Barber v. State ex rel. Haller

Bartol, J., delivered the opinion of this Court. The main question argued by the counsel in this case, and one upon which its ultimate decision must in a great measure depend, is the legal. operation and effect of the receipt of the 29th of February, 1864, given by Mary Haller to Townsend Barber. We shall therefore proceed to express our opinion upon this question, without referring at this time, particularly, to the form of the pleadings, or the manner in which the question is presented by the record. It is very clear to us that if the order of the Justice of the Peace had been previously passed, fixing the sum to be paid for the maintenance of the child at thirty dollars per annum, a mere receipt for the sum of twenty dollars, although on its face purporting to be in full, would not discharge the conusors.

It has been settled by many cases “ that the payment of a less sum of money than the whole debt, without a release, is no satisfaction of the plaintiff's claim. ’' Jones vs. Ricketts, 7 Md. Rep., 108. 4 G. & J., 305 . 5 Gill, 189 . 15 Md. Rep., 569 . But that is not the question here presented. Nearly five years had elapsed after the birth of the child, before any complaint was made by the mother, or any recognizance required ; during that time the child had remained in her custody. One of the objects of the recognizance being to secure to the custodian of the child a sum to reimburse her for her expenditures in its maintenance, ( 10 G. & J., 383 ,) when executed it would of course relate back to the birth of the child, and under it might he recovered for such «expenditures as had been incurred before its date, a sum not ex ³⁹¹ ceeding thirty dollars a year, to be ascertained by the order of the Justice.

See Eccleston vs. The State, 7 G. & J., 316 . But in such case, if the question were properly presented it would seem, the amount to be recovered in any one action could not exceed the sum of eighty dollars, that being the whole amount of the recognizance. Here the question is whether the mother or other custodian of the child may not, before any order is passed by the Justice fixing the sum, receive any amount less than thirty dollars a year as a full compensation for the maintenance of the child during the time which had elapsed, and whether her receipt therefor will not operate as a discharge ? If done bona fide and without any fraud or deception we think such would be its effect.

Until the recognizance has been given, and the order of the Justice has been passed thereon, fixing the sum to be paid, it cannot be said that there is any certain ascertained sum due by the putative father of the child. The code does not prescribe the sum to be paid, but leaves it to be fixed by the order of the Justice, not to exceed thirty dollars per annum. Until such order is passed, there can be no reason why the custodian of the child may not accept from the putative father any sum she may consider adequate compensation for its past maintenance, and if paid in good faith he would be discharged from his obligation for the period embraced in the settlement. It is argued that these proceedings are in their nature criminal, designed to