Birdsall v. Edgerton — 25 Wend. 618

Majority

p. 471

*Birdsall vs. Edgerton and others.

Headnote

An action will not lie by the county superintendents of the poor against the putative father of a bastard child on a promise to indemnify the county, made by him to the supervisor of the town in which the child was born, where it is not shewn that the supervisor in obtaining the promise acted in the premises at the request, or with the privity of the county superintendents.

Error from the Delaware common pleas. Edgerton and two others, superintendents of the poor of the county of Delaware brought an action of assumpsit in a justice’s court against Birdsall for the support and maintenance of a bastard child, of which they alleged he was the putative father. The defendant pleaded the general issue, and on the trial of the cause it was proved that the child, being the son of Sally Palmer, had been maintained in the county poor-house at the expense of the county for a period of about five months; that in March, 1838, the defendant was called upon by the supervisor of the town of Harpersfield, (the town in which the mother resided at

p. 472

the birth of the child,) who proposed to the defendant to execute a bond to indemnify the town and county, which the defendant declined to do, but said that he would give his word that the child should not become chargeable to the town or county. The defendant did not admit that he was the father of the child, but there was evidence that he had advanced money to the mother ■ for the support of the child, previous to his removal to the county poorhouse. The child was taken to the poor-house in September, 1839. The justice rendered judgment in favor of the superintendents; which judgment on certiorari was affirmed by the Delaware C. P. The defendant sued out a writ of error.

J. A. Hughston and S. Gordon, for the plaintiff in error.

T. H. Wheeler and N. K. Wheeler, for the defendants in error.

By the Court,

It was held in Moncrief v. Ely, 19 Wendell, 406, that the putative father was not legally liable, at com- [ *620 ] mon law, for the support of his bastard *cbild ; and as the liability was created wholly by statute, the remedy there prescribed must be pursued. But it was admitted that on the ground of the natural or moral obligation arising out of the relation of the parties, he may be chargeable upon an express promise; or if he had adopted the child as his own, a promise might be implied in favor of the party maintaining it.

There is no pretence in this case that the defendant has adopted the child in question ; on the contrary, the evidence is slight that he ever even admitted himself to be the father of it. The only ground, therefore, upon which the action can be maintained is the express undertaking proved by the supervisor, to whom the defendant in substance promised, he would indemnify the county for all charges to which it might be subjected. This might be sufficient "to uphold the action, if the promise could be made to enure for the benefit of the plaintiffs upon any sound principle of law. But the supervisor was a stranger to the superintendents, acting at the time without any authority on their behalf, and for aught that appears without any understanding with them on the subject. It is impossible, therefore, that the promise made to him can be regarded as operating to their benefit. Some agency in the business must be first established before this effect can be accorded to it.

It is true, the supervisor, even where the bastard is chargeable to the county, may, perhaps, apply to the justice for the purpose of instituting proceedings to inquire into the facts, &c., 1 R. S. 649, § 5 ; but it by no means follows from this duty thus imposed by the statute, that he must have power to settle and compound at discretion the matter for the county, or proceed on their behalf, in any other way than that pointed out by the act.

p. 473

The superintendents are alone empowered to compromise and arrange with the putative father, relative to the support of bastard children within their jurisdiction. 1 R. S., 660, § 69.

Judgment reversed.