Overseers of the Poor of Minden v. Cox — 7 Cow. 235

Majority

p. 234

Overseers of the Poor of the town of Minden against Cox.

NEW YORK,

May, 1827.

Headnote

± husband is no* bound to maintain his wife’s children, especially her illegitimate children, born before his marriage.

Where, on certiorari to this court, from the general sessions, removing their decision on an appeal from an order of filiation, it did not appear from the return that the alleged puta

On certiorari from the general sessions of Montgomery COUntv.

L. B. residing m the town of Mmden, being pregnant

p. 235

tivo father was proved to be in fact such; and the return did not state that the question Wuj made; held, that it was to be intended that this fact was proved.

& bastard chüd, three justices of Montgomery county made an order upon the overseers of that town, to relieve her in her lying-in and child-birth; and for the support of the child. The order was dated March 25th, 1824, before she was delivered of the child. On the 22d of April, in the same year, and after the birth of the child, they made an order of filiation against Cox, the defendant in error; and adjudged that he should pay $14 for lying-in expenses, and the support of the mother up to the time of making the last order; and 56 cents weekly, as.long as the child should remain chargeable to Minden. Cox appealed to the general sessions, where the above facts were in evidence; and it was also in proof that nothing had been paid *by the overseers of Minden, or any of them, for lying-in, or other expenses of the mother or child. It was also proved, that L. B. was a single woman, herself a bastard, born in Minden, and was about 18 or 19 years of age; that the child was also born in that town; that she had no property ; and lived with her grandmother. That her mother was married to one Keller, worth about $2000, who lived in Danube.

The statute compelling parents and children to maintain each other, extends only to natural relations.

Where a bastard child is likely to be born, and chargeable to a town, the justices may make an order upon the overseers of the poor to provide for the lying-in expenses of the mother, before the birth. And after the birth, they may make an order upon the putative father to pay those expenses in gross.

Such an order may be made, though nothing has been paid by the overseers under the 3rst order. The question of payment properly arises when the town seeks to enforce the order.

On this evidence, the court below quashed the order of filiation and maintenance, with costs against the respondents.

M. T. Reynolds, for the plaintiffs in error.

The sessions clearly erred in reversing the order in toto. It was good, at least, for the weekly allowance. Mo matter where the bastard was settled. The justices at or near where the child is born, are to make the order. (1 R. L. 306.) But the order was also good for the gross sum. There

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was a previous order of justices for maintenance. This f , , . , , ascertained the amount; and actual payment was not tenal.

W. I. Dodge, contra.

It did not appear by the evidence below, that Cox was -the father of the child. The respondents were bound to prove this. (1 R. L. 306, s. 12.) ISTor was the child chargeable at all. The husband of the grand- ' mother was abundantly able, and was bound to support it. (1 R. L. 286.) The town never was damnified; nor was it liable for a cent. The gross sum, at any rate, was altogether gratuitous. (4 Cowen’s Rep. 253.) The object of the statute is solely to indemnify the town. (Bac. Abr. Bastardy, (D,) p. 521. 3 Salk. 121, pl. 2.)

Reynolds, in reply.

The question whether Oox was the father, was not raised in the court below; and cannot be listened to here. It must be taken to have been conceded. If insisted on below, it might, and doubtless would have been put at rest.

If the order was defective in the gross sum, the reversal should have been confined to that, leaving the good* part to stand. These orders are usually made in anticipation, to meet the probable expenses of the town. In this view, it was valid. If the expenses are in fact incurred, they may then be enforced; otherwise, not. The order, therefore, was valid .m hoto.

It does not appear by the return of the sessions, on what ground they decided that the order of the justices should be quashed.

By our statute, (1 R. L. 280,) the settlement of every bastard child follows that of its mother: though, at the common law, a bastard was, in general, settled where born.^[1] The child, then, being born in Minden, is setted there, unless the mother has a settlement somewhere else.

[1] [1] The provisions of the New York Revised Statutes on this subject are as follows:— The reputed father, and the mother of a- bastard child, are liable for its support; and in case of their default, or inability, it must be supported by *237 the town or county where it is born. The mother of a bastard child, if unable to support herself during her confinement and recovery, or subsequent thereto, is, as well as her child, to be provided for, in all respects, as a pauper. The old system of compulsory removal of paupers is wholly abolished ; still, however, questions of settlement, between different towns in tho same county, may arise, which are to be determined by the superintendents of the poor. The rules, as to the legal settlement, for the purpose of maintenance, of a mother and her bastard child, are as follows: (1 R. S. 822, secs. 3 and 4; sec. 63.) 1. If the mother have no legal settlement in the county where the child is bom, they are to be supported at the expense of such county. 2. They must be supported at the expense of the county were the child is born, if such county be one of those where the distinction between town and county poor is abolished. It) however, the mother has been removed, or clandestinely brought, or enticed to remove, from any other part of the state, to avoid the charge of their support, the overseers of the .poor, or superintendents of the poor, have the same remedies therfor as in the case of paupers. 3. In counties where the respective towns support their own poor, thev are to be supported at the expense of the town where the child is born, if the mother have a legal settlement therein. 4. If the mother have a settlement in some other town, than that in which the child is born, of the same county, and which town is required to support its own poor, they are to be supported at the expense of such other town. In respect to the latter rule, it is to be observed, that although the mofe; and child are to be provided for at the expense of the town where the mother is legally settled, yet they are to be supported in the town where the child is born, unless they are taken voluntarily to the town chargeable. The proceedings to compel the town chargeable, to indemnify the town where they are supported, are to be conducted by the overseers of the poor. (Id. secs. 54, 68, and 63. Waterman’s Tr. pp. 313, 314.)

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The mother is herself a bastard, and was horn in Minden, jjer m0^erj it seems, is married to a man in Danube, who is of sufficient ability to maintain her. Where the settlement of the grandmother is, independent of her marriage, does not appear. After the marriage, it became the same with that of her husband. But the husband is not bound to maintain the children of his wife by a former marriage: a fortiori, he is not bound to maintain his wife’s bastard children. The statute compelling parents and children to maintain each other, being of sufficient ability, extends only to natural relations. (4 T. R. 118. 1 Stra. 190.) For aught appearing in this case, the mother and child both have a settlement in the town of Minden. The

child was therefore, before birth, likely to become chargeable to that town; and the justices were justified in making the order for the lying-in expenses; and, subsequently, for the weekly sustentation.

It is urged that it did not appear before the sessions that Cox was the father of the child. It does not appear by the return. That fact must have been shown to the justices, and taken for granted in the court of sessions. Mo objection appears to have been made on this ground, in that court, where the fact might have been shown; and *from the examination here had, it must be considered as conceded. Otherwise, the examination as to the settlement of the bastard was irrelevant and immaterial.

It is also argued that the town has not been damnified. Whether such was the fact, was not a material inquiry upon the appeal in the sessions. That question would arise upon a proceeding to enforce payment of the sums ordered. The case of Donely v. Rockfeller, (4 Cowen, 253,) was an action on a bond conditioned to indemnify the town. It was there decided that such an action would not lie, without showing actual payment of money; but that decision has been reversed on error. That case, however, as decided by us, would not support the principle contended for in this case.

It seems to me, therefore, that the court of general sessions erred in quashing the order of the justices.

Order of sessions reversed, and order of justices confirmed.