
    Davis v. Salisbury.
    in the Court below,
    Stephen Reed, Peter Farnham, and Lott Norton, select men of the Town of Salisbury, Plaintiffs ; Sheldon Davis, Defendant.
    
    A justice of peace, living1 in the town interested, may, upon complaint of select men, founded or, the statute of has-tardy, recog-imi- the accused to the County Court, rhintCtl'cC°m mother need hied, In the" time of travail, and may be compelled to testify-.
    T, HIS was a complaint, by the select men of the Town of Salisbury, for and in behalf of said Town, upon the statute concerning bastardy, stating, that Abigail Knapp of Salisbury was pregnant with a child, which, when born, would be a bastard ; that she was poor and needy, , , , . , and said cmídwa» likely to become expensive and char gen-!p virtue of a warrant, founded his complaint, Davis was arrested, and brought To this com-f0 said Town, &c. ’ upon ...... 'je^ore f°'Jhint Porter, Esq. of Salisbury, plaint and process Davis pleaded in abatement, that the ■ said Abigail did not make oath, that he was the fath-, ' ti of the child, previous to the issuing of the warrant; that the justice was an inhabitant of the Town of Salisbury, and incapable of trying said complaint; that said Abigail.vias a married woman,, and unableuto-.-make and substantiate the complaint; and, that the complaint was insufficient. The justice decided, that the plea in abatement was insufficient, and that , the complaint was suffix cient. Davie then pleaded not guilty,. and was recogni-. zed to appear at the County Court. The County Court found the pica in abatement insufficient, anda supplemental bill was then filed, stating, that the child was born. The defendant pleaded in bar, that said Abigail had not been constant in accusing him of being the father, for that she did not accuse or charge him in the time of her travail.
    
      1804.
    
    To this plea there was a demurrer, and it was adjudged insufficient. The Court then, after due enquiry, found the defendant guilty, and made an order, that he find bonds, &c. Said Abigail was offered as a witness, to testify who was the father of the child. She was objected to, on the ground that she was a married woman, although it was agreed, that she had not lived with, nor seen, her husband, for eight years. The Court decided, chat she was obliged by lav/ to testify, and ordered her committed, until she should testify, who the father of the child was,
    A writ of error was brought to the Superior Court, and the causes assigned were :
    1. That said plea in abatement was adjudged sufficient..
    That said Abigail was compelled to testify who the father of the child was, she being a married woman, and not a party to said process.
    3. That the plea in bar was adjudged sufficient.
    4. That said Court, on said plea in bar, gave judgment that Davis was guilty, and that he find bonds, &c.
    The judgment was affirmed in the Superior Court, and a writ of error brought to this Court, to obtain a reversal of that judgment.
    Sterling, and Gould, for the plaintiff in-error.
    1. The justice was not, in this case, a competent judge. Inhabitants of communities, who are parties to -a suit, :ate not competent witnesses, except from necessity. In ffindseth v, Kersey, 
      
       a case illustrious- in the law, it was held, by Lord Camdew, that a parishioner could not be a witness to a will, froto which the; parish was to receive an advantage. A judge ought to be removed froto all suspicion of interest. But justice Porter sat in his ozun case; and had the same interest, as though the suit had been for money. A prosecution for pound-breach, or rescue, is not a civil action ; and the proceedings, therefore, are not authorized by our statute giving penalties to town treasuries. There, the prosecution is in the name of the State, upon a qui-tam complaint; Acre, the remedy asked for is for the benefit of the Town, and prayed for in behalf of the Town. This is purely a civil cause. The defendant is not prosecuted for an of-fence, nor considered as a delinquent; but the suit is merely to secure the Town from an illegitimate child. If the defendant gives the security, nothing further xan be done. That the rest of the inhabitants of Salisbury are interested, as well as the justice, is no more a reason why the justice should try the action, than it is that A. should trv a case, in which he is interested, because B. and C. are likewise interested.
    It is said, a magistrate of a town may try a suit brought by a pauper of that town. But, in that case, no interest, which the law recognizes, exists.
    A judgment of a justice of East-Haven, upon a byelaw of that Town, by which one half the penalty wefit to the Town, was unanimously reversed by the Superior Court. 
    
    It is said, that in this case, the justice did not decide the merits of the case. But sufficient for us is it, that he did judicially decide a question, in which he was a party. And if the justice could not do this, the County Court had no legal jurisdiction ; — die case was never before -them:,
    2. This complaint is insufficient ; because it does not appear, that the woman is an inhabitant of the Town of Salisbury, and if not an inhabitant, that Town is not bound to support the child,  and consequently has no claim upon the reputed father. In the complaint, she is described as of the Town of Salisbury, but no more is implied by ibis, than that she dtuells in that Town.
    3. She was not put to the discovery of the truth, in the time of her travail. The statute is intended as aguará *c tá6 man, as well as the woman ; and, therefore, pro-tides, that he shall be subjected, if she continue “ con- “ stant in her accusation, being examined upon oath, and ⅛.put to the discovery of the truth, during the time of her u travail.” 
       But a difference is attempted to be made between prosecutions brought by the select men, and by the woman herself. Even/ argument, however, used in the one case, is applicable to the oilier. The select men are authorized to .pursue a suit commenced by the mother. Are they not, then, authorized to support it, by the same evidence ?
    4. The mother should not have been compelled to testify, to criminate herself ; by her own testimony, to convict herself of adultery, and bastardise her issue. It is said to be unreasonable, that the Town should be deprived of her testimony. The idea of collusion between the parents is not sufficient to authorize a court to dispense vid; the rules of law. A party may often ¡ose his evidence, and must bear it as his own misfortune. Thus, if an Insurance Company require a certificate of select men as the only proof of loss, if the select men will not give such certificate, the party cannot recover.
    5, As to the judgment, it is remarkable, that the Court should have found the defendant guilty, when the question as to his guilt was not made. But they have not found, that the mother was examined. This was determined by the Superior Court, in Pen field v. Norton, 
      
       to be necessary. There, the Court went upon the ground, that as the statute evidence. was necessary, it must appear that that evidence existed.
    
      
      Strong, and Smith, (of Woodbur;,) for the defendants in error.
    1. The interest of the justice was a minute one ; such an interest as would not have prevented his being a wit* ness. The justice is interested in every prosecution for sabbath-breaking, pound-breach, and pound-rcscuc. But the interest is so minute, that it comes within the maxim, de minimis lex non curat. This, however, was not an action in the name of the Town to’ recover money ; but merely to obtain security, against a remote contingency. Were a town pauper to bring a suit before a justice of the Town where such pauper is settled, though the justice would have an interest, yet he could try the cause. But, in this case, the justice was not to adjudge upon the merits of the case ; his act was merely a ministerial one, to hand up the record to a higher court,
    2. It is said, that the complaint is insufficient, because it does not state, that the mother would not prosecute, But it is stated, that the child is likely to become charge* able. Were it oilier,vise, the plaintiff would not be bound to negate every fact, which might constitute a ground of defence. In declaring on a note, he need not state, that i t is not usurious, was not obtained by duress, &c. The mother is said to be of Salisbury, and the child likely to become chargeable io Salisbury.
    
    S. It is objected, that the woman was not examined, in the time of her travail. In a suit brought by the woman herself, it is admitted, that this is necessary. When a person is to recover a premium for her own iniquity, and to support it by her own testimony, too strong guards can hardly be placed around that testimony. It ought not to depend upon the uncorroborated o-uh of the party. But, in a prosecution by the select men, the woman is disinterested ; at least, she has no pecuniary interest, The same guards were not necessary, ar.d were not imposed, this part of our statute is similar to the English statute, and is to be construed like that. By that statute, the woman is not to be examined, during the time of her travail. If such examination were necessary, that part of the statute, which authorizes select men to prosecute, would be a dead letter ; for the woman would never accuse the father, after a compromise had been made with her ; and no law would compel her, at that time, to disclose»
    4. It is objected, that Abigail Knapp was a married woman. This does not appeal- from the complaint. The complaint states, that the child would be a bastard. The plea in abatement states, that the mother was a married woman ; but this does not negate the statement in the complaint, that the child, when born, would be a bastard. It appears, that she has not seen, nor lived with her husband, since the year 1791 ; it cannot, therefore, be pretended, that the husband had access. The old doctrine, that the wife cannot have a bastard, while the husband is within the four seas, is exploded.  The mother was likewise a proper witness, upon the en-quiry who the father was, though not as to the point of access. The authority given by the statute to a town to proceed, will justif)'- the Court in admiting foe only-evidence,-which can he expected, as to the fact. But though the Court made an order, that she should testify, it no where appears, that it was executed, or that she did'testify. - .
    5» A gab, it is objected, that the judgment h badpbe-cause, it has found the defendant guilty, Rut he has confessed Ids guilt, by his plea in bar ; besides, he must be ib aid guilt’., before the Court can make an order, These prosecutions are so far of a criminal nature, that the Court always find the facts. The finding is, therefore;, correct. If it were not, it would be merely sur-plusage. But the plea of not guilty was before the Court ; it appears upon the record; and it was proper for the Court to answer it.
    The Court, it is true, have not stated, that the woman was examined. They are not obliged to detail the evidence, which was exhibited.
    Perhaps too, ⅛ is ■ «ót pecessary*:⅛ a f select men, that the mother should be examined, if the fact ran otherwise be made out ; for she may have absconded.. ;;;; -.'-ar-'v.- h
    
    
      
       Ante 41.
    
    
      
       Ives v. East-Haven, M. S.
    
    
      
       1 Root 155, Cawan v. Salisbury.
    
    
      
      
         Stat. 5-1.
    
    
      
      
         1 Root 345.
    
    
      
      
         Sac 925, Pem’ie’l v. PeovtU
      
    
   Bvthe'Court,

The judgment was affirmed.  