Humphrey v. Kasson

The opinion of the court was delivered by Isham, J. The Comp. Stat. 423 § 3, provides, that a justice before whom a person is charged with being the father of an illegitmate child, shall require him to enter into a recognizance to such woman, with sufficient sureties, conditioned that he personally appear before the county court, and answer and abide the order of the court thereon. If the person charged is adjudged to be the father of the child, and the court order the payment of specific sums of money for its support, the father is required at the term of the court, when the orders are made, to enter into another recognizance to abide and perform the orders of the court. This recognizance is a discharge of the one before the magistrate. Comp. Stat. 424 § 8, 9. The liability of the bail on the recognizance taken before the magistrate, may be discharged by a surrender of the principal, at the term, when he is required_to make his appearance. Simmons v. [763] Adams, 15 Vt. 681. Blood v. Morrill, 17 Vt. 598. Mather v. Clark, 2 Aik. 209. But the mere attendance in court by the principal, to defend the suit, is not sufficient for that purpose, there must be a formal surrender of the principal into the custody of the court, sedente cuña, and an exoneretur entered upon the record in discharge of the bail. If no such surrender is made, or recognizance entered into at that term of the court, the recognizance taken before the magistrate is forfeited, and it stands as security for the payment of such sums of money, as may be ordered for the support of the child. In this case, as no such surrender was made, and no recognizance entered into as required by the statute, the defendant is liable on the recognizance taken before the magistrate, unless the matters pleaded in bar constitute a defense. We do not see, upon the authorities, how the two first pleas in bar can be sustained. The first plea goes to the whole action ; the second, to the sum ordered to be paid and due September 1, 1851; in each of which, the sickness of the principal is relied on, as an excuse for not making the surrender, or entering into the recognizance. In the case of Wynn v. Petty, 4 East 102, the same facts were relied upon, on an application for further time to make a surrender; but the application was refused. The court remarked, “ that they thought the “ inconvenience ought rather to be borne by the bail who must be ££ fixed for not complying with their undertaking, than by the plain- ££ tiff who would, otherwise, be delayed of his right. That the “hardship of a particular case would not justifythemin departing “ from the established practice of the court, and where one party “ must’ suffer by the act of God, they could not interfere.” In Goodwin v. Smith, 4 N. H. 29, it was held, “ not to be a good plea “ in bar to a scire facias against bail, that the principal, on the “ first day of the term, when judgment was rendered against him, “ became sick, and so remained until after the return day of the “ execution, so that he could not have been removed without man- “ ifest danger to his life, and after the return day, died.” If the death of the principal had occurred before the liability of the bail had become fixed, an exoneretur would have been ordered, and perhaps the same rule would exist in other cases of legal impossibility, as in the case of a confinement of the principal in other person’s hands under the custody of the law. 16 East 389. But [764] when the liability of the bail is fixed, the subsequent death of the principal, will not have the effect to discharge him,. We think, however, that the facts stated in the third plea, constitute a defense to this suit. There can be no doubt, that as between the mother of the child and Johnson, the release executed by her, before, her marriage with Humphrey, will be a good defense to this suit, and will bar any further claim on him, arising out of that matter. Sherman v. Johnson, 20 Vt. 467, The release, however, will have no effect as against the town of Fayston, in which the mother had her settlement. When the overseer of that town filed the certificate of his intention to prosecute, control, and manage the suit, and to indemnify the mother from all- future costs, the town became the party, and the only one, who could control the suit. The mother could no longer be recognized, as such, until the town was indemnified, or security given for the support of the child, as provided for in § 14 and 22 of the act; in that event, the statute provides, that the powers granted to the overseer, shall cease. Comp. Stat. 425 § 14, and 426 § 22. To avoid the operation of that certificate, and give effect to the release, it is averred in the plea, that all the sums of money and costs, which under the order and judgment of the court were to be paid prior to the 1st of September, 1850, were paid and discharged ; that the town of Fayston, is no longer subject or held.to support the child; that, they have no interest in the remaining sums ordered to be paid, which remain unpaid; and that this suit is now prosecuted by Humphrey and wife for their sole use and benefit, and that they are the real parties in interest. No objections have been taken to the form of this averment; we are, therefore, to regard it as stating, that the town of Fayston, are secured or indemnified against the support of the child, and all previous costs and expenses paid. Under such circumstances, the overseer has no longer any control of the suit. His authority as such overseer in the management of that suit, has ceased. But as the proceedings were originally commenced by the mother, her right, to prosecute and control the same revived, when the right of the overseer ceased, and in her own right she would be entitled to receive the remaining sums ordered to be paid. But when she resumes the further prosecution of the matter, she does it, subject to every defense that exists between her, and the person charged as [765] father of the child. When the judgment was rendered, and the money ordered to be paid, the release which was given to the defendant could have no effect. Its existence and effect ivas not, and could not have been involved, in any issue formed between the town and the defendant. The defendant was prevented from availing himself of it, by the entry of the certificate of the overseer. But when his interest and right as overseer has ceased, and the mother is prosecuting the suit for her benefit, the release pleaded in bar, is a good defense as to her. If the town are not entitled to the sums of money ordered to be paid, the plaintiffs cannot claim the amount against their release. The judgment of the County Court must be reversed, and the case remanded.