Laws

3 the reputed father Post Date: Wed, 30 Jul 2008 21:15:41 +0000
Prince v Gund- away, 157 Mas S 417; Duhamell v Du- cette, 118 Mas S 571 Defective Examination of Woma N An examination of the woman which does not appear to have been taken within three years from the birth of the child is defective and may be quashed, but the defect is not necessarily fatal, and all objection on that account is waived if not made in the regular mode and at the proper ti Me The objection should be made before the issue is tendere d State v Robeson, 2 Ire d (N Car) 46; State v Carson, 2 Dev B (N Car) 368 Defect in Process for Appearanc e After appearance and answer to the merits it is too late to object to the process for appearanc e Miller v Co M, i Bibb (Ky) 404; Schooler v Co M, i Litt Se L Ca S (Ky) 88; Wil- son -v Pike County Judge, 18 Ala 757; Bookhout - U State, 66 Wi S 415; Hawes v Gustin, 2 Allen (Mas S) 402 If a defendant appears in person, pleads, and makes defense by counsel, he waives any objection which he might have taken to the irregularity of the proceedings under which he was arrested and gave bonds for his appearanc e State v Sarratt, 14 Rich ( S Car) 29 Improper Treatment upon ArreSt After the defendant has appeared in the trial court according to the condi- tionof his bond, pleaded not guilty, and put himself upon the county, it is too late for him to object for the first time that he was not rightfully treated upon his arrest by the justice before whom he was take N McCabe v Dowd, 7 Allen (Mas S) 477 1 Trawick v Davis, 4 Ala 330 See Foster v Beaty, i Me 304; Tholke v State, 50 Ind 355; Schooler v Co M, 6 Litt Se L Ca S (Ky) 8q; Walker v Co M, 3 A K Marsh (Ky) 356 Com- pare Little v Dickinson, 29 N H 56 2 Where by statute the Superior Court is authorized to try any case by consent at a term devoted exclusively to criminal actions, and a bastardy proceeding is regularly tried, the de- fendant making no objection until after verdict held, that the defend- ant is deemed to have assented to the trial, and his objection was not in apt ti Me State v Giles, 103 N Car 391 Where a motion was made in the court below to quash the affidavit and writ issued thereon because the com- plaint was made by a person other than the mother, which the court overruled, but no exception was taken thereto, nor was there anything in the record to show by whom the complaint was made, and the trial resulted ad- versely to the defendant held, the objection which was the ground of the motion to quash could not be availed of on motion in arrest of judgment. Jones v People, 53 111 366 3 "Guilt Y" In a bastardy pro- ceeding a verdict of "guilty" is re- sponsive to the charge in such pro- ceeding and is substantially goo d A more formal verdict would be "guilty of being the father of the chil d" But the former comprehends the latTer Davis v People, 50 111 199 Where the finding of the jury in a bastardy trial was "guilty," and the justices made the entry of it in these words, " That the defendant, S g, was guilty, and the putative father of the said bastard child " held, that the verdict of guilty could mean noth- ing else than that the defendant was guilty of the accusation, or, in other words, was the father of the child; and the justices were justified in making the entry in form, according to the necessary meaning of the findin g Gaskill v Overseer of Poor, 36 N J L 356 Responsive to Issue by Ple A Under a statute requiring the court to cause an issue to be made up " whether 3 Judgment# JURISDICTION TO RENDER (i) Generall Y The jurisdiction of the courts to render judgment, upon convic- tion of the person accused of being the father of a bastard child, is variously provided for by statute in the different state S 1 The usual practice is to make an order, based on the judgment, against the defendant which shall include a reasonable allowance for the past as well as the future maintenance of the child ; a but the amount of such maintenance is a matter resting largely in the dis- cretion of the court. 3 the reputed father is the real father or not," the court propounded an issue as to whether defendant, "the reputed father of a certain child, a daughter of M A d, late M A B, is the real father of such child or not," to which defendant demurred, and the demurrer being overruled he pleaded over, asserting that he was not guilty of being the father of the bas- tard child in this case name d Held, that the proper mode of objecting to the issue tendered would have been by exception, but that as by the plea a proper issue was made up and sub- mitted, a verdict that defendant was the real father of said child was di- rectly responsiv e Austin v Pickett, 9 Ala 102 Mere Informalit Y Informality in the verdict rendered where the intention of the jury is manifest should be disregarded ; hence, where the ver- dict was, " We, the jury in the above- entitled case, find the defendant guilty," such verdict was held suffi- cient, as no one could misunderstand what the jury intended by it, nor to what case it relate d State v Snure, 29 Min N 132 Sufficiency of Verdi Ct The verdict of a jury that finds that the relatrix was delivered of a bastard child and that the defendant is the father, is suffi- cient.

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Where, upon the death Post Date: Wed, 30 Jul 2008 21:03:10 +0000
Cunningham v State, 35 Ind Where the finding of the court, in a prosecution for the maintenance of a bastard child, was, " That the facts in said original and supplemental com- plaints are alleged, and, therefore, the court doth adjudge the said A B to be the reputed father of said child," such finding was held to be insufficient and the judgment rendered thereon erroneou S Judson v Blanchard, 3 Con N 579 Child Born Aliv e A general verdict for the plaintiff, " and that the defend- ant is the father of the bastard child," is good against a motion for a -venire de novo, and need not state that the child was born aliv e Mobley v State, 83 Ind 92 Verdict should Conform to Statut e If the jury only find the defendant the reputed father of the child, they leave the fact where they found it; and such finding does not conform to the statut e The verdict should be that the defendant is guilty of being the father of the chil d Devinney v State, Wright (Ohio) 564 1 See Coburn v Mahaska County, 4 Greene (Iowa) 242 ; Black Hawk County v Cotter, 32 Iowa 125; Fall v Overseers of Poor, 3 Munf ( Va) 495; State v Ingrohn, 4 Hay W (Tenn) 221; Steele v Register, 3 Hay W (Tenn) 37; Bennett v Hall, i Con N 417 2 State v Beatty, 66 N Car 648 And in such order of maintenance the court may include an allowance of expenses connected with the birth of the chil d State v Zeitler, 35 Min N 238; State v Eichmiller, 35 Min N 240; Hoffman v State, 17 Wi S 596; Speiger v State, 32 Wi S 400; Jerdee W State, 36 Wi S 170; Comstock v Weed, 2 Con N -155; Bennett v Hall, i Con N 417; Judson v Blanch- ard, 4 Con N 566; Sheffer v Rempub- licam, 3 Yeates (Pa) 39 But see Co M v Cole, 5 Mas S 518; Allen v State, 4 Blackf (Ind) 123 The expenses attending the birth of a bastard child, when allowed by the court under statute, should be ascertained by proof, and not other- wise, so that the defendant may have an opportunity to contest the fact S Andrew g v Catherine A, 16 Fla 830 Delay in Instituting Proceeding S When there is considerable delay in instituting proceedings, expenses ac- cruing prior to that time will not be allowe d Dunham v Watson, 24 Neb 779 Default The order of maintenance may be made upon de- fault of the defendant to appear and answeR1 (2) Special Court S Where by statute two justices are author- ized, upon complaint of the overseers of the poor, to make an order of filiation for the maintenance of a bastard child, such order can be made only in the county in which the child is born, and then only for the relief of the township where the child is born ; 2 and as long as the mother is in good circumstances and shall be required to pay for the main- tenance of the child rests largely in the discretion of the court; and the character, wealth, and situation in life of the parties may properly be taken into consideratio N Rindskopf v State, 34\Vi S 218; Jerdee v State, 36 Wi S 170; Hoffman v State, 17 Wi S 596; Mills County v Hamaker, II Iowa 209 What is a Sufficient Amount A judg- ment in a bastardy case that the de- fendant pay one hundred dollars forthwith and fifty dollars a year until seven hundred dollars shall have been paid, was held not to be excessive, it not appearing that such amount was more than sufficient to maintain the chil d State v Ginger, 80 Iowa 580 Where Twins are Bor N Where a com- plaint charges the defendant with being the father of a child which when born will be a bastard, and subse- quently the woman making the com- plaint gives birth to twins, it is not erroneous to render judgment, upon conviction, for the payment of the same amount as if only one child had been bor N Connelly v People, 81 111 Deferred Payments IntereSt It is within the discretion of the court, in making an order of maintenance, to render its judgment so that deferred payments shall draw intereSt Morris v State, 115 Ind 282 1 Blood v Morrill, 17 Vt 598 Maine Where a defendant duly served with process, and having given a valid bond for his appearance to abide the order of the court upon the complaint, submits to a default before the declaration required of the com- plainant has been filed, the judge may proceed thereupon, after the filing of such declaration, to adjudge him to be the father of the child and to stand charged with its maintenance; and it is not necessary to the validity of the judgment to renew the entry of a de- fault after the filing of such declara- tio N Priest v Soule, 70 Me 414 Entry of Judgment upon Day of De- fault. The respondent in a complaint under the Mas S Bastardy Act was defaulted for failing to appear when the case was called for trial, and on the same day a judgment was en- tered against hi M Held, that Pu b Stat, C 171, i, providing that " the court may enter up judgment upon default at any time after four days from the day of default," does not apply to bastardy proceedings, and that a judgment in such proceedings is not irregular because entered on the day of a Default Keith v Mc- Caffrey, 145 Mas S 18 2 Dally v Overseers of Wood- bridge, 21 N J L 491; Quick v Overseers of Amwell, 3 N J L 569; State v Biddleman, 17 N J L 20; Hawkins v State, 21 N J L 630 Time of OrdeRAnd an order of filia- tion may be made at any time after the bastard is born, but cannot be made before its birth or after it is twenty-one years of ag e In re Mur- phy, 23 N J L 180 Power of Justices to make a Second OrdeRWhere an order of filiation has been made in a bastardy proceeding, and it is afterwards, by the consent of the parties, quashed by the Court of Sessions that a second order may be made, a second order by two justices out of session is valid and cannot be impeached collaterall Y People v Relyea, 16 John S ( N Y) 155 Sufficiency of OrdeRWhere an order determines in the usual form that the child is chargeable to the township, the absence of evidence of payment or agreement to pay for the support of the mother and child is not sufficient to show that the child was not so chargeabl e Gaskill v Overseers of Poor, 36 N J L 356, distinguishing Anonymous, 3 N J L 435 New York Allowance of Lying in does not apply for relief or put her child on the town, it seems that no order should be mad e 1 But where one is made it must be executed by the justices jointly, 8 and is then conclusive upon the person adjudged to be the putative father, unless reversed or modified on appea L 3 b FORM AND SUFFICIENC Y In general the judgment ren- dered by a court against the person found to be the father of a bastard child should conform substantially to the statutory requirement S 4 In some states it is held that it must contain an Expense S Where a bastard child is likely to become chargeable to a town, the justices may make an order upon the overseers of the poor for the lying- in expenses of the mother before the birth; and after the birth they may make an order of filiation upon the putative father, and order him to pay those expenses in gross: and this even though nothing has been paid by the overseers under the first order, the question of payment properly arising when the town seeks to enforce the ordeROverseers of Minden v Cox, 7 Co W ( N Y) 235 1 Anonymous, 3 N J L 435 2 The making of an order of filia- tion is a judicial act which must be executed by two justices jointly, and not separatel Y Therefore an order signed by each justice, in the absence of the other, though agreed upon when they were together, is erroneous and must be quashe d State v Prall, 10 N J L 161; State v Joslin, 13 N J L 267 3 Overseers v Ely, Hill d Supp ( N Y) 379; Wallsworth v Mead, 9 John S ( N Y)367; People v Relyea, 16 John S ( N Y) 153 Vacating OrdeRAn order for the maintenance of a bastard child, legally made by two justices, cannot be after- wards vacated by two other justice S Carpenter v Whitman, 15 John S ( N Y) 208 Effect of Judgment for Cost S Where a person accused of being the father of a bastard child, or of a child likely to be born a bastard, is adjudged to be such father by two justices, they are to make an order of filiation, etc, and shall certify the reasonable costs of apprehending the said father and the costs of filiation; and as long as their decision exists the justices' order de- termining the amount of such costs cannot be reviewed collaterall Y Dun- ham v Monel L Hill d Supp ( N Y)377 4 John d C v State, 16 Fla 554 Illinoi S Where the decision ren- dered by the court against a defendant in a bastardy prosecution provided for payment in instalments, the judgment concluding that he should " give good and sufficient bond herein, with secu- rity to be approved by this court, con- ditioned and made payable as by the statute in such case made and provid- ed, and that he be committed to the common jail" of the county, there to be confined until he should give such bond or be otherwise discharged, it was held that the judgment in form was a substantial compliance with the statute, and propeRRich v People, 66 111 513 Alabama A judgment by which the defendant is condemned to pay the sum of fifty dollars a year for ten years towards the maintenance and education of the child, and that he enter into a bond and security for the due and faithful payment of the said sums of money, as by statute required, is regulaRAustin v Pickett, 9 Ala 102 Where County is Substituted as Com- plainant. Where, upon the death of the mother, the proper county has been substituted as complainant, the judgment and order of the court upon a verdict of guilty should require the reputed father to give security to save the county harmles S Dodge County v Kemnitz, 38 Neb 554 Necessity that Judgment should Pursue Findin g Where it appeared by the indictment that the parties all resided in one county, and on this indictment a verdict was rendered against the party charged, and the judgment on that verdict, so far from pursuing its finding, directed a recognizance to in- demnify a different county held, that such judgment was erroneou S Root v State, 10 Gill J (Md) 374 Necessity that Judgment should Show Jurisdictio N In an order of mainte- express adjudication that the accused is the putative father of the bastar d 1 It should also definitely point out and fix the liability of the defendant : 2 but it seems that the judgment should not direct the issuing of execution in case of nonpayment.

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Rindskopf v State, 34 Wi Post Date: Wed, 30 Jul 2008 20:50:29 +0000
3 It issuing nance made by a county court the place of birth of the child must be set forth, that it may appear that the county court has jurisdiction, and that the child was born in the county to which the relief is ordere d Edmonds v State, 5 Humph (Tenn) 94 Order of Two Justice S An order made by two justices in a bastardy case must recite such facts as show their jurisdictio N Tompkins v Schomp, 45 N J L 491 Use of Word " County," where Town is Chargeable New York Though Laws N Y 1886, C 155, makes each town in the county chargeable with its own poor, yet where an order of filiation required the defendant to pay to the overseers of the poor for the support of a bastard child, a certain sum weekly as long as the child should con- tinue chargeable to said county, it was held that the use of the word ' 'county" instead of "town" was harmless and in no way prejudicial to the defendant, since the undertaking required of him is prescribed by N Y Code Cri M Pro, 851; and defendant was com- mitted until he should be discharged by the Court of Sessions, or should deliver an undertaking required by said justices, as prescribed by Code Cri M Pro ,851 People v Leavitt (Supreme Ct), 15 N Y Supp 618 1 Co M v Clark, 2 Mas S 156; Spurgeon v Clemmons, 6 Neb 307; Sperger v State, 32 Wi S 400; Devin- ney v State, Wright (Ohio) 564 Where the Verdict Affirms the Fa Ct Where the verdict affirms that the de- fendant is the real father of the bas- tard, it is sufficient; and a judgment thereon which condemns the defend- ant to the payment of the sum pre- scribed by law as a consequence of the paternity, and directs a bond to be executed with surety for the annual payment of the sum adjudged, though not entirely formal, will be sustaine d Berryman v Lawrence County Judge, 9 Ala 455- Where the jury in a bastardy trial found that the defendant was the father of the child, and the court ren- dered a final judgment on the verdict, it was held not to be error that the court did not formally adjudge the defendant to be the fatheRDean v State, 29 Ind 483 Connecticut It is sufficient, to sup- port an order for the maintenance of a bastard child, that the court find the defendant guilty, in manner and form as set forth in the complaint, without expressly adjudging him to be the putative fatheRComstock v Weed, 2 Con N 155 See also Fuller v Hamp- ton, 5 Con N 417; Bennett v Hall, i Con N 417 2 Cross -v People, 10 Mich 24 An order of filiation and maintenance may be made against both or either of the parents; and it is no objection that the father alone is charged with the maintenance of the bastard chil d Tyrrel v Overseers of Poor, 27 N J L 416 See also Hull v People, 41 Mich 167 In Connecticut it was early held that the order for maintenance must be for a time specified, and not during the pleasure of the court. Cheesborough v Baldwin, i Root (Con N) 230; Bene- dict v Roberts, 2 Root (Con N) 497 Maine An order on the putative father to pay a sum of money weekly till the further order of the court is warranted by statut e Mariner v Dyer, 2 Me 165 Minnesota A judgment in bastardy proceedings requiring the defendant to pay a given sum per year, without fixing the length of time during which the payments shall continue, is not on that account erroneous; the judgment in this respect being subject to the future order of the court, upon a showing that maintenance is no longer necessar Y State v Eichmiller, 35 Min N 240 Continuance of the Child's Lif e Where the order of filiation finds that the de- fendant is the father of the child, a further order that he pay a specified sum monthly for thirteen years will not be reversed because it does not, in terms, make the obligation to continue such payments depend upon the con- tinuance of the child's life, such being the legal effect of the judgment. Rindskopf v State, 34 Wi S 218 3 Cooper v State, 4 Biackf (Ind) should, however, direct to whom the payments adjudged against the defendant should be mad e 1 C AMENDMENT S A judgment may, it seems, be amended, where the mistake sought to be corrected is a clerical mis- prisio N 2 d ENFORCEMENT.

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Wilson S Pike County Judge Post Date: Wed, 30 Jul 2008 20:39:44 +0000
Ordinarily the mode of enforcing an order of filiation and maintenance is by scire facias or action of Debt 3 316; Mills County v Hamaker, u Iowa 206 See d Enforcement, infr A But in Trawick v Davis, 4 Ala 328, it was held that a direction in the judgment against the father of a bas- tard child, that an execution issue theieon for each default in the pay- ments of the sums adjudged to be paid, was regulaR1 Dickerson v Gray, 2 Blackf (Ind) 230 A judgment that "it is considered and adjudged and ordered that, for the maintenance of the said bastard child, the said plaintiff do recover against the defendant to and for the uses prescribed by law," etc, is substantially goo d It is equivalent to ordering the money to be paid to ihe party who shall main- tain the child or become entitled to the same by la W Neff v State, 3 Ind The failure of a judgment to direct to whom the annual payments should be made does not invalidate the judg- ment. Livingston v People, 48 111 App 109 Where Proceedings are not by the MotheRIt seems that where the dis- tinction between town and county poor has been abolished, the order of filia- tion may still be made in the name of the overseers of the poor as well as in the name of the superintendents; and the suit upon such order must, of course, be brought in their name S Overseers v Ely, Hill d Supp ( N Y) 379- Who May Eecover Indiana The judgment against the defendant may be, that he pay the mother, for the support of the child, a certain sum per annum for five years, etc Beeman v Stat e 5 Blackf (Ind) 165 Florida In Andrew g v Catherine A, 16 Fla 830, it was held that a judgment whereby the mother re- covers the moneys adjudged is er- roneous, and that the recovery should be in the name of the stat e Michiga N Where the prosecution is on the part of the woman, the judg- ment or order should provide for pay- ment to her or to the county superin- tendent of the poor, or to both in some specified proportio N Hull v People, 41 Mich 167 Where Judgment is Rendered after Trial in Absence of Defendant A judg- ment rendered by the Circuit Court against the defendant, after a trial in his absence, should be for the recovery of a specific sum, with directions that it shall, when collected, be paid for the maintenance of the child, in such in- stalments and at such times as the court shall think propeRHunter v State, 6 Blackf (Ind) 382 Necessity that Judgment should State in Whose Favor It is Rendere d A judg- ment rendered by the trial court, un- der the Bastardy Act, though not in favor of any person by name as plain- tiff, is nevertheless sufficiently specific, since the statute points out with cer- tainty who is the plaintiff Scale v McClanahan, 21 Ala 345; Yarborough v Shelby County Judge, 15 Ala 556 2 Where the statute prescribes that an annual payment for ten years is all the defendant can be condemned to pay, a judgment against the father of a bastard, that he "pay the sum of forty dollars annually for ten years, to wit, forty dollars now and forty dollars every year for ten years after- wards," was erroneous; but as the judgment shows upon its face that the defendant was condemned to pay " forty dollars annually for ten years," the Supreme Court held that the latter portion of the judgment entry must be treated as a clerical misprision and amendable in that court. Wilson S Pike County Judge, 18 Ala 757 Amendment Nunc pro Tun e A judg- ment against a defendant in a bas- tardy case may be amended at a sub- sequent term, nunc pro tune, so as to require the annual payments to be made on "the first Monday in Jan- uary," as the statute requires, instead of "the first day of Januar Y" Will- iams v State, 29 Ala 9 3 Cooper v State, 4 Blackf (Ind,) In some states, however, the practice is to enforce such an order by execution, 1 and in others to commit the defendant to prison until he complies with the ordeR2 316; Harrington v Ferguson, 2 Blackf (Ind) 42 Foreign Judgment.

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Where, on default Post Date: Wed, 30 Jul 2008 20:22:30 +0000
An action of debt lies in Indiana on a judgment rendered in Ohio against the father of a bastard child, charging him with a certain sum, payable by instalments, for the child's maintenance; but the declaration must show that the plain- tiff had maintained the child, and thus entitled himself to the money sued foRStanfield v Fetters, 7 Blackf (Ind) 553 New York Action by Overseers of PooRAn action lies by the overseers of the poor, on an order of bastardy, to recover of the putative father the weekly sum directed by such order to be pai d Wallsworth v Mead, 9 John S ( N Y)367 Action on an Order In Whose Name Brcught. A suit on an order of filia- tion adjudging a bastard child charge- able to the town or county, and fixing the allowance to be paid by the puta- tive father, cannot be brought by the overseers of the poor of the town, in their names of office alone, but should be brought in their individual names, with the addition of offic e Held, also, that it is no defense to such an action that the town or county has not in fact been subjected to the ex- pense of maintaining the chil d Over- seers v Ely, Hill d Supp ( N Y)37 g An action of assumpsit for the sup- port and maintenance of a bastard child does not lie against the reputed father, notwithstanding the existence of an order of filiation and mainte- nance, except upon a promise, either express or implie d The remedy in such cases is by proceedings under the order of filiation, in the names of the overseers or superintendents of the pooRMoncrief v Ely, 19 Wen d ( N YM03- Action on Judgment Rendered on De- fault. Where, on default in a prose- cution for bastardy, a judgment was rendered against the putative father for money payable by instalments, it was held that an action for debt would lie to enforce such judgment.

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In Indiana no writ other Post Date: Wed, 30 Jul 2008 20:12:05 +0000
Stokes v Sanborn, 45 N H 274 1 Darby v Carson, 9 Ohio 149 Where a mother has recoveied judg- ment upon a previous adjudication that the putative father of her illegiti- mate child should pay to her a sum of money, she is entitled to have exe- cution running against his body not- withstanding he may have been dis- charged, on taking the poor-debtor's oath, from an imprisonment which had been ordered upon his refusal to give bond for the performance of the original adjudicatio N McLaughlin v Whitten, 32 Me 21 Judgment in a bastardy case that "defendant pay, not exceeding fifty dollars," etc, sustained by no evi- dence of a bond having been executed except the mere testimony of the clerk that none could be found in the office, but that defendant's security said he had executed one held, that there could have been no legal foun- dation for an executio N Isaacs v Jefferson County Judge, 5 Stew p (Ala) 402 2 Massachusett S Scire facias does not lie upon an order of the Common Pleas, that the reputed father shall pay a weekly sum towards the mainte- nance of such child, and that he shall give a bond therefor to indemnify the tow N The only mode of enforc- ing the performance of the order is to commit the defendant to prison until he shall compl Y Woodcock z Walker, 14 Mas S 386 Indiana The imprisonment of a judgment defendant in a bastardy proceeding is a means of enforcing the order of the court, and is a part of the remedy to which the relator or the state is entitled; and a failure to pay or replevy the judgment is not to be treated as a contempt of court. Rey- nolds v Lamount, 45 Ind 308 Florida The Circuit Court, being authorized to require security to be given by the defendant for the payment of the amount which he has been con- demned to pay towards the main- tenance of a bastard child, and hav- ing by its judgment directed such bond to be given, has the authority and power to direct the defendant to remain in the custody of the sheriff and to be imprisoned until he complies with its ordeREx p J C H, 17 Fla 362 4 Cost S In some jurisdictions the right to costs is given by statute or is allowed as in civil cases, 1 while in others costs are not awarde d 3 It seems, however, that in any event costs are not allowable where the proceedings are discontinued, dismissed, or quashe d 3 Statutory provisions as to costs in civil cases will usually fix the amount to be awarded where costs are allowed, 4 Necessity of Writ to Authorize Comirit- ment. In Indiana no writ other than the order of the court is necessary to authorize the commitment of the de- fendant in a bastardy proceeding for failure to comply with the final order of the court.

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Lucas v Hawkins, 102 Ind Post Date: Wed, 30 Jul 2008 19:59:40 +0000
State v Mullen, 50 Ind 598 Where Defendant is in Custody when Judgment is Kendere d Where a defendant is in custody when a judgment is rendered against him, it is not erroneous for the court to order that he remain in custody until he gives the bond required by the statut e Yarborough v Shelby County Judge, 15 Ala 556 Where the Trial is in Absence of De- fendant. If the trial be in the absence of the defendant by reason of escape, and the finding be against him, the Circuit Court has power to commit him to jail if he do not replevy the judgment, and he may to that end be arrested upon a bench warrant. Lucas v Hawkins, 102 Ind 64; overruling Patterson v Pressley, 70 Ind 94 Discharge on Habeas Corpu S Where a defendant is imprisoned by virtue of a constitutional statute for failure to comply with the order of the court, it seems that no relief can be afforded him by habeas corpu S Ex p Donahoe, 24 Neb 66; Holderman v Thompson, 105 Ind 112; Reynolds v Lamount, 45 Ind 308 In Lower i.

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Where, in a prosecution for Post Date: Wed, 30 Jul 2008 19:44:12 +0000
Wallick, 25 Ind 68, overruling Byers v State, 20 Ind 47, it was held that, imprisoning the de- fendant for failure to pay or replevy the judgment being legal, the fact that the defendant is unable to replevy the judgment does not entitle him to discharge on habeas corpu S See also Ex p Teague, 41 Ind 278 But where the court has not ac- quired jurisdiction of the cause, owing to the absence of necessary averments in the complaint, a person condemned tocastody will be discharged on habeas corpu S Ex p Hay S 25 Fla 279 1 See Mariner v Dyer, 2 Me 165; Neary v Robinson, 98 N Y 81; Wash- burn v Overseer of Poor, 9 John S ( N Y) 119; Superintendent of Poor v Moore, 12 Wen d ( N Y) 273; Allen v State, 4 Blackf (Ind) 123; Schooler v Co M, 6 Litt Se L Ca S 89; Co M v Turner, 4 Dana (Ky) 512; Jones v State, 14 Neb 210 ; Berryman v County Judge, 9 Ala 455 2 See Tyrrel v Overseers of Poor, 27 N J L 416; Claflin v Hubbard, Brayt ( Vt)38 3 On the discontinuance by the plaintiff of the suit on account of mis- carriage, the defendant is not entitled to cost S Eagan v Bergen, 56 Vt But in Allard v Bingham, 8 Vt 470, it was held that if the complain- ant enters a nonsuit or the proceed- ings are quashed, costs may be taxed in favor of the defendant against the complainant. Admission that Provision had been made for Child's Support. Where, in a prosecution for bastardy, the relatrix files a statement admitting that pro- vision had been made for the support of the child, and dismissing the suit, it is error for the court to render judg- ment for costs against the Defendant Dodd v State, 30 Ind 76 4 Wisconsi N The defendant can only be required to pay the same costs as would be taxable in a civil action sounding in tort, and he cannot be required to pay a specific sum for at- torney's fee S Speiger v State, 32 Wi S 400 See also Jones v State, 14 Neb 210 New York Where an order of fili- ation is reversed, on appeal to the Court of Sessions, and the defendant is discharged on the merits, the costs are to be governed by Code Civ Pro, 3073 Mayham v Allen, 50 Hun ( N Y)343- The prevailing party is entitled to taxable costs only and no others; and where costs are awarded they should be taxed by the clerk and not by the court.

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B Mo N (Ky) 485- 5 Post Date: Wed, 30 Jul 2008 19:31:04 +0000
Fellows v Lane, 67 How Pr ( N Y) 4 35 XI I SECURITY FOR MAINTENANCE 1 When Require d After an order of maintenance based on a judgment of filiation the court is usually authorized to require the putative father to give secu- rity for the performance of its ordeR3 2 To Whom Take N In some states the security has been required to be taken to the governor or the state, 4 while in others it seems that it should be taken in the name of the township to which the child is chargeabl e 5 3 Discharg e The security will be discharged pro tanto by the death of the child ; 6 but not by the removal of the mother and child without the state, 7 nor by the offer of the father to maintain the chil d 8 4 Remedies against the Securit Y In some states provision has been made whereby instalments due on a bastardy bond may be being a civil action, a prosecuting attorney who, on behalf of the state, successfully conducts such an action in the Circuit Court is not entitled, upon affirmance, to the docket fee allowed in misdemeanor case S Pearce v State, 55 Ark 387 1 Massachusett S The mode of en- forcing a judgment for costs in a bas- tardy proceeding is by an execution therefor in the form usual in civil case S Young v Makepeace, 108 Mas S 233 2 New York If the person ad- judged to be the father of a bastard child, and against whom an order of filiation has been made, refuses or neglects to pay the amount certified for the costs of apprehending him and of the order of filiation, the justices may issue a warrant for his commit- ment, though he has executed a bond pursuant to section 14 of the statute, "concerning the support of bas- tard S" People v Stowell, 2 De N ( N Y)I2 7 . 3 Dickerson v Gray, 2 Blackf (Ind) 230; Hamilton v Co M, 3 TB Mo N (Ky) 213; State v Darby, 7 Rich ( S Car) 362; State v Sarratt, 14 Rich ( S Car) 29; People z/Corbett, 8 Wen d ( N Y) 520 New Security When may be Require d Where the recognizance to indem- nify the county for the support of an illegitimate child becomes insufficient by reason of the insolvency of the security, the county court may order trie father to enter into a new recog- nizance; and no appeal lies from such an ordeROldham v State, 5 Gill (Md)g O 4 Miller v Co M, i Bibb (Ky) 404; Thompson v Co M,4T.B Mo N (Ky) 485- 5 Reed v Woo d 32 N J L 418 6 If a bastard die after the order of maintenance, the surety on the bond of the putative father is liable only for the amount of maintenance due at the death of the child, with in- terest from the time when it should have been pai d State v Mitchell, Wright (Ohio) 464 7 Co M v Williams, i J J Marsh (Ky) 3 o8 8 Where the putative father has given a bond to indemnify the town against the maintenance of the child, he cannot relieve himself from liabil- ity to the town by demanding the child at the age of twenty-two months, and offering to maintain it, the mother refusing her assent to part with the chil d Hudson v Hills, 8 N H 417 Desertion of Child byMotheRThe fact that, after proceedings in bastardy, in which the defendant was adjudged to be the father of the child, etc, the mother married and left the state and deserted the child, and that the father offers to rear and educate the child and to give a bond that it shall never become a public expense, does not entitle him to be relieved from the judgment aforesaid or the bond given to secure the same, nor is he entitled to the care and custody of the chil d Olson v Johnson, 23 Min N 301 recovered on motio N 1 In others execution may issue against the sureties in the same way ; 2 but the remedy by motion will not, it seems, preclude a recovery by actio N 3 The action against the security may, in some jurisdictions, be brought in the name of the overseers of the pooR4 The validity of the judgment cannot be attacked in proceedings to enforce the securit Y 5 1 Gillin v Pence, 4 TB Mo N (Ky) 305; Bell v Chapell, z TB Mo N (Ky) 151; Bell v Chapell, 4 T b Mo N (Ky) 486; Hamilton v Co M, 3 TB Mo N (Ky) 213 2 Ver Mont The proceeding against the surety on a bastardy bond taken before a magistrate and returned to the county court may be by motion in the county court, which court may thereupon award execution against such suret Y Garvin v Walsh, 54 Vt 368 In a prosecution for bastardy the respondent gave no other bond than the one given before the justice of the peace, and did not personally appear before the county court.

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A plea of payment Post Date: Wed, 30 Jul 2008 19:18:40 +0000
The county court having ordered the defendant to pay the plaintiff for the support of the child certain sums by instalment, it was held that in scire facias against the sureties of the bond judgment might be rendered for the sums due on such order at the commencement of the action, but not for the present worth of the instalments not yet du e Freeman v Batchelder, 35 Vt 13 Marylan d The policy of the acts of assembly which require the father of a bastard child to indemnify the county against the expense of maintaining it, is effected by putting the person pro- viding for such child in the place of the county, and authorizing him to issue a scire facias upon the recognizance to reimburse himself Mong v State, 10 Gill J (Md) 380 3 Hamilton z/ Co M, 3 TB Mo N (Ky) 213 4 New York Under Code Civ Pro, 882, an action on the bond given to insure the payment of the amounts adjudged against the puta- tive father may properly be brought in the name of the overseers of the poor of the town which is liable for the support of the bastar d Tillotson v Martin, 40 Hun ( N Y) 316 An action on a bastardy bond given to A and B, as overseers of the poor of a certain town, must be brought in the names of the overseers of the poor in office when the suit is commence d Armine v Spencer, 4 Wen d ( N Y) 407 New Jerse Y An overseer of the poor cannot maintain in his own name a suit on a bastardy bond which was taken by and in the name of his pre- decessor in offic e Reed v Wood, 32 N J L 418 5 State v Harmon, 3 Hill ( S Car) 275- Insufficiency of Prior Proceeding S It is no defense to an action on a bond that no costs had been taxed and no process issued against the respondent in the original bastardy process, and that he had no propert Y Hyde v Chapin, n Cus H (Mas S) 197 In a suit on a bond given in a bas- tardy proceeding by an infant, neither the principals nor the sureties can defend on the following grounds: I That it does not appear that the plaintiff made any complaint to the magistrate, previous to her examina- tion by hi M 2 That the complainant should have proceeded by her guard- ian or next friend, and not in her own name onl Y3 That the bond was void because the warrant was made returnable before the justice is- suing it, "or some other justic e" 4 That the warrant was irregular, in that it directed the officer to bring the accused before the justice to find sureties for his personal appearance, etc 5 That the accused party's ap- pearance was by attorney when it should have been by guardia N Mc- Call v Parker, 13 Met (Mas S) 372 Where the putative father has had the benefit of a trial on an appeal before the sessions, and the adjudi- cation of that court has not been removed to a higher tribunal, the ad- judication must stand, and cannot be attacked collaterally in an action on the bond by attempting to show that the putative father was not brought into court properly in the preliminary pro- ceeding S To test that question the judgment and order of the sessions should have been removed to the XII I NEW TRIA L The practice regarding the granting of new trials in bastardy proceedings is governed by the rules regulating the granting of new trials generall Y 1 See article NEW TRIA L Supreme Court. Davis v State, 47 N J L 346 Right to Question Validity of Bon d A judgment of affiliation under the process in which the bond originated does not, in a suit on the bond, pre- clude the defendant from questioning the validity of' such bon d Robinson v Swett, 26 Me 378 Defenses Plea of Payment. A plea of payment, in an action on a bastardy bond, before suit is brought thereon, is a valid defens e State v Fletcher, i Ind App 581 Plea of Infanc Y In an action on a bond of the reputed father of a bastard child, conditioned to indemnify the town, a plea that the defendant was an infant when he executed the obliga- tion is not a good defens e People v Moores, 4 De N ( N Y) 518; Borden- town T P v Wallace, 50 N J L 13 1 Indiana In this state a bastardy prosecution is a civil action, in which the state as a party may obtain a new trial upon a proper showin g Saint v State, 68 Ind 128 The trial proper ends with the find- ing that the defendant is the father, and no question will be raised upon a ruling in the proceedings subsequent to such finding by assigning such rul- ing as a cause for a new tria L Scott v State, 102 Ind 278 Failure to Appoint Guardian ad Lit e M The failure of the court to appoint a guardian ad litem for a minor de- fendant who is being prosecuted for bastardy is not cause for a new tria L Evans v State, 58 Ind 587 Alleged Misconduct of for Y A new trial should not be granted because the jury inspected the features of the child during an adjournment of the court, where they were instructed that they had no right to take into con- sideration the countenance of the chil d La Matt v State, 128 Ind 123 Excessive Judgment.

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