Hopkins v. Town of Plainfield , 7 Conn. 286 ( 1828 )

Daggett, J.

The objections to the judgment of the county court, and by reason of which, it is insisted, the judgment ought to be reversed, will be briefly noticed, in the order taken by the plaintiff in error.

1. The original complaint is insufficient, because it is not alleged, that the town of Plainfield was interested in the support of the illegitimate child. It is said, according to the case of Morse v. State, 6 Conn. Rep. 9. an indictment or information upon a statute must state all the facts necessary to bring the defendant precisely within the statute There can be no doubt of the correctness of this principle; but on looking into this complaint, there appears no foundation in fact to sustain the objection. It is averred in the complaint, that the child is a bastard, born at Plainfield; — that the mother is a settled inhabitant of the town ; — that she has neglected to institute any suit for the maintenance of the child; — that no bond or other security hath been given to indemnify the town against the expense for the support of the child, which is a settled inhabitant of the town and likely to become chargeable thereto. It is difficult to see how the allegations could have been more apt and full to the purpose.

2. The act is not alleged to be “ contra formara statuti.” To give any force to this objection, it must appear, that the proceedings are not founded upon the statute, but rest upon the common law ; and as this is not an offence at common law, but is merely so by statute, it should have so appeared. The complaint is not only apparently, but by an express averment, instituted upon the statute. Thus, after stating the facts, it concludes : “ Whereupon the said town of Plainfield, by their selectmen, pray process against the said William Hopkins, that he may be arrested, and brought before proper authority, and be dealt with, as hy the statute, in such case made and provided, is directed.” The statute does not prohibit the begetting of a bastard child ; it simply provides how it shall be supported, and gives to the town interested in its support a peculiar remedy for indemnity. That remedy is here strictly, and “eo nom-ine.’’ pursued.

3. This is not such an action as the statute authorizes. In support of this objection Hinman v. Taylor, 2 Conn. Rep. 360. is cited. Nothing appears in that case, except that a process upon the statute is a civil suit. It is not there declared what shall be the form of the process ; nor are we furnished by the counsel with any form. It is believed, that the process here adopted is the only one known in practice ; and no solid reasons are suggested, why it is not entirely correct. These objections, therefore, fail.

Sundry matters were pleaded in abatement of this process, before the county court, to which it was returned. The order of these will, in the consideration of them, be reversed.

1. The bond ordered to be given, and the bond given, was to the treasurer of the town of Plainfield, whereas the bond should have been taken to the “ adverse party,” to wit, the jown 0f Plainfield.

Two obvious and sufficient answers to this ground of abatement present themselves.

First, the bond was, in fact, and inlaw, ordered and given to the town of Plainfield, the adverse party. A bond to the town treasurer, is a bond to the town, and to no one else. Bradley v. Baldwin, 5 Conn. Rep. 288. A bond in this case could only be to the adverse party. Secondly, if it were not so, is this a ground of abatement 1 What if the defendant were not to be affected by the bond, is the process, therefore, to abate ; and even, if it were a cause of abatement, in any case, could the defendant be heard to allege it ? Can he be injured or affected by it ?

2. The justice of the peace before w hom the defendant in the process was brought, upon a hearing, found him guilty; whereas by the directions of the statute, he was authorized to order him to be recognized to appear before the county court, if he found probable cause . ~ By the record of the justice, it appears, that the defendant before him pleaded “ not guilty and he answered the plea in his judgment, by finding him guilty. It was not necessary, that the defendant should have pleaded at all; but as he did, and was found guilty, it is not easy to see why the justice should not bind him over to the county court. He found more than probable, even actual cause. The case of Waldo & al. v. Spencer, 4 Conn. Rep. 71. cited in support of the objection, proves it unfounded.

3. The last ground of abatement was, that this process was issued by one justice of the peace, viz. Joseph Eaton, Esq., and the person charged, was directed to be, and in fact was, brought before another justice, Francis B. Johnson, Esq. This is the only ground of error, worthy of consideration ; but it is not sufficient to reverse the judgment.

It is said, and truly so, that the statute of 1821 is materially variant from that previously in force. By the former statute [sec. 2. of the ed. of 1808.] every assistant or justice of the peace might bind over to the county court, «fee. By the act of 1821, it seems, the justice of the peace, to whom the complaint is made, «fee., shall issue his warrant to cause the person charged to be brought before him, and he is to bind over, «fee. But this alteration, by the terms of it, affects only the process instituted by the mother, and has no bearing upon that instituted by the town. That is left, precisely where it was, (so far as this question arises) and therefore, it is to be presumed, that the legislature intended no alteration. It is well known, that under the former act, the process by the mother and that instituted by the town might alike be both issued by one justice of the peace, and made returnable before another; and since there is no alteration in the law of 1821 in relation to the process by the town, either in direct terms, or by fair implication, I think this process is good. This construction oí the statute is more readily assented to, because the acts to be done by the justice, are merely ministerial; and there can be no importance attached to the question, what justice shall perform this merely ministerial act. In Davis v. Salisbury, 1 Day 278. the court of errors held, that a justice of the town interested, might bind over to the county court, the person arrested. That decision has been acquiesced in, recognized, and followed, ever since.

There is, then, no error in the judgment complained of.

The other Judges were of the same opinion, except BRain-abd, J., who was absent.

Judgment to be affirmed.