitants of the town ; and such is the invariable practice. 1 Swift’s Dig. 794. Secondly, the objections to the testimony of Patience Neff are equally futile. She was properly admitted to corroborate the testimony of her sister, whose character had been impeached; (Swift’s Ev. 123. Lutterell v. Reynell, 1 Mod 283.) and not to disclose offers made by the defendant under the confidence of a compromise merely to bay his peace. This part of the case cannot be distinguished from Hartford Bridge Co. v. Granger & al. 4 Conn. Rep. 142. where it is said, by the court “that it is never the intendment of the law to shut out the truth, but to repel any inference which may arise from a proposition made not with a design to admit the existence of a fact, but merely to buy his peace. If an admission, however, is made, because it is a fact, the evidence to prove it is competent, whatever motive may have prompted to the declaration.” 4. The order of the county court, it is said, is informal. Issue was joined on the defendant’s plea of not guilty ; which pm in issue all the facts alleged in the complaint ; and the county court, by finding the defendant guilty, found them true. The order is the inference of law from the facts found, and in exact conformity with the statute. Title 8. p. 92. “ If the court shall find the defendant guilty, they shall make an order, that b shall give a bond, with sufficient surety, to such town, to indemnify them against all expense for the maintenance of such child, &c." I am, therefore, of opinion, that there is no error in the judgment complained of. Brainard and Bristol, Js. were of the same opinion. Judgment affirmed