Graham v. Monsergh

A proceeding, for the purpose' of affiliating a bastard child and compelling aid from the father in its support, is, in its nature, confined to causes of action arising -within this state. Such- a proceeding is altogether a matter of internal police, and in its very nature as exclusively local, as is the administration of criminal justice. Where, in such case, it appeared, that the-child! was begotten and born out of the state, and that the parties never resided within this state, the mother being only temporarily here at the time the proceedings were instituted, and that the child, at the time of the trial, was in the care of a family residing, in this state, the suit was dismissed, upon, motion..

This was a complaint for bastardy, in which it was alleged, that on the eighth of July, 1847, a child was begotten by the defendant upon the body of the complainant at Stanstead in Canada East, and that said child was born a bastard at Walpole in the state of New Hampshire on the tenth of April, 1848, and was still living. The defendant moved, that the suit be dismissed, alleging, that neither the defendant, nor the complainant, nor the bastard child, was, at the time of making the complaint, or at any time before or since that time, a citizen, inhabitant, or resident of the county of Orleans, or within the state of Vermont, and that the said child was begotten without this state. The motion was demurred to, except so far as the facts therein stated may be varied by an agreement between the parties as to the facts, in which it was stated, that, at the time the complaint was made' and the warrant issued, the complainant and her bastard child were temporarily in the town of Derby, in the county of Orleans, that the complainant, being a foreigner, had no settled residence, and that, at the time of filing the motion to dismiss in this case and for some months previous, the bastard child of the complainant was a resident of the town of Derby. The county court, June Term, 1849, — Poland, J., presiding,— overruled the motion to dismiss; to which decision the defendant excepted. The case was then tried upon the plea of not guilty, and a verdict returned for the complainant, and an order of affiliation'made. The right of action, in this case, is created by statute, and hence must be local in its effects. The object of the statute originally Was, to provide for the maintenance of illegitimate children. 1 Tol. St. 379, sec. 1. Rev. St. 348. This statute cannot extend to children begotten and born in a foreign country. Originally the right of action was first given to the overseer of the poor, and that only when the child was likely to become chargeable; and the right of action ceases on death, or miscarriage of the woman. 1 Tol. St. 379. The expression “ any justice in the same county ” means something in regard to locality. It refers to the domicil of one of the parties, — either mother, putative father, or child. The case of Allen v. Ford, 11 Vt. 367, seems to have given the true construction to this expression. This prosecution is penal, and strictly penal, in its consequences; if so, it falls within the principle of Slack, q. t., v. Gibbs, 14 Vt. 357. The child and the mother were in Derby, in Orleans county, for a few days, after the birth of the child, and then the suit was instituted, — and we insist properly; for it is a civil suit, — Coomes v. Knapp, 11 Vt. 543, — and in its nature transitory, not local. Den-nett v. Kneel and, 6 Greenl. 460. Williams v.- Campbell, 3 Met. 209. It is in its nature transitory, when considered as a suit to give relief, indemnity, or damages, to the mother, for the injury she has received, — or rather, for the burden imposed upon her. It is so, when considered under the pauper law system, that is, if the' burden is cast, or is likely to be cast, upon a town in this state, the. object of the law is to relieve such town. Sisco v. Harmon, 9 Vt. 129. Derby was the town, to which the child was likely to become chargeable, and there was the place, where the process should be instituted.