
    Thayer vs. The Overseers of the Poor of the town of Hamilton.
    An adjudication of two justices in favor of a party charged with being the father of a bastard child, is a bar to a second proceeding against him respecting the same matter.
    The case of The People ex rel. Dumont v. The Tompkins General Sessions, (19 Wend. 154,) commented on and corrected.
    
      Certiorari to remove proceedings had before two justices of the peace under the statute relating to the support of bastards. (1 R. (S'. 640 et seq.) The return disclosed the following facts; On complaint being made to John Foote, a justice of the peace of the town of Hamilton, Madison county, by the overseers of the poor of that town, charging Thayer with being the father of a bastard child of which Minerva Waterhouse had lately been delivered, a warrant was issued dated May 30th, 1842, by "virtue of which Thayer was arrested and brought before the said jus-" ■ tice. ‘ Thomas Millen, another justice, was thereupon associated with the one who issued the warrant, and, on the 2d of June, 1842, the parties appeared before them, when the following facts were pleaded by Thayer in bar of any further proceedings, viz: That in March' last he was arrested on a warrant issued by oné Greene, a justice of the peace, on a similar application and com:. plaint by the overseers of the poor of the town of Hamilton : That on being brought before the said Greene, one Otis, another justice, was associated with him, whereupon a trial on the mer- ■ its was had .; and, after hearing and deliberating" upon the proofs and allegations of the parties, the said justices adjudged and de- " termined that Thayer was not the father of the said child: That said proceedings were reduced to writing and subscribed by the said justices; and that the offence charged in the present-complaint is the same identical charge ás that for which Thayer was thus examined. The matters stated in the plea were admitted to be true; but the justices (Foote and Millen) decided that the prior adjudication constituted no bar to another proceeding of the like character, and, after hearing the evidence offered,, they made an order of filiation against Thayer. They also took a bond with sureties, conditioned for Thayer’s appear: anee at the then next court of general sessions of Madison county. Thayer afterwards, sued out a certiorari.
    
      C. Mason, for the plaintiff in error.
    
      W. J. Hough, for the defendants in error. .
   By the Court, Cowen, J.

A trial and discharge pursuant to 1 R. S. 650, 651, 11, 13, 2d ed., was pleaded in bar and admitted. The provisions of the statute are, in short, that a man who is arrested on a charge of bastardy, shall be brought before the justice who issued the warrant; that the latter shall associate with him another justice; and that these two shall make an examination of the matter, either of them having power to issue subpoenas for witnesses. The mother is to be reexamined, and she and all the witnesses, the parties now being present, are of course subject to regular examination, cross-examination &c. Finally, the justices are to determine who is the father; and “ if they determine that the person so charged and apprehended is not the father &c., he shall be forthwith discharged.” (Id. § 13, sub. 1.) By subdivision five, they shall reduce their proceedings to writing, and subscribe the same. On the other hand, if the justices determine that the person arrested is the father, they may make and subscribe an order of filiation charging him with the support of the child. From this the party grieved may appeal. The whole subject is thus committed to a special session, with power to hear and determine, as effectually as a like session may in the case of a petty larceny. It has never been doubted that, in all other cases of summary proceeding, the decision is final. It is not denied of this case that the decision is final, provided the defendant be convicted, though the same effect is denied if he be acquitted. If there be any distinction, it seems to me it should be the other way. On the proposition contended for, a man charged with being the father of a bastard may be very unreasonably harassed; and is often pursued in a spirit which should be met by defences at least as strong as any which the law interposes against other prosecutions. It is said that the public has no right of appeal. This was, indeed, held as long ago as 1835; (The People v. The Tompkins General Sessions, 19 Wend. 154;) and the legislature have left the law there ever since. True, it is thrown out that the acquittal is not a bar. I think, however, the suggestion was made without the attention of the court being fully drawn to the nature of the proceeding. The man is on trial before a court possessing the power to make an order of filiation. It is by no means to be taken for granted, as it seems to have been in the case cited, that an order discharging him after such an inquiry can ever be treated as a mere ministerial act, open to revision by an arrest and repetition of the inquiry. 1 need scarcely say it is not an argument against the effect of the acquittal, that there is no appeal allowed to the town or county. .No appeal is allowed after acquittal for a crime 5 but this detracts nothing from the right to plead auterfois acquit. The analogy to an inquiry in criminal cases merely with a view to commitment, discharge or bail, which was suggested in argument, does not hold. There is no power in that case either to convict or acquit. The issue is merely upon the question whether the party shall be holden to a future trial. The justices have no cognizance of the merits. Their decision cannot operate as a general bar to a farther prosecution, because they have no jurisdiction enabling them to hear and determine the issue of guilt or innocence,

I think the justices erred in disallowing Thayer’s discharge as a conclusive bar; and that their order of filiation and maintenance should be quashed,

Rule accordingly.  