Tioga County v. South Creek Township

• Decision Date: 23 March 1874
• Citation: 75 Pa. 433
• Parties: Tioga County <I>versus</I> South Creek Township.
• Court: Pennsylvania Supreme Court

75 Pa. 433

Tioga County versus South Creek Township.

Supreme Court of Pennsylvania.

March 12, 1874.

March 23, 1874.

March 12th 1874.

Before AGNEW, C. J., SHARSWOOD, MERCUR and GORDON, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Quarter Sessions of Bradford county: No. 299, to January Term 1874 J. B. Niles (with whom was H. B. Packer), for plaintiff in error.—Marriage procured by fraud or force is void ab initio: 2 Kent's Com. 76; 2 Parsons Contr. 81, 319. Duress may exist by a threat: Chitty Contr. 193. Either husband or wife may testify in a collateral proceeding, although the evidence may tend to criminate or contradict the other, &c.: 1 Greenl. Ev., sect. 342; 1 Phillips Ev. 71; Fitch v. Hill, 11 Mass. R. 286; Griffin v. Brown, 2 Pick. 308. If non-access be proved the issue is illegitimate: Pendrell v. Pendrell, 2 Strange 925. A wife may prove her criminal intercourse with another than her husband: Commonwealth v. Shepherd, 6 Binn. 283; Commonwealth v. Stricker, 1 Brown 47 (Ap.); Commonwealth v. Connelly, 1 Id. 283; Commonwealth v. Wentz, 1 Ashmead 269; 1 Whart. Crim. L. 769. The Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Br. Purd. 624, pl. 16, makes the wife a competent witness.

H. N. Williams (with whom was W. H. Carnochan), for defendant in error.—The first order of removal was conclusive as to the settlement of the pauper: Sugar Loaf Overseers v. Schuylkill Co. Directors, 8 Wright 481; Sugar Creek v. Washington, 12 P. F. Smith 479. Marriage does not require a particular form of solemnization: Commonwealth v. Stump, 3 P. F. Smith 132; Barnett v. Kimmell, 11 Casey 13; Jackson v. Winner, 7 Wendell 47. Husband nor wife can testify as to non-access: Dennison v. Page, 5 Casey 420; 1 Black. Com. 456, note 21. The exclusion is on account of public policy: 1 Greenl. Ev., sect. 344. The policy referred to in the Act of 1869 is not the policy which relates to maintaining decency and morality.

The opinion of the court was delivered, March 23d 1874, by GORDON, J.

This case might well have been decided on the ground that the order of removal of 16th December 1871, never having been appealed from, was final and conclusive as to the settlement of the pauper. That order was well executed by his delivery to the Commissioners of Tioga county, though directed to the Overseers of Covington township, because the commissioners represented the several poor districts of that county. Instead of returning the pauper to South Creek township, they should have appealed to the next Court of Quarter Sessions. Not having done so, the order became conclusive and amounted to a final adjudication: Sugar Creek v. Washington, 12 P. F. Smith 479.

It was, however, properly decided in the court below upon the evidence. The determination of the case depended upon the question of the admissibility of the testimony of the parents to bastardize their child born to them after wedlock. Exclude this, and nothing is left to controvert the fact that the settlement of the pauper was in Covington township, for that was the settlement of his father, and there is no evidence whatever going to show that he had gained a new one for himself.

That issue born in wedlock, though begotten before, is presumptively legitimate is an axiom of law so well established, that to cite authorities in support of it, would be a mere waste of time. So the rule that the parents will not be permitted to...