Welch v. Clark , 50 Vt. 386 ( 1877 )

The opinion of the court was delivered by

Redfield, J.

The exceptions of the defendant would be well taken if the plaintiff of record is to be regarded as merely a witness and not a party. The record shows that the case was prosecuted by the town of Ryegate. It has been held that the town in such case has no ownership of the suit, and holds the avails in trust for the plaintiff, with the right, when the burden of support is cast upon the town, to apply such avails to the extent required, in support of the child. And it is the duty of the town to pay over to the mother all moneys not so expended.

The prosecution must be in the name of the mother; and she and the child have the sole interest in such prosecution. Drake et ux. v. Sharon, 40 Vt. 35.

The plaintiff is, then, a party in the trial, though by statute she is made a witness. Her declarations out of court are, therefore, evidence in chief; and whether plaintiff had testified or not, Carrick’s testimony is evidence of the fact that she was unduly influenced by Welch to testify as she did, and that “ she was very sick, and did not understand what she was doing,” at the time she testified, was admissible. It was lawful, then, to call Welch as a witness, to prove that the fact was not what she had admitted it to be to Carrick ; and in this there was no error.

Judgment affirmed.