Overseers v. Ely , 1 Hill & Den. 379 ( 1844 )

By the Court,

Nelson, Ch. J.

1. It has been repeatedly

determined by this court that the order of filiation adjudging the bastard child chargeable to the town, or county, and fixing the weekly allowance to be paid by the putative father, is conclusive upon him, unless reversed or modified on appeal; and that»the onus lies on him to show that he has been legally discharged from the obligation. (Wallsworth v. Mead, 9 Johns., 367; Rockfeller v. Donnelly, 8 Cow., 633; The People v. Corbet, 8 Wend., 520; 1 R. S., 651, § 48.)

The fact that the town, or county, has not been subjected to expense proves nothing; as it only shows that the law* through the instrumentality of the public agents, has accomplished the object intended, to wit, the fixing the charge and expense upon the putative father.

The only reason why they have not been subjected to "expense in this case is, the agreement and understanding on the part of the overseers with Moncrief that he will maintain the child for the weekly allowance, which was to be paid to him as fast as it could be collected of the defendant.

2. It is supposed the order of filiation is defective and void for not making the weekly allowance payable to the county superintendents, instead of to the overseers of the poor of the town, inasmuch as the distinction between town and county poor has been abolished in the county of Washington.

The 73d section of 1 E. S., 656, provides that the same proceedings may be had, in order to charge the father and mother of a bastard child with its support and maintenance, where the county is chargeable, as in the case of towns; and may be instituted by the overseers of the poor of the town in which the child is born, or likely to be born, or by the superintendents of the county.

By section 60 all moneys ordered to be paid by the putative father or by the mother of a bastard child chargeable to any county, shall be collected for the benefit of the county; and all overseers of the poor, &c., shall within fifteen days after the receipt of the moneys pay the same into the county treasury.

By the 24th section of the poor laws also (1 R. S., 619), all moneys collected by overseers of the poor of any town, in a county where the poor are all a county charge, from relatives, &c., and all other moneys, which shall be received by them in their official capacity, shall be paid over to the county treasurer, &c.

By section 59, where any money shall be paid to any overseers, pursuant to an order of any two justices, by the putative father, or by the mother of any bastard child, they may expend the same directly in support of the child, &c., without paying the same into the county treasury.

The poor law also provides (1 R. S., 618, § 18, subd. 8), that the superintendents .shall direct the commencement of suits by the overseers of the poor, who shall be entitled to prosecute for any penalties, &c., or upon recognizances, bonds or other securities taken to indemnify any town or county, <fec.

I am inclined to think that, even where the distinction between town and county poor has heen abolished, the order of filiation may still be made in the name of the overseers of the poor, as well as in the name of the superintendents; and the suit, of course, when founded upon an order thus made, must be brought in their names.

The statute, we have seen, provides, in express terms, that they may institute and carry on the proceedings against the putative father before the justice or justices ; and ample provision is made for the collection and application by them of the moneys, as contemplated by the law, the same as if in the name of the superintendents.

But it is not important, so far as this particular case is concerned, to express a definitive opinion upon the question, as we have no evidence before us that the distinction, upon which the objection is founded, exists in the county of Washington.

The statute of 1827 (Session Laws, p. 194, § 9) abolishes the distinction as soon as the poor-house therein shall be ready for the reception of paupers. We know not if the contingency has happened; that should have heen shown in order to raise the objection.

3. The former suit, which was sought to be given in evidence, was doubtless admissible under the general issue (1 Chit. PL, 476; 1 Ld. itajun., 566; 2 Phillip’s ed., 166) ; but it was rightfully, rejected as the offer was made, to wit, in bar of the action. At most, the suit covered only a portion of the weekly allowance for which this suit was brought.

4. But the objection to the right of the plaintiffs to bring the suit in their name of office, alone, can not be got over. There are two cases already decided upon the very point, each of which holds that the suit must he brought in their individual names, with the addition of office. {The town of Galway v. Stimson, 4 Hill, 136; Commissioners of highways of town of Cortlandville v. Peck, 5 id., 215.)

These cases were decided since the above suit was brought, which, doubtless, accounts for the error.

New trial granted, costs abide event.