
    ANONYMOUS.
    3Sfo order against putative father of a bastard, may be made, before application to overseers of the poor, for its support.
    An order had been made on a putative father of a bastard child, to pay a gross sum of $27; and also to pay to the overseers of the poor, four shillings per week. This order was appealed from, and confirmed by the sessions; and then moved to this court by certiorari. It was admitted in a stated case agreed on by the parties, that at the sessions, on hearing of the appeal, that neither the inhabitants of the township, nor the overseers, had ever paid any thing for [637] or towards the maintenance of the said bastard child, or entered into any contract to pay any thing for the past or future support of the said child; nor the mother of the said child, nor the said child, had ever been supported by the town as paupers. But that the said mother, and said child, had hitherto been maintained by the father of the mother of the child. But that the order was made on the application of the overseers of the poor.
    
      Van Arsdale and Halsey,
    
    in behalf of the putative father, took several objections to the proceedings below. [*] From the course the cause took, it is unnecessary to take notice of but one, which was, that it was evident from the facts in the case, that the child was not either chargeable to the town, nor likely to become chargeable; that it was on that ground alone that the order could be made; that the parents of the mother were respectable, and in good circumstances, and disdained to put their daughter or the child on the town; that the order was made to favor the mother, and not to indemnify the town, which was contrary to the spirit and policy of the law. 1 Burn. J. 205, 1 Vent. 37.
    
    
      Campbell, contra.
    By our statute, Pat. 152, it is made the duty of the justice ex-officio, to inquire into all cases of bastard children, and to make provision for their maintenance; that every bastard child is likely to become chargeable. 1 Bwrn. J'. 212; 2 Salk. 1¡!75. That if the order for f 27 was erroneous, yet the remainder of the order was valid, and ought to be affirmed; that 1 Bwrns. J. 205, cited by Mr. Halsey, was contradictory to the statute; that the town was under a moral obligation to maintain the bastard child; the father of the mother doing it, the town was under an obligation to remunerate him. It has been determined that a physician administering relief to a poor person whom the parish was liable to maintain, could maintain an action against the overseers for his bill, although he had not been employed by them to do the service; and although no order had been made for the maintenance of the poor person, on the ground that the parish was under a moral obligation to maintain him.
   Pennington, J.

That is a glorious doctrine, Mr. Campbell, for physicians and surgeons. If, when their employers are so poor as to be unable to pay them, they can have recourse to the town, it will aid them wonderfully in collecting their debts.

[*] Campbell. There is such a case in the books. At all events, the court cannot quash the order [638] until the putative father is in court. 6 Mod. 180 ; 1 Blae. Rep. 198.

Kiukpatkick, C. J.

It is evident from the case, that the town was no way burdened by the maintenance of this child; nor were the overseers of the poor applied to for that purpose. The court have no doubt on the subject, but the putative father must be in court before the order is quashed; therefore, let it stand over to the next term, that if he choose, he may appear.

Pennington, T.

The power given to the justices in cases of bastardy, is not for the purposes of settling disputes between the father and mother, respecting the maintenance of the child, or for taking money from the father, and giving it to the mother; but to protect and indemnify the town from its liability to maintain the child. As long as the mother is in good circumstances, and does not apply for relief, or put her child on the town, no order or filiation ought to be made. How far it would be proper to compel the putative father to give seccurity that the child should not become a burden to the town, is another question; I go on the ground that no application has been made for the support of the child. Cause stayed till next term.

Cited in Murphy In re, 3 Zab. 180; State v. Over's of Poor, 4 Zub. 533. Explained in Gaskill v. Dowme, 7 Vr. 356. 
      
      
        Bul. N. P. 14-7. In this case there was an actual promise made by the overseers.
     
      
       The father of the young woman in this case, had recovered a large sum of money of the putative father, for the seduction ; and was above making application for the support of the child. ’
     