People v. Relyea

Spencer, Ch. J. delivered the opinion of the Court.

Two questions arise in this cáse: I. Is the second order void, the first appearing to have been quashed in the Sessions, by consent. 2d. Ought the damages to have been assessed ?

There can be no doubt, but that an order of two Justices, in the cases arising under the act for the relief of cities and towns, from the maintenance of bastard children, cannot be impeached by parol evidence, unless in the mode pointed out in the statute itself, or on appeal to the Sessions, and the hearing thereof. An order is in the nature of a judgment, and if the Justices who make it, have jurisdiction, it is so far conclusive, that, unappealed from, it is final and binding. In the case of Mather v. Hood, (8 Johns. Rep. 44.) we held, that a conviction made by one Justice, under the act to prevent forcible entries and detainers, could not be traversed, and that when the record shows that the Justice had jurisdiction, and proceeded regularly, it was conclusive, for, that the Justice in making it, acted not as a ministerial officer, but as a Judge,

*158 The order of the Justices, is the appropriate record of their proceedings; the act is a judicial one, and is not to be impeached collaterally. Had the Justices jurisdiction to make the second order ? The only circumstance to impeach their jurisdiction, is the statement that the first order was quashed, by consent, in order that a new one might be made; if the defendant would take advantage of the part that there had been a former order, he must take it with the qualification ; and then it appears, that it was not quashed, on its merits; and if it was merely set aside, by consent, for informality, it cannot be pretended, that that would absolve the putative father, or preclude the Justices from making another order.

This is not a case requiring the assessment of damages. The 5th section of the act referred to, (1 N. R. L. 308.) provides, that if any recognizance concerning bastardy, shall become forfeited, the Court of Sessions shall direct the clerk to prosecute a suit thereon, and the money, when recovered, shall be paid to the overseers of the poor, of the town for whose indemnification it was taken, to be applied to the relief of the poor thereof; with authority to the Court to order the clerk to compound for the penalty in such manner, and upon such terms, as the Court shall judge proper.

This evidently shows, that it was not the sense, or intention of the legislature, that any thing less than the penalty should be recovered. This was intended as a fund for the support of the poor, particularly of the bastard child, in relation to which the order was made. Any other construction would involve an absurdity, for these orders require a sum to be paid for the weekly support of the bastard, and it cannot be supposed, that the penalty is to stand as a security, and that on every default, a new proceeding was to be instituted. This case is not within the provisions of the 7th sec. of the act for the amendment of the law, (1 JV. R. L. 518.) for this is not a bond within the meaning of that act.

Judgment for the plaintiff, for the amount of the recognizance.