
    *Fall v. The Overseers of the Poor of Augusta County.
    October, 1811.
    1. Bastardy Proceedings — When Father Liable tor Support of Bastard. — Under the 18th section of the act of 1792. "providing for the poor,” &c. a person is not to be bound to support a bastard child, unless it appear that such child has either actually been or is likely to be, chargeable to the parish. And. where the bastard child has never been placed on the parish list, but has been supported’ without any engagement of the Overseers of the Poor respecting it, the Court is not authorized to enter a retrospective judgment, compelling its alleged father to pay for its previous maintenance.
    2. Same — Evidence—Criminal Intercourse with Other Men. — If a single woman, having been delivered of a bastard child, on her oath, charge a certain man with being its father, and aver that there is no possibility of her being mistaken; it is competent for the person accused to invalidate her testimony by proving that, about nine months before its birth, she was guilty of criminal intercourse with other men. But if the defendant admit that he, also, had criminal intercourse with her about the same time, such proof may he rejected, and he may be confined to proof of the general character of the mother.
    On the 14th of November, 1797, Daniel Fall, of the county of Augusta, was charged, before Jacob Swoope, a justice of the peace for the said county, by Catharine Thyrey, an unmarried woman, with being the father of a bastard child which she had borne. The justice recognised him to appear at the next county Court, and to perform such order as they should then make. The recital of the charge, in the recognisance, was, “Whereas, Catharine Thyrey, of said county, single woman, hath, by her examination, on oath, before me, declared, that on the 15th of January, 1796, last, she was delivered of a bastard ■child, in the county aforesaid, which is likely to become chargeable to the said county, and hath charged the above-bound Daniel Fall with having gotten her with child; now, if the said Daniel Fall,” &c. The defendant appeared accordingly, and the recognisance was continued from term to term until the August Court, 1798, when his counsel filed a plea in bar, setting forth that he had appeared on the 17th of August, and 18th of October, 1796, in pursuance of recognisances successively obtained against him, at the instance of the same woman, and for the same offence, and in each instance had been discharged by the Court. The counsel for the. Overseers of the Poor, filed a replication, stating that the defendant was not, in either caise, discharged on hearing, or on the merits of the cause, but, in the first instance, for irregularity in the recognisance, and, in the second, for want of prosecution, which he averred was no legal discharge. The Court overruled the plea, and continued the cause.
    *At November term, 1798, the defendant filed another plea, that Cath-arine Thyrey had lately intermarried with a certain John Wikle, “who is fully able to ■maintain her, and her said child, so that the said child is neither likelj', nor is, or ever hath been, chargeable to said county,” «&c. To this plea the Overseers, by their counsel, demurred; but, on argument, the -Court overruled the demurrer, and, adjudging the plea good, discharged the defendant. Upon an appeal to the district Court of Staunton, at September term, 1800, the decision of the county Court was reversed, and their proceedings annulled, as far back as the continuance in October, 1798; and the cause was remanded for further proceedings. The trial came on in February, 1802, “when, it appearing to the county Court that the said Fall was guilty of the charge alleged against him, in his recog-nisance, it was ordered that he be bound in a recognisance, with security, for the payment of three hundred dollars, according to law, to wit, thirty-three dollars and thirty-three cents and a third, annually, from the 15th day of January, 1796, (that being the time of the birth of Hannah Thyrey, the child referred to in the said recognisance,) until she shall arrive at the age of nine years; and it appearing to the said Court that six years of the time had already elapsed, it was ordered that he pay the instalments then due on the first of June ensuing, and the other three, in order, as they should respectively become due; provided that future expenses should be necessarily incurred.” The defendant had offered evidence “to prove that the mother of the bastard child, in and about nine months before its birth, was guilty of criminal commerce with other men, as well to prove that he was not the father, as to -invalidate the evidence of the mother, who was the only witness to prove him to be the father, and who swore that there was no possibility of her being mistaken that he was really the father; to which evidence, the attorney for the Overseers of the Poor, -objected, alleging that such examination might criminate persons not before the Court, and That no particular facts ought to be proved ; whereupon the Court rejected that evidence; but determined that the defendant might examine witnesses to prove her general character as to virtue or truth, and, also, might prove any conversation that she had made use -of, wherein she contradicted herself; but that no particular facts of criminal commerce should be proved.” To this opinion of the Court the defendant excepted, and, also, objected to the judgment above mentioned, because, in his opinion, it was too unlimited, and because it put it in the power of the Overseers of the Poor to draw from him the sum of 200 dollars for the time which had elapsed since the birth of the child, during which, it was acknowledged, it had never been taken on the parish list, but had been supported by the father of its mother, without any engagement, being proved to the Court, of the Overseers to pay him therefor. But the Court overruled the objection, being of opinion that the Overseers had a right to make a reasonable compensation for the maintenance of the child heretofore, although not taken on the parish list, and to call upon the said Pall therefore, out of the first instalments, payable in June as aforesaid. The defendant again excepted, and appealed from the judgment to the district Court, which, in April, 1803, affirmed it, and remanded the cause, with directions, that a recognisance should be taken agreeably thereto.
    The recognisance was accordingly taken, but the defendant refused to pay any of the instalments. Whereupon a notice was given, and motion made, by William Patrick, president of the Overseers, in October, 1804, for a judgment against him for the sum of 266 dollars and 66 cents, with interest from the time each payment ought to have been made, until paid; that being the amount of eight years maintenance of the child, at the rate of 33 dollars and 33% cents per annum. At the hearing of the motion, the plaintiff withdrew it as to two instalments, and insisted only for the sum due for the first six years, which had been ordered to be paid on the 1st day of *June, 1802, and to leave the balance subject to a future investigation. The Court gave judgment for 200 dollars, with interest thereon, to be computed after the rate of five per centum per annum, from the 1st day of June, 1802, until payment, and costs. The defendant appealed to the district Court, which, in April, 1805, reversed the judgment, on the ground that interest ought not to have been charged against him; but entered another for the principal sum of 200 dollars, and the costs expended in the county Court. The appellant filed a bill of exceptions to the opinion of the district Court, setting forth that his counsel moved the said Court to send the cause back to the county Court, there to be further proceeded in, “alleging that he wished to defend the motion by showing that neither the parish of Augusta, nor the Overseers of that county, on their behalf, had ever incurred one cent of cost, for the maintenance of said child, from its birth until the present time; and that it was proper for such a defence to be made and inquired into before the county Court alone; but that, if the district Court thought the case, after reversal, could be retained for a trial and hearing on the merits, he offered evidence to the said Court, to wit, the clerk of the board of Overseers of the Poor of Augusta, and the books and records of the proceedings of that body, to show that the said child never had been a parish charge, and that neither the parish of Augusta, nor the Overseers of the Poor of that parish, or county, ever had incurred a cent of charge for the maintenance of said child from its birth until this day; but the Court (without deciding whether the Court could hear evidence of the above kind, or could retain the cause for that purpose) rejected the application to send the cause back to the county Court, or to hear the evidence aforesaid, being of opinion that the question was closed by the decision of the county Court of the 23d day of February, 1802, rec-ognising the appellant; which decision had been affirmed in the' said district Court on the 12th day of April, 1803, and that, therefore, *such evidence would be improper either before the • county Court, or the said district Court.”
    The appellant obtained a writ of super-sedeas, on the 1st of July, 1807, from a judge of this Court, to both the judgments.
    Chapman Johnson, for the plaintiff in error,
    assigned, in the petition for the supersedeas, the following reasons for reversing the judgments:
    The first affirmance in the district Court was wrong; because the ■ proceedings affirmed were erroneous in three things:
    1st. It was error in the county Court to overrule a plea, to which there was a replication, on which no issue was taken, and on which no jury had passed. If the plea were improper, they ought to have rejected it; if insufficient, there should have been a demurrer; but being admitted proper and sufficient by the replication, that replication should have been tried in legal form. It will be remarked, that the district Court, in their first reversal, have left these pleadings untouched; so that they now constitute a part of the proceedings on which the second judgment of the county Court is founded.
    2dly. It was error to reject the testimony offered by Fall. Though it is admitted to be true, as a general rule, that you must impeach a witness’s credit by evidence of general reputation, yet it is as certainly true that you may impeach it by contradicting any particular fact stated, on oath, in the testimony of the witness. Now, is not evidence of carnal intercourse with other men, about the time of conception, conclusive to show that the witness has not sworn correctly, when she says that it is impossible for any other man to have been the father of her child?
    And, 3dly. It was error to bind the defendant to pay 200 dollars to the overseers of the poor, when the parish had not encountered, and were not legally bound to encounter, a farthing of expense. The act of Assembly, on *this subject, is ■ intended solely for the indemnification of the parish, and is entirely prospective. That this law is intended entirely for the indemnification of the parish, is seen from many circumstances. The act in which the law is contained, is, “an act providing for the poor, and declaring who shall be deemed vagrants.” The overseers of the poor are solely entrusted with its execution; they are authorized to act only when a child is “chargeable, or likely to become chargeable, to the county.” The Court are only authorized to bind the father for maintenance, when they shall adjudge the child “likely to become chargeable to the county, and for such time as such child is likely to become chargeable to the county, and no longer.” All these quotations from the law, and its title, show, most conclusively, that the indemnity of the parish is the only object of the law. A part of them shows, too, the law is only prospective, and that the Court have only a power to provide for future expenses. Whether future or past, though, is immaterial here, because there had been none previous to the judgment. If, then, the indemnity of the parish be the only object of the law, it is surely a prostitution of it to use it for the purpose of enriching the overseers, or a prostitution of the overseers, to use them as the mere vehicle to retribute or revenge the mother of the child, or her father.
    Another objection might be made to this part of the proceedings of the county Court, if another were necessary. By the recognisance, it does not appear that your petitioner was charged with being the father of this child: and the Court only adjudge him guilty of the charge alleged against him in the recognisance.
    The last judgment of the district Court is erroneous, because, after reversing the judgment of the county Court, they had no evidence whatever on which to render their judgment, except the evidence of the re-cognisance, and the refusal to pay the in-stalments. Now, we say that it is competent for a Court, on motion for payment of the instalments, to. hear evidence that there is no occasion for *the use of these instalments. On a motion, the Court will hear equitable as well as legal proof. This recognisance, being taken for the indemnity of the parish, ought not to be used but for that purpose. If the parish have expended nothing, contracted for nothing, can they want an indemnity? Suppose the child had died, immediately after the judgment of the Court, would not this have been proper evidence on a motion for future instal-ments? and would the Court have ordered payment, after hearing this evidence? The only effect of this evidence is, to show that the parish do not want the money. Then, why shall not the same thing be shown by other evidence, on a motion for other in-stalments? It is said that the former judgment of the Court had decided that point. The former judgment could not have decided it, because that judgment does expressly admit that no expense has been incurred, but makes the appropriation of money upon the hypothesis, that overseers were at liberty yet to incur expense for former maintenance. Then, ought it not to have been shown that they had incurred this expense before they demanded the money? Suppose they had recovered the money first, and then refused to make any compensation for former maintenance; who could have maintained a suit against them?
    But if the first affirmance of the district Court was wrong, their last judgment, which is founded on it, must be wrong also, and both must be reversed together.
    
      
      Bastardy Proceedings — When Father Liable for Support of Bastard. — A person accused of being the father of a bastard child, cannot lawfully- be bound to support such child without a written charge before the magistrate by its mother; nor unless it appears that the warrant was issued by the magistrate upon the application of the overseers of the poor, or one of them or that they, or one of them, were parties to the canse in court, making the order against such - person. Mann-v. Com., 6 Munf. 452, citing the principal case. See further, monographic note on- "Parent and Child” appended to Armstrong v. Stone, 9 Gratt. 102.
    
   November 23d, 1813, the judges pronounced their opinions.

JUDGE BROOKE.

It is unnecessary to notice all the points that were made in this case. The judgment of the district Court, rendered on the 12th day of April, 1803, as well as the succeeding one, rendered in 1805, are both within the time limited by law for granting writs of error and supersedeas, and, of consequence, are regular before the Court. The validity of the first ^judgment depends on the correctness of the judgment of the county Court, which it affirms. I admit that judgments of the county Courts, upon summary proceedings, ought to be construed liberally; and I am willing, by fair inference from what is expressed therein, to make such deductions as will make them conform to the particular statute upon which they are rendered. Yet I think there is error in the judgment now in question, in this, that it is not expressly, nor by inference, adjudged by the Court that the bastard child was likely to become chargeable to the parish; which appears to me to be, by the act of Assembly on which the prosecution is founded, a preliminary step to any farther proceedings against the defendant, on the charge exhibited against him. A second objection to that judgment is founded on its retrospective character, by which it is made to comprehend several years preceding the commencement of the prosecution, which, (though, under some circumstances, it might be correct, as to which I shall not now give any opinion,) under the circumstances disclosed in the second bill of exceptions, I think entirely inadmissible. It is there admitted that the bastard child had never been placed on the parish lists, but, on the contrary, had been supported by the father of its mother, without any engagement of the Overseers of the Poor respecting it. The evidence offered by the defendant, and which is stated in the first bill of exceptions, (though, according to the view I have taken, it is not material to notice,) I am inclined to think was rightfully rejected by the county Court; for, though proof that the mother of the bastard child had had criminal intercourse with other men, nine months preceding its birth, might weaken the evidence of the mother, who swore that the defendant was the father of the bastard child, by rendering it possible that she was mistaken; and though, generally, such evidence, according to the decision in the case of Da Costa v. Jones, reported in Cowper, (that indecent evidence affecting the feelings of third persons,) may be resorted to in cases in which a *civil or a criminal right is to be tried; yet, as it seems to be admitted, by the terms of the bill of exceptions, that the defendant, also, had had criminal intercourse with her about the same time, it was correct to confine the defendant to proof of the general character of the mother.

The judgment of the district Court, first mentioned, I am of opinion, for the reasons stated, ought to be reversed, and the second judgment, being founded on that, and partaking of some of its errors, ought also to be reversed, and judgment entered for the defendant.

JUDGE ROANE. The judgment of the district Court, of the 12th of April, 1803, being -embraced by the supersedeas now before us, which issued within five years from the time of the rendition thereof, and that judgment having affirmed the judgment of the county Court, of February 22d, 1802, the affirmed judgment is also subjected to the power of this Court; although, otherwise, it would have been exempted, by reason of its antiquity. If that judgment shall be found to be erroneous, and be reversed, it will be unnecessary to inquire into the legality of the subsequent proceedings, which will consequently fall to the ground.

That judgment is compounded of two parts; the first relating to the past time, and the second in relation to the future in-stalments of the charge supposed necessary for the support of the bastard.

As to the first part of that judgment, while it was conceded by the Court that the bastard had not, in fact, been supported by the county, and that no binding engagements had been entered into for that purpose, the Court deemed itself at liberty to impose the charge by way of retrospect, and to coerce the money from the appellant, when, for any thing appearing in the cause, the overseers were not com-pellable to pay it over for the support of the child. This appears to me to be a misconstruction of the act. That act relates only to cases in which the bastard is chargeable, or is likely to become chargeable, *to the county, and not to cases in which the child is neither actually sustained by the county, nor has any contract been incurred by it for ihat purpose. The power of the Court is only coeval with the commencement of the charge, and does not precede it. On this ground, then, the judgment is erroneous, and must be reversed; and it appearing, from the case exhibited, that no judgment ought to be rendered for the appellees, as to the previous time, the case would end here, were it not for that part of the judgment which relates to the future instal-ments, as to which the power of the Court not being precluded by any statement of facts proved or agreed in the case, the cause, on reversal, either for the vice of the first part of the judgment just noticed, or for error in the judgment of the Court, in the proceedings, to the injury of the appellant, will go back to be proceeded in as to such future instalments. It is here to be remarked, that, although, in the subsequent motion on the recognisance, made in the county Court, October 25th, 1804, a judgment for the future instalments is waived as at the time, yet the right to move therefore, in future, is expressly reserved. There is, consequently, a subsisting judgment as to them, which it is necessary for this Court to act upon: and this brings us to the case made by the first bill of exceptions.

It appears from that bill that, in a case in which the appellees charge, and put in issue, the fact of the appellant’s being the father of the bastard, and in which this fact was proved by the oath of the mother only, who also swore that there was no possibility of her being mistaken in that particular, the appellant was prohibited from proving that, about nine months previous to the birth of the child, she had carnal connexion with other men. This decision of the Court was founded on the principle (as I infer from the bill) that that evidence might criminate persons not before the Court, and that no particular facts ought to be proved against the witness.

As to the last of these principles, it is, undoubtedly, a ^general rule of evidence, that you can examine only as to the general character of a witness, and not to particular facts; on the ground that every one is supposed capable of supporting the one, but it is not likely that he is prepared to answer the other without notice, It is an exception to this rule, however, that in all cases in which the general character or behaviour is put in issue, evidence of particular facts may be admitted; for whatever is material to the issue, each party must come prepared to prove, or to deny. Thus, in actions of crim. con., the defendant may give evidence of particular facts of the wife’s adultery with others; for, by bringing the action, the husband puts her general character in issue, In the case where the character is put in issue, that character is not incidentally and collaterally brought in question, as is generally the case with respect to witnesses; and, therefore, there is no incompetency supposed to exist to repel the charges which may be brought against it.

In the case before us, the general character of the witness, the mother of the child, is emphatically put in issue. The appellees affirm that she had no commerce with another man, so as that that other man might have been the father; and the appellant ought not to suffer, if another man was, or might have been, the father of the child. You, therefore, prevent his disproving the averment of the appellees, and condemn him unheard, unless you permit him to show that another man was, or might have been, the father. The very point in issue, and the only point, was, whether he, or another, was the father of the child : and the appellant had no means of falsifying the charge brought against him, but by exhibiting the testimony which the Court rejected. As it is, in most cases, impossible for the party charged to prove, negatively, that he was not the father of the child, the rejection of the evidence, in question, would operate in all cases to promote injustice: it would be to put a charge in issue against a man, and deprive him of the only possible means of ^showing its falsity. Besides, that evidence seems legalized, if not called for, by the allegation of the witness, that it was impossible for any other person than the appellant to have been the father of the child.

Whatever protection the law allows a party in repelling particular' charges against the character of his witnesses, when only collaterally brought in question, there is no rule of evidence which prohibits a party from showing the falsity of a fact, stated on oath by a witness, and tending to operate to his injury.

The other ground of the opinion of the Court, rejecting the testimony in question, was, that it is unjust and improper to criminate third persons by the introduction of such testimony; meaning (I presume) the persons alleged to have had carnal connexion with the mother. It is true that the characters or feelings of third persons are neither to be sported with in a Court of justice, nor shall indecent evidence be introduced without necessity; but, where either the one or the other becomes necessary to effectuate the purposes of justice, it must be submitted to, as the lesser of evils. This doctrine, in all its parts, is explicitly and forcibly laid down by the English Court of king’s bench, in the case of Da Costa v. Jones, Cowp. 729.

But it is supposed that this judgment, even in relation to the future instalments, is not sustainable; because the act requires, as a preliminary, that the Court should be satisfied that the party charged is the father of the bastard, and that such bastard is likely to become chargeable to the county; which last fact, it is also supposed, is not stated as the ground and foundation of this judgment. I conceive this to be incorrect. The judgment of the Court is based upon the averment, that “it appeared to the Court that the appellant is guilty of the charge alleged against him in the recognisance:” and that charge, when the recognisance is inspected, is found to be, that the appellant got the party complaining with child, “which child is likely to become chargeable to the county.” *Unless the charge be thus conjunctly considered, it amounts to nothing but a charge of getting her with child, which, standing singly, might be incompetent to give cognizance to the Court. Admit, however, that we were at liberty to separate and garble this charge, it ought not to be done; as every construction should be adopted to support, rather than reverse, the judgments of the Courts below. The judgment, in this case, therefore, affirms all those facts, (by referring to the recognisance,) which are necessary to give the county Court complete jurisdiction : and, therefore, the question does not arise, in this case, whether such an affirmation in the judgment be absolutely necessary. Without going at all into that question, at present, the case of Preston v. The Auditor, 1 Call, 475, is a conclusive authority that'a general averment, that the necessary facts appeared to the Court, is sufficient. While this general averment in the case before us is afterwards annihilated, and done away, in relation to the previous instalments, by the particular facts, inconsistent therewith, agreed between the' parties, it remains in full force as to the subsequent instalments. There is not, therefore, a vice, in this part of the judgment, which should extinguish and destroy it altogether.

My opinion, therefore, is, that the Court erred in giving judgment at all in relation to the previous instalments, for the reasons stated, and erred, to the appellant’s injury, in disallowing the rejected testimony: and that the judgment be reversed, and the cause remanded, to be proceeded in, in relation to the future instalments; in which future proceeding, the rejected evidence ought’ to be admitted.

JUDGE Fleming. Deeming it unnecessary, in this case, to consider whether evidence tending to criminate a person, not before the Court, be admissible ■or not, my opinion is formed on other grounds.

It is an uncontroverted principle of law, that, in all prosecutions on penal statutes, the strict letter of the law ’"'must be pursued, and nothing admitted by inference, or implication; the proceedings in the prosecution before ms, .then, are erroneous from their foundation.

In an act “providing for the poor,” &c. passed the 26th of December, 1792, sect. 18, it is enacted, that “if any single woman, not being a servant or slave, shall be delivered of a bastard child, which shall be chargeable, or likely to become chargeable, to any county, and shall, upon examination before any justice of the peace, of the county, to be taken in writing, upon oath, charge any person, not being a servant, with being the father of such bastard child, it snail and may be lawful for any justice of the peace of the ‘county,’ wherein the person so charged shall be a resident, or inhabitant, upon application made to him, by the Overseers of the Poor, or any one of them, of the county wherein such child shall be born, to issue his warrant for the immediate apprehending of the person so charged as aforesaid,’’ (to wit, with being the father of such bastard child,) “and for bringing him before such justice, or before any other justice of the county,’’ &c. &c.

It appears from the record, that the re-cognisance, under which the present prosecution is carried on, is the third he has been compelled to enter into for the same cause; the first of which was dismissed on the 17th of August, 1796, the Court being of opinion that the recognisance was improperly taken. On a second prosecution, for the same alleged offence, the said appellant, Pall, appeared in Augusta county Court, on the 18th of October, 1796, “in discharge of his recognisance, entered into at the instance of the Overseers of the Poor; and no person appearing to prosecute, the said Pall is discharged.” Thus the matter rested, until the month of November, 1797, when he was carried before Mr. Justice Swoope, and compelled to enter into a third recognisance, in which the justice states, “that Catharine Thyrey, •of the said county, single woman, hath, by her examination, on oath, before me, de-, dared, that on the 15th day of January, *1796, last, she was delivered of a bastard child, in the county aforesaid, which is likely to become chargeable to the said county, and hath charged the above-bound Daniel Pall, with having gotten her with child; now, if,” &c. : which he might have done a dozen times, and not have been liable to this prosecution ; inasmuch as it is not stated that the woman ever charged him with being the iather of the child aforesaid, born on the 15th of January, 1796, -which the law expressly requires, to authorize a prosecution, by the Overseers of the Poor, on that statute; and, in my apprehension, no subsequent proceedings have cured, or can ■cure, this radical defect in the prosecution. It is a well-settied rule of law, and has been often decided by this Court, that, in common civil suits, the plaintiff must show, by averment in the declaration, a just cause of action, or it will be error, even after verdict and judgment, How much more forcibly does the rule appty, in criminal prosecutions, under a penal statute? The law being explicit in requiring a direct charge, upon oath, that the delinquent is the father of such bastard child, before a prosecution can be legally commenced; and there being no such charge in the whole record, I am clearly of opinion, that the judgments in both Courts are erroneous, and ought to be reversed, and the whole proceedings quashed, and judgment entered for the defendant. 
      
       Esp. N. P. 790.
     
      
       Ibid. 788, 790.
     
      
       Ibid. 788.
     
      
       See Moore’s administrator v. Dawney, 3 H. & M. 137, Lomax v. Hord, ibid. 271; Gordon and others v. Browne’s executor, ibid. 219, andmany other cases.
     