Town of Chaplin v. Hartshorne , 6 Conn. 41 ( 1825 )

Bristol, J.

The exceptions taken to the complaint, by way of abatement, appear to me unimportant, if not frivolous. Many of them are unfounded in fact, as appears from the complaint. The objection that only one of the select-men made oath to the complaint, could only be sustained by the express requirements of the Statute; and the statute is silent on the subject. The complaint was sworn to, by one of the selectmen ; and the warrant did not issue without being supported by oath.

The allegation respecting the mother’s having neglected to bring forward a suit for maintenance, is made in the same words, as in the case of Fuller v. Hampton, 5 Conn. Rep. 416. which was decided to be sufficient,

The remaining question is, whether the select-men were bound to use the mother of the bastard child as a witness ; she being alive and present in court. In prosecutions by the mother, her testimony is made not only competent, but indispensable to maintain the suit, by the express provisions of the statute. “ And if such woman shall continue constant in her accusation, being examined upon oath, and put to the discovery in the time of her travail, such accused person shall be adjudged to be the reputed father of such bastard child.” (Stat. 92.) With respect, then, to prosecutions by the mother, her oath, as well as discovery in the time of her travail, appears to be rendered necessary ; and for obvious reasons. It would be sufficient for the mother, if the statute had made her a competent witness; but the legislature thought proper, for the security of the reputed father, that he should not be adjudged the father, without her oath.

But the provisions of the second section, (Stat. p. 92.) enabling select-men to prosecute for security to the town against expense, are wholly different : nor do the same reasons exist why her oath should be made indispensable. This section of the statute provides, that in certain cases the select-men of a town may bring forward a suit to obtain security of the reputed father against expense to the town, but is silent with respect to the evidence, by which the suit is to be supported; and the plaintiffs may, of course, make out the necessary proof, by any competent testimony, as in all other cases. The decision in Davis v. Salisbury, (1 Day’s Rep. 278.) that where the prosecution is by the select-men, the mother need not have been examined during travail, is conclusive on this point. If her oath was essential to maintain the suit in favour of the selectmen, her discovery of the father, during travail, would be equally necessary.

Without relying, then, upon the mother’s being disqualified, by a conviction for theft, I think the prosecution might have been sustained, without her testimony ; and the judgment of the superior court, ought, accordingly to be reversed.

The other Judges were of the same opinion.

Judgment reversed.