Parker v. Way

Parker, C. J. The statutes respecting the maintenance of bastard children authorize a complaint by a married woman. 2 Salk. 483, Rex vs. Albertson ; 8 East 193, 202, Rex vs. Luffe. A child may be shown to be a bastard, notwithstanding the mother is under coverture. The legitimacy is presumed until the contrary is proved. 2 Stark. Ev. 218. The mother is not a witness to prove non-access; but she is a competent witness to prove the criminal connection, non-access being proved by other evidence. 6 Binney 283, Commonwealth vs. Shepherd. 8 East 193, The King vs. Luffe. She is admitted for that purpose on a question of settlement. We are inclined to the opinion that the complaint of the wife [50] is well, without joining the husband. The terms of the statute authorize a complaint by her. Nothing is said of joining the husband, and the reason of the thing shows that the case may form an exception. A case of this ldnd can rarely occur where the husband will take any interest in the proceedings, or when his interests can be injuriously affected by the legal proceedings. If the complaint of the wife alone is admitted to be valid under the statute, judgment may be rendered against her for costs, as if she were a feme sole. But however that may be, if the husband ought to have been joined, that matter could be taken advantage of only by plea in abatement, or by an objection to the proceedings on account of the nonjoinder. The process therefore was legal. It was not a proceeding to obtain compensation for past cohabitation or adultery, nor was it founded on any illegal consideration. It had reference to a provision for the maintenance of the child, and an order of filiation might have been made on it. As the process is of a civil character, although the form of the proceedings is criminal, it is ordinarily competent for the parties, if they see fit, to settle the prosecution so far as the complainant is concerned. If, however, the complainant upon an adjustment declines to prosecute farther, by a provision of the statute the town may come in and prosecute. The fact that the complainant is a married woman will not, we think, prevent the parties from entering into a compromise. If the husband interferes, perhaps his assent is necessary. Whether he might avoid a settlement made without his consent, we need not now consider. Provision for the maintenance of the child being the meritorious cause of the proceeding, the defendant, if ho acknowledges his liability, may bind himself by a note to the wife, if the husband do not object. The husband having made no election to avoid it, the note is valid against the maker. He camiot allege that the consideration is illegal. As it might have been shown that he was the father of the child and chargeable with its maintenance, the surceasing of the proceedings is a sufficient consideration for the note. We cannot concur in the opinion of the supreme court of Massachusetts, in Wilbur vs. Crane, 13 Pick. 290, that [51] upon a question whether the surceasing of process at law is a sufficient consideration for a promissory note, it is immaterial whether the process was void, or only voidable by plea in abatement. If only voidable by plea, the defendant might waive it and settle the claim, and the settlement would be good. It is said that tenants in common must join in trespass quare clausum. If one should sue alone, and the defendant should thereupon give a promissory note for his share of the damage claimed in consideration of the discontinuance of the suit, the nonjoinder would hardly be a good ground for avoiding the promise. A note to the wife may be treated as a note to the husband, lie may indorse or sue alone. But the wife may be joined in such case. Story on Bills 108, § 92 ; 2 M. & S. 392, Philliskirk vs. Pluckwell. The cause of action would seem to be one which would survive to him. If the wife might not have been joined, the objection of the coverture might have been taken on the trial. 2 Stark. Mo. 690 ; 1 Chitty's Pl. 436 ; 4 D. & M. 361, Caudell vs. Shaw. But as she might be joined, the objection of the nonjoinder of the husband, if there were no statute affecting the case, could only be taken in abatement. 2 Stark. Ev. 689; 3 D. & M. 631, Milner vs. Milnes; Com. Dig., Pleader, 2, A, 1; T Verm. R. 508, Lyman vs. Ellery; 13 Pick. 284, Wilbur vs. Crane. Furthermore, by reason of the desertion of the husband this settlement was valid under our statute of Dec. 24,1840, authorizing a wife to hold property she may acquire. Whatever may have been her previous conduct, it was not immoral for her to provide for the maintenance of the child with which she was pregnant. She might acquire property from the putative father, for that purpose. This note was property. She had a right to hold the property thus acquired, and as an incident the law enables her to sue upon it. When the law confers a right, it gives the means of enforcing it as an incident. 10 N. H. Rep. 305, Cocheco Co. vs. Whittier; Kittredge vs. Warren, Grafton, January term, 1844, [14 N. H. Rep. 509.] That the husband is not an alien, and does not reside out of the State, and that the statute of 1841 is not applicable to the case, is therefore immaterial. Judgment for the plaintiff.