Mariner v. Dyer

Weston J.

In the proceedings before the justice, the party accused recognized for his appearance before the next Circuit Court of Common Pleas, to answer to thé complaint preferred against him; instead of giving bond according to the statute. At the next term of the Common Pleas he appeared by attorney to answer to the complaint, and also at the succeeding term; as appears by the record before us. It has been decided that a recognizance, taken in a proceeding of this sort, is inoperative and cannot be enforced against the recognizors. Merrill v. Prince, 7 Mass. 396. The justice should bind the party over to answer to the charge before the proper tribunal, by bond with sureties.

It is insisted that a bond was necessary to give jurisdiction to the Common Pleas. We cannot assent to the correctness of' this position. 3f the authority of the Court to proceed dependcd upon the giving of the bond, their authority, as well as the right of the complainant to prosecute, might be defeated by the refusal or inability of the party charged to find the security required. The support of the infant, a portion of which, by the humane provisions of the law, is to be imposed upon the putative father, is an immediate charge, and it could never be intended dr tolerated that the party accused should,, by his obstinacy, suspend or delay, without good and sufficient cause, the investigation of the truth of the complaint preferred against him, upon which his liability is made to depend. A bond is required for the security of the complainant; and the respondent having appeared, and made no objection to the regularity of the proceedings, he ought not now, in the opinion of the Court-, to be permitted to assign, as an objection on his part to their validity, either the omission of the justice to take such bond, or of the Common Pleas to require a recognizance for his appearance at the second term» But we are not to be understood as intimating that these proceedings could have been sustained, had there been no appearance on the part of the respondent before the Court of Common Pleas, where the complaint was entered.

It is further urged that the Court could not legally adjudicate upon default, without the intervention of a jury. The statute prescribes, that certain preliminary steps being taken, which existed in this case, the respondent shall be adjudged the putative father, of the child, unless from the pleas and proofs by him produced, and other -circumstances, the jury shall be of opinion that he is not guilty. Slat. 1785, ch. 66. The interposition of the jury is provided for his benefit; and if the respondent in this case thought proper to forego the chance of an acquittal by them, of which he might have availed himself, he cannot at this time be received to object that the verdict of a jury was not taken which could only be necessary upon his denial of the charge, to pass upon the testimony by him exhibited, compared with that which the statute has made evidence in behalf of the complainant.

The course of proceeding, in certain of its prominent features, was regulated by the statute before cited; but in many particulars, where that was silent, it was necessarily governed by the common law and by the practice and usage of the Court, to whose jurisdiction the subject matter was referred. If the party accused denied the charge, and put himself upon the country for trial, the jury were to determine the question of his innocence or guilt. If he pleaded guilty, the Court entered up judgment against him upon his own confession. . But it he wilfully and obstinately refused to answer, he could not thus elude the justice of the Court; but they might proceed to adjudge him the putative father, if they found the preliminary proceedings and the evidence exhibited to be in accordance with the statute,

By the revised statutes, ch. 72, § 1, which passed since the judgment in the case before us was rendered in the Court below, the Court of Common Pleas arc now authorized, in express terms, to adjudicate upon the confession or default of the party charged.

Another exception taken to the judgment in this case is, that the Common Pleas had no authority to direct that a certain sum should be paid weekly to the mother, until the further order of Court; and a case is cited from 2 Shower, 129, where a similar order in a bastardy case was quashed upon this ground. The case in Shower is very briefly reported ; but it would undoubtedly be an authority in point, provided the language of the English statute, under which the justices there acted, be found to be the same with that, under which the Common Pleas proceeded. The English statute, which is that of 18 Elizabeth, ch. 3, prescribes, as well for the punishment of the parents, as for the relief of the parish, that two justices, quorum unus, shall charge “ the mother or reputed father with the payment of money “ weekly, or other sustentation for the relief of such child, in “ such wise as they shall think meet and convenient.” The language of our statute is, that “ he shall be adjudged the re- “ puted father of such child, notwithstanding his denial, and “ stand charged with the maintenance thereof, with the assist- “ anee of the mother, as the justices of the same Court shall “ order.” It may be urged, that the principle of the case in. Shower applies with equal force to cases arising under our own. statute; but we do not consider this point settled by the authority of that cáse, a different usage prevailing here, and the decision there being predicated upon a statute varying in its terms from our own, and prescribing, not that a sum shall be paid by the reputed father to the mother to aid her in the support of the child, but that a weekly sum, to relieve the parish from the charge of its maintenance, shall be paid by the reputed father- or by the mother.

Upon examination it has been found, that this form of adjudication, under our statute, has been extensively, if not uniformly, adopted. The party is to stand charged, “ as the justices shall order.” Their first order is necessarily predicated upon existing circumstances. By inserting therein the limitation, “ until' “ the further order of Court,” they reserve to themselves the power to order the weekly sum imposed to be increased or diminished, or to be altogether discontinued, as the equity of the case, having a due regard to the necessities of the child, and the situation of the parties, may from time to time require. We do not consider this reservation of the power to exercise a further discretion on their part, unreasonable or unwarrantable. It is impossible precisely to foresee the period, when the charge ought to cease. Much will depend upon the health and capacity of the child. It is not to be presumed that the Court will change or modify their order, without first giving due notice to the parties to be affected; or that they will refuse to discontinue the charge, when the necessity, upon which it is founded, no longer exists.

The authority of the Court to award costs is controverted. This process is regarded as a civil remedy; and for that reason depositions, which can be used only in civil causes, are received in prosecutions of this sort. Whether within the technical meaning of the statute which gives costs in all actions to the party prevailing, they could properly be allowed in this case, might admit of doubt.; but as they have in practice, so far as we have been able to ascertain, been uniformly awarded and acquiesced in, we do not feci warranted to disturb the proceedings upon this exception.

The last point taken is, that the Common Pleas transcended their powers in directing a capias against the accused, upon his avoidance. The right to order a capias is incident to their jurisdiction in all cases of contempt. They are expressly authorized by the statute to commit the party charged to prison. until he find sureties to perform their order. If he avoid, a capias becomes essentially necessary to the due and proper exercise of this authority.

Upon full consideration the opinion of the Court is, that the judgment and proceedings of the Common Pleas ought to be affirmed.

Note. — The Chief Justice haying formerly been of counsel for one of the parties, did not sit in this cause.