Pease v. Hubbard

Mr. Justice Lawrence delivered the opinion of the court:

The plaintiff, Juliet Pease, sued the defendant, Hubbard, who was a constable, for having negligently permitted the escape of one Kent, whom the defendant had arrested under a bastardy warrant, issued upon the complaint of the plaintiff. The defendant demurred to the declaration. The court sustained the demurrer, and upon that decision the cáse is brought before us. The single question for determination is, whether an officer, under such circumstances, is liable for the escape, to the mother of the illegitimate child.

It was decided at the Ottawa term, 1864, in the case of Mann v. The People, that a prosecution under the bastardy act is a civil and not a criminal proceeding. Although in. the name of the people, yet the object is not the imposition of a penalty for an immoral act, but merely to compel the putative father to provide for the support of his illegitimate child. The father is primarily liable for the support of his offspring. In the event of his failure to perform this duty, it devolves upon the mother, and in case of her inability, the child becomes a public charge as a pauper. This law was designed to place the burden where it properly belongs, upon the immoral father, and prevent him from casting it either on the mother or the county. We are, then, wholly unable to see why this suit may not be maintained. If the officer negligently suffered the father to escape, he is liable to any one who was injured by his neglect of official duty. The plaintiff was clearly injured, because she is left liable to a. burden from which it was the duty of the escaped prisoner to relieve her, and to secure the performance of which duly he had been arrested upon her complaint.

Judgment reversed.