Majority
p. 486‡Falls & Smith, late overseers of the poor of New Windsor against John Belknap.
Headnote
That a person is liable to be rated for the poor of” a town, does not render him an incompetent witness in a cause in which the town is interested as to the maintenance of a pauper. A previous order of a justice of peace, is not necessary where security is given by a bond for the maintenance of a bastard child, or helpless, pauper; but only in the case of voluntary application of the pauper himself for relief. The question of settlement cannot be tried in an action, brought on a bond given to indemnify a town for the support of a bastard child; and the party is estopped by his bond, from alleging that the place of settlement was in another town. The surety of such indemnity bond, given to save harmless the town, from time to time hereafter, is ffiolden, after the child has arrived at the age of 21 years, and as long as he shall continue chargeable.THIS was an action of debt on a bond. The cause ... ■ was tried at the Orange circuit, in May, 1305, before Mr. Justice Thompson.
p. 487
The bond was dated the 21st August, 1794, and executed by the defendant and one Thomas Belknap, now deceased. The condition was as follows : “ That if the “ above bounden Thomas Belknap and John Belknap, or any of them, their or any of their executors or admini66 strators, do and shall from time to time, and at all times u hereafter, well and sufficiently save, defend, keep harm- “ less and indemnify the above named Alexander Falls u and Jacob Smith, overseers of the poor, for the time be-66 ing, of the town of New-Windsor, and every of their suo 41 cessors, and also all and every other inhabitant, which fx now or hereafter shall be of the said town, and every “ of them, &c. from the educating and instructing, bring-w ing up and providing for a male bastard child of which, “ E. H. was some years ago delivered, whereof T. B- “ was the reputed father, and of and from all actions, “ costs, See. then,” See. At the trial, a freeholder and inhabitant of the town of Nezv-Windsor, was called to prove that the town had been damnified, &c„ The witness was objected to, on the part of the defendant, as incompetent, but the objection was overruled by the judge, and the witness examined. It appeared in evidence, that the bastard child was and had been since its infancy, so infirm, in body and mind, as to be entirely helpless. Prior to the execution of the bond in question, it had been supported by its putative father. In 1795- or 1796, it was placed out by the overseers under the care of its mother, to whom they agreed to pay the annual sum of 75 dollars, for its maintenance; and the child has ever since continued with its mother who is a married woman, and has been provided with every thing suitable for its support, for the annual sum of 75 dollars, which was admitted to be reasonable. The putative father of the child is dead and the present defendant paid for its maintenance during one year; since 1795. The overseers of New-Windsor paid also for one year, ending April, 1801, but it did sot appear that any order had been made by a justice or
p. 4881. A liability to be rated does not render a person an incompetent witness in such a case.[11] On general principles, the interest appears. too remote to render the witness incompetent. Besides, it is the disposition of courts, in more modern cases, to let objections of this sort, where the interest is trifling, or uncertain, go to the credit rather than to the competency of a witness.[12] Yet if the rule were otherwise in Great Britain, still in this country, where the poor are supported by the fees on tavern licences, and the penalties created by the act for the regulation of inns and taverns,[9] such an objection ought not to prevail. 2. From the second section of the act,f) it will appear that no order was necessary in this case. The justice may issue a warrant, and commit the putative father, until he either give a bond with a sufficient se
justices of the peace, for the payment of the said sum of 1 1 J seventy-five dollars, or any other sum of money by the overseers, for that purpose. It was objected that this evidence did not support the pleadings on the part of the plaintiffs ; but the judge overruled the objection. It was then offered on the part of the defendant, to prove that the child'was bom the 10th of March, 1778, in the town of Nexvburgh, and was of course settled in that town by birth, of which the plaintiffs had notice prior to April, 1800. This evidence was objected to by the plaintiffs’ counsel, and was overruled by the judge, because, the defendant by executing the bond in question, and afterwards' paying one year’s maintenance oí the child, had admitted its legal settlement to be in the town of Nexo-Windsor. The defendant then offered to prove, that since the first Tuesday in April, 1800, he had offered to the overseers of the poor to take the child himself, and support it at his own expense, which they refused; this evidence being objected to, was overruled by the judge. A verdict was then taken for the plaintiffs by consent, subject to the opinion of the court on a case, in which the above facts were stated.
Fisk, for the plaintiffs.
p. 4891. It is true, that the English courts have decided, that where a person is only liable, but had not been actually rated, he is a competent witness. Our act peremptorily requires each town to support its own poor, and every freeholder of the town to contribute to their maintenance. Certain fees and penalties, are ordered to be paid to the overseers of the poor, but it does not follow that rates are not necessary, or are not actually assessed on the freeholders. The smallness of
r.urity, or until he enters into a recognizance to abide and perform such order as the sessions may make. If he does the first, the second is not required. He need not do both. Our statute is copied from that of 6 Geo. 2. clu 31. and it has been decided in England., that no order was necessary.[11] 3. Evidence of the pauper’s settlement in Newburgh, was clearly inadmissible in this case. By entering into the bond for the maintenance of the child in New-Windsor, the defendant is estopped, by his own deed, from alleging a settlement elsewhere.[12] If he meant to have availed himself of this objection, he should have suffered the order to have been made, and then hive appealed from it, so as to have the question of settlement decided. 4. The offer of the defendant in this case, to take the child, amounts to nothings The putative father may take the child, but no authority can be found, that permits it to be done by a surety or stranger. But the father must take the child before the order is made ; afterwards, it is too late -to make his election.[9] It has been decided, however, that the putative father has no right to the custody of the child, but it be- , , , . „ r . ... . , longs to the mother.§ S. It may be said, perhaps, that after the child arrives at the age of 21 years, the putative father is discharged from the burden of its maintenance. But there is no limitation of the time, for which an order ’ may be made ; and in this case, the defendant has undertaken by his bond, to save harmless and indemnify the town, for an indefinite period of time.
Sleght, contra.
p. 490interest docs not remove the objection ; for if the interest , , . _ be direct, it renders the witness incompetent.[11] 2. The language of the áct, (sec. 1.) is imperative ; the justices, if they do their duty, must make au order for the maintenance of the child. From the case of Simpson v. J ohnson,[12] the propriety and necessity of an order is evident. 3. In 1778, bastards were considered as settled where they were born. The present plaintiffs should have made an order for the town of Newburgh, to pay for the maintenance of the child, this being a case in which it was improper to' remove it.[9] If they have voiuntar;iy pa;¿ money, which they were not bound by law to pay, they have no right to call on the present defendant.[10] . The putative father, with some exceptions, has a right to the custody of the child.[11] £ ,f ent, C. J. That is not a question here. It is clear that the surety has no right to the custody of the child.] 3. In the pase of King v. Thomas,† it is held that the Putaclve hither is discharged, on the child’s arrival to twenty-one years of age ; the bond in this case, should be considered in relation to the subject matter, and the condition is in truth no more than that he would save the town harmless, as long, as by law the putative father was liable to maintain the child. was stopped by the court, as to the first four points. In answer to the 5th' objection, he contended, that the case of King v. Thomas, could be intended to go no farther than to say, that ordinarily, a child at the age of twenty-one years, was competent to maintain itself, otherwise, by a compulsory order, a putative father might be compelled to maintain a child when, it was able to provide for itself, In the present case, the child is shown to have been always imbecile and helpless ; the reason for the liability of the father continues beyond the age of twenty-one years. This was a voluntary not a compulsory bond, and the language of it is, I will indemnify the town, as long as the child continues charge-able,, This is its true meaning; besides, there is no rule-
Jones, in reply,
p. 491of law, to limit the duration of a voluntary obligation of this kind. A person may voluntarily undertake to do what the law will not oblige him to perform; and he must be bound by his undertaking.
1. That the witness was liable to be rated for the support of the poof of New-Windsor, was too remote and contingent an interest to render him incompetent. This point has been repeatedly ruled, and is now well settled, (King v. Prosser, 4 Term, 7.) 2. The expenditures for the support and maintenance of the child, which we are to presume were shown to be necessary and reasonable, were as obligatory on the defendant without, as with, an order from a justice. (Hays v. Bryant, 1 H. Black. 253.) The section of the a'ct, which requires the previous order of a justice, applies to the case only of a voluntary application for relief, by the pauper himself, and not to indigent and helpless children, or other persons incapable of making application to the magistrate. An order, therefore, was not necessary in this case. 3. The bond of the defendant necessarily implies, that the town of New-Windsor was properly chargeable with the support of the child, and the defendant having^ in pursuance of this bond, paid and indemnified the overseers of that to wn for one year, he is concluded, by his written obligation, and other acts, from contesting that point. And the town of PFetv-Windsor, at this late day, would "hardly be permitted to question its own responsibility against another town, and to which the acts of the defendant have contributed. Besides, the question of liability between these two towns, cannot be tried in this collateral way. It is sufficient in this suit, to show that New-Wind~ sor has, in fact,. been put to charge and expense for the maintenance of this child. 4. It is unnecessary here to decide, whether a putative father is, or is not, entitled to the custody of his bastard child.[1] It is enough that a stranger, like the defendant, cannot pretend to any such right. 5. Thai the child has arrived to the age of twen
* See 1 Bos. & Pull. New Rep. 148. Ex parte Ann Knee. 5 East, 221, 224.
p. 492
ty-one years, is not a reason for discharging the defend dant from the obligation of this bond, by which he has expressly stipulated, to indemnify the town at all times thereafter. The expression bastard-child, was merely descriptive of the person, and does not import any limitation of the time to which the obligation was to extend.
Judgment for the plaintiffs.