Stevens v. Howard , 12 Johns. 195 ( 1815 )

Per Curiam.

There is no proof whatever appearing upon the return, to show that the bastard chi Idten were put into the keeping of the plaintiff by the defendants, or that there was any express promise or engagement on their part, to pay her for their maintenance; nor is there any evidence that the defendants had received any money directed by the orders to be paid for the purpose of the maintenance of the children; and the law will not raise .a promise upon the mere naked fact, that orders were made out, admitting such orders were sufficiently proved. This is imposing no hardship upon the mother; she is not bound to keep the children; she could, at any time, throw them upon the overseers of the poor, unless she had made a contract to keep them; and, if so, she was bound to show it, in order to make the defendants personally liable. Besides, it was incumbent upon the plaintiff, to show that these children continued chargeable to the town; for the order, if in the usual form, only directs the payment of the weekly allowance, so long as the bastard children shall be chargeable to the town: so, that it is not necessarily to be inferred that the overseers had received the money upon the orders ; and the defendants offered to prove, that the children Were not paupers of the town of Dover, which was overruled. By this we are to under?. stand, they offered to show that the town was not chargeable with their maintenance. There certainly could be no objection to such proof, if made out legally. In Avhat >vay it ivas intended to be made out, does not appear- If the toAvn Avas not chargeable, the law Avould certainly raise no obligation upon the ovérseers of the poor, to defray the expense of their maintenance. The judgment must, therefore, be reversed ; and we give no opinion as to the sufficiency of the notice to produce the orders.

Judgment reversed,