Judson v. Blanchard

4 Conn. 557

Opinion

Hosmer, Ch. J.

This Court, at a former term, remanded the cause of Sarah Blanchard, the defendant in error, against the plaintiff in error, to the county court next to be holden in the county of Fairfield, to the end that the said Sarah Blanchard might enter the writ and process, if she should see cause; in which event the said court was to proceed according to law. (a) The cause was entered, on the first day of the term, in the docket of the court to which it was remanded, and without the knowledge of Judson, the plaintiff in error and defendant in the suit, or any notice to appear having been served upon him; and being called, he did not appear. On the fourth day of the term, Sarah Blanchard appeared to give testimony in the cause; and the attorney of Judson, as amicus curiæ, informed the court, that notice of the entry of the action had not been given to him. But as Judson was party in the cause before the supreme court of errors, which court had remanded it, in the manner before-mentioned, to the county court, it was thought proper to proceed without further notice than by this transaction was constructively imparted. After this, Judson appeared by his attorney, and pleaded his want of notice, which plea was adjudged insufficient; and then, under the plea of not guilty, the merits of the cause were heard and determined. Whether the proceeding and determination of the court above stated were legally correct, is the first question which the writ of error presents.

The point in controversy does not depend for its solution on any principle of common law, but on a rule of practice, which has long been established in this state. Causes have frequently been remanded from the supreme court of errors, and from the superior court, to the county courts, to be entered there by one of the parties only. In some instances, the order of the court may have been mandatory; but in others, it has been merely permissive, as it was in this case. In every instance, I believe, without a single exception, on the entry of the action, pursuant to the mandate or permission of the supreme court of errors, or of the superior court, the adverse party has appeared without having been notified to appear and the question now agitated on this subject, so far as I am informed, is the first of the kind that ever has been made. Having been a party to the suit in the court above, when the order of the court remanding it, and directing it to be entered in the court below, was passed, and having knowledge of this fact, it has been the legal presumption, that as the plaintiff would enter the cause, if he elected so to do; so, on the other hand, that the defendant would likewise appear, if he had any defence to make. I am perfectly aware, that the simplicity of our practice, in this particular, and in many others, receives no countenance from the rules adopted in the courts of other countries and states. But as no embarrassment or disadvantage has ever arisen here from this source, and, on the contrary, much benefit has been derived from it, a reference to the rules of practice in other states can have no influence on our determination.

Besides the direct establishment of a rule of practice, applicable to the subject before us, authorizing the proceeding of the county court, the argument from analogy is irresistibly convincing. On an appeal from the county to the superior court, notice of having entered the action in the court above, is never required. So, on the reversal of a judgment, by the superior court, the plaintiff, in many cases, is permitted to enter the cause for trial; but of the entry notice is never given; and the defendant is considered as having constructive knowledge of the fact. When the rules of practice are found to be inconvenient, or productive of injustice, they may be altered at pleasure, as they will have no retrospect, nor shake any question already settled; but, until some ill consequence results from them, they must be adhered to.

If notice had been required, the actual appearance of Judson, without reference to the cause for which he appeared, would have rendered it unnecessary. The time and manner of the notice, are not prescribed by any law; and all that could be necessary, would be reasonable information that the cause had been entered. Had the court directed the defendant to be notified, at any time during its session, it would have been neither unreasonable nor unjust, as it had the power of postponing the trial of the action, so long as the interests of justice should demand. Now, with knowledge of the entry of the suit, the defendant having appeared before the court in the plaintiff’s action, before the period, when an order of notice, if one were necessary, need have been served; he had all the knowledge and notice, which could be required.

Had the law prescribed notice within a certain time, or in a specified manner, a compliance with it would have been indispensible. But, as on the ground assumed by the defendant, reasonable notice of the pendency of the action before the court, was all which could be demanded, and his appearance, with full knowledge, left nothing remaining but a mere form of perfect insignificance, it would be disgraceful to the administration of justice, to consider this omission of a proceeding, entirely nugatory, and perfectly destitute of use, as possessing any materiality.

Sarah Blanchard, on the trial of her cause in the county court, was permitted, as a witness, to deny having had any conversation with one Tucker, who had made oath to observations of hers, which tended to fix upon her the charge of inconstancy of accusation. The propriety of this admission of the plaintiff to testify gives rise to the second question in this case.

The testimony of the plaintiff, in my opinion, was legally admissible. In the first place, she had a right, by the practical construction, which has been put on our law concerning "Bastards and Bastardy,” to support, by her own evidence, the constancy of her charge. Warner v. Willey, 2 Root, 490. It has often been decided, that the discovery of the truth in the time of travail, must be proved, by the testimony of some person or persons present, other than the woman making the declaration. Hitchcock v. Grant, 1 Root 107. Warner v. Willey, 2 Root 490. This construction of the statute is reasonable, and obviously pursues the intention of the legislature, in their having regarded the performance of a solemn and public act, in the presence of witnesses. But whether the constancy of accusation may be supported, by the testimony of the plaintiff, stands altogether on a different ground; and here, it has always been so considered. On the general principles of evidence, the witness is always permitted to give testimony to facts and circumstances corroborative of his credibility, and to repel, by his testimony, evidence which tends to his discredit. And the reason for admitting the plaintiff, in this case, to give similar testimony, is, in no respect, diminished. If she may testify at all, there is a moral necessity for the admission of this species of evidence. A pretended conversation, had in secret, might otherwise-deprive her of all credit, from the impossibility of refuting it, except by her own testimony; and having, at best, only a credibility, weakened by her interest in the cause, the novel principle contended for, would essentially frustrate the object of the law. In conclusion, on this point, I am entirely satisfied, that the testimony objected to, was, by the court, admitted, in consonance with principle, long and legally established.

It remains to be enquired, whether the court below made an improper allowance for lying-in or child-bed expenses. From the record, it appears, that the lying-in expenses necessarily incurred and paid for the child of the said Sarah, at its birth, and for nursing the same, amounted to 109 dollars, 15 cents, the one half of which sum was allowed against said Judson. The county court have conclusively established the fact, that the items of the above charge were necessaries; and over this question the superior court is invested with no controul. The only enquiry before the court, is, whether the articles furnished, necessary as they were, are of that description that the defendant, Judson, was under a legal obligation to supply them. The items supposed to be objectionable, are the charges for nursing, and for necessaries, board and cloathing, furnished the plaintiff. The reputed father of a bastard child, by the words of the statute; (p. 62.) "shall stand charged with the maintenance of such child, with the assistance of the mother." The term "maintenance," has been construed to mean the expenses of lying-in, or child-bed expenses such as board, wages, and other charges attendant on nursing the child, and the necessary expenditures at the birth of the child, and even after the birth, which do not extend beyond the period of the sickness consequentially resulting from the act of parturition. In Bennett v. Hall, 1 Conn. Rep. 417. the expenses necessarily incurred by the mother for her illegitimate child, at its birth, and for nursing the same for a period afterwards, were allowed by the court; and in Comstock v. Weed, 2 Conn. Rep. 155. a similar charge was established. In the latter case, it was said, by Ch. J. Swift, "The allowance of expenses, at the birth of the child, cannot he considered as extending beyond lying-in expenses. These have always been allowed." It has justly been remarked, in relation to the matter under discussion, by a former respecta ble judge of this court, (Reeve’s Dom. Rel. 278.) that the support to be furnished, by the father, is for four years, and one half of the child-bed expenses. The necessary assistance, at the birth of the child, as well as the expenses immediately after, and during the sickness attendant on the lying-in, indispensible as they may be to the life and health of the infant, are justly considered as falling within the term "maintenance.” A rigid and literal construction of the statute, would lead the mind to a different result; but this law, like every other, must be expounded in reference to its manifest object. The cloathing of the child is requisite to the maintenance of it, in life and health; and the nursing and cloathing of the mother may be equally necessary, for the same reason. In the enquiry of fact, on this subject, great caution should be exercised, in the allowance of such expenditures as were undoubtedly necessary; but this is a jurisdiction, which is exclusively exercised by the county court, and not by this tribunal. I am aware, that in a neighbouring state, the lying-in charges, on the construction of a law, expressed in terms similar to ours, are not sanctioned; because in the fornication, the mother is particeps criminis; and the statute is considered as not having made any provision to relieve her from any expense she may incur on her own account. The Commonwealth v. Cole, 5 Mass. Rep. 518, 9. With the highest deference for the learned judge, who pronounced this opinion, I cannot subscribe to it. I cannot perceive, that the particiption of the mother in a crime, mutually committed with the putative father, reflects any light on the construction of the statute; and although the mother is not relievable by law, from any expense incurred on her own account; yet her child must be maintained, and such allowances must be made as are indispensible to attain this object. If, through poverty and consequent nakedness, the health and welfare of the infant necessarily require, that adequate cloathing should be obtained for the mother, this is the maintenance of the child, in that liberal sense of the term, which embraces the usual lying-in expenses, within the same meaning, I have no doubt the necessary cloathing, whether of mother or child, as well as necessary board, physic and attendance, are equally within the authorized expenditures of the statute, of which the putative father must be subjected to a moiety.

In conclusion, I think the determination of the county court legally correct, and would, therefore, affirm the judgment of the superior court.

The other Judges were of the same opinion.

Judgment affirmed.

Footnotes

(a)

Judson v. Blanchard in error, 3 Conn. Rep. 579, 587.